Rutenburg v. Twitter, Inc. et al

Filing 21

ORDER DISMISSING CASE FOR LACK OF SUBJECT-MATTER JURISDICTION. Signed by Judge Yvonne Gonzalez Rogers on 4/9/2021. (fs, COURT STAFF) (Filed on 4/9/2021)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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MARIA RUTENBURG,
Plaintiff,

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v.

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TWITTER, INC.,

Case No. 4:21-cv-00548-YGR
ORDER DISMISSING CASE FOR LACK OF
SUBJECT-MATTER JURISDICTION
Re: Dkt. Nos. 11, 16

Defendant.

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United States District Court
Northern District of California

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Plaintiff Maria Rutenburg brings this action against defendant Twitter, Inc. based on

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Twitter’s decisions to: (1) delete, remove, and/or apply warning labels to certain tweets regarding

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dishonest claims of election fraud from former President Donald Trump’s account; and

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(2) suspend and thereafter permanently remove Trump’s Twitter account from the Twitter

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platform.1 As alleged in the complaint and reflected in the record, Twitter took these actions in

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response to Trump’s promotion of a stolen election, as well as the inflammatory tweets to the now

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infamous insurrection at the United States Capitol in January 6, 2021. Based on these actions,

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Rutenburg brings one cause of action, a violation of Rutenburg’s federal constitutional rights

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under the First and Fourteenth Amendments pursuant to 42 U.S.C. section 1983.

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The matter is now before the Court based on the parties’ briefing in response to the Court’s

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Order to Show Cause. (Dkt. No. 16.) Specifically, the Court requested the parties to brief

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whether this action should be dismissed given that Twitter, as a private non-state actor, cannot be

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held liable for the 1983 claim at issue. Having reviewed the parties’ briefing, the Court orders that

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this case be DISMISSED for lack of subject matter jurisdiction.

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Rutenburg commenced this lawsuit on January 22, 2021, two days after current United
States President Joseph R. Biden assumed office.

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Rutenburg filed a motion for a temporary restraining order shortly after commencing this

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action. (See Dkt. No. 9, 10.) The Court summarily denied this motion (see Dkt. No. 11),

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explaining that a fundamental flaw in Rutenburg’s entire case is that the claimed rights under the

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First Amendment (and the corollary claims under the Fourteenth Amendment) cannot be enforced

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against a private entity such as defendant Twitter. See Manhattan Cmty. Access Corp. v. Halleck,

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139 S.Ct. 1921, 1928 (2019) (“The text and original meaning of those Amendments, as well as

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this Court's longstanding precedents, establish that the Free Speech Clause prohibits only

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governmental abridgment of speech. The Free Speech Clause does not prohibit private abridgment

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of speech.” (emphasis in original)); Belgau v. Inslee, 975 F.3d 940, 946 (9th Cir. 2020) (“The
Supreme Court has long held that ‘merely private conduct, however discriminatory or wrongful,’

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United States District Court
Northern District of California

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falls outside the purview of the Fourteenth Amendment.” (citing Blum v. Yaretsky, 457 U.S. 991,

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1002, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982))); Roberts v. AT&T Mobility LLC, 877 F.3d 833,

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837 (9th Cir. 2017) (“A threshold requirement of any constitutional claim is the presence of state

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action. . . . Because the First Amendment right to petition is a guarantee only against abridgment

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by [the] government, . . . state action is a necessary threshold which [a plaintiff] must cross before

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we can even consider whether [a defendant] infringed upon [a plaintiff’s] First Amendment rights

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. . . .” (internal citations and quotation marks omitted)); Flagg Bros., Inc. v. Brooks, 436 U.S. 149,

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157 (1978) (“While as a factual matter any person with sufficient physical power may deprive a

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person of his property, only a State or a private person whose action may be fairly treated as that

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of the State itself . . . may deprive him of an interest encompassed within the Fourteenth

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Amendment's protection . . . .” (internal citations and quotation marks omitted)). Following this

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denial, the Court issued the instant Order to Show Cause. (Dkt. No. 16.)

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A complaint can be dismissed for lack of subject matter jurisdiction if its federal claim is

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“so insubstantial, implausible, foreclosed by prior decisions of this Court, or otherwise completely

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devoid of merit as not to involve a federal controversy.” Steel Co. v. Citizens for a Better Env’t,

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523 U.S. 83, 89 (1998). A court may even “act on its own initiative” to dismiss such an inadequate

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complaint. See, e.g., Lampros v. Baker, 650 F. App’x 354, 355 (9th Cir. 2016) (upholding a sua

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sponte dismissal of a Section 1983 claim because the plaintiff had failed to allege state action).
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Here, in response to the Order to Show Cause, Rutenburg asserts that “Twitter’s conduct

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constitutes state action.” Dkt. No. 17 at 1. This is crucial for Rutenburg to allege because Section

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1983 provides a remedy for the deprivation of federal rights—but only when that deprivation is

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caused by conduct that is “fairly attributable to the State” and therefore undertaken under color of

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state law. See Lugar v. Edmondson Oil Co., 457 U.S. 922, 928, 937 (1982) (emphasis supplied).

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Despite her arguments to the contrary, Twitter is not, in fact, a state actor for purposes of Section

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1983, and therefore cannot be held liable for an alleged deprivation of a federal right.

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As Twitter correctly explains, Lugar sets forth two requirements to determine when

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conduct is attributable to the state. Id. The first requirement concerns the exercise of state
authority. In connection with a violation of the plaintiff’s federal constitutional rights, a defendant

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United States District Court
Northern District of California

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must have “exercise[d] . . . some right or privilege created by the State.” Id. at 937. Meanwhile,

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the second requirement, often described as the “state actor” requirement, asks whether the

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defendant is “a person who may fairly be said to be a state actor.” Id.; see also Collins v.

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Womancare, 878 F.2d 1145, 1151 (9th Cir. 1989).

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Here, Rutenburg’s allegation does not and cannot satisfy these two requirements. First,

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Rutenburg makes no allegation that Twitter exercised any state right or privilege to restrict her

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access to former President Trump’s Tweets. Lugar instructs that the alleged deprivation of

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constitutional rights must be rooted in the exercise of a state’s sovereign power. 457 U.S. at 940;

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see also Florer v. Congregation Pidyon Shevuyim, N.A., 639 F.3d 916, 922-23 (9th Cir. 2011)

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(analyzing a Section 1983 claim in terms of whether the deprivation was caused by the exercise of

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a right or privilege “created by the State”). Instead, Rutenburg points to a supposed delegation of

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authority from former President Trump to operate what she contends is a public forum. See Dkt.

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No. 2 ¶¶ 4, 57. At best, the amended complaint merely describes how Twitter using its own

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technical means reportedly disabled, removed, and otherwise restricted former President Trump’s

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Tweets and accounts. See id. ¶¶ 3, 28, 30, 32, 33, 37, 40, 42, 44, 47. None of this has any

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connection with the exercise of authority by a sovereign state. Thus, the amended complaint fails

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to allege any conduct with a nexus to a state privilege or power.

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Second, Rutenburg’s allegations do not demonstrate that Twitter is an entity that may

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fairly be said to be a state actor. It is undisputed that Twitter is a private company. See Dkt. No. 2

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¶ 14 (“Twitter is a ubiquitous social media company.”); Dkt. No. 17 at 2 (“Twitter is a private

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company.”). Federal courts have uniformly rejected attempts to treat similar social media

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companies as state actors under Section 1983. See, e.g., Prager Univ. v. Google LLC, No. 17-CV-

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06064-LHK, 2018 WL 1471939, at *8 (N.D. Cal. Mar. 26, 2018), aff’d, 951 F.3d 991 (9th Cir.

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2020) (concluding that YouTube did not perform a public function simply by hosting speech on a

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private digital-video platform for the public); Howard v. AOL, 208 F.3d 741, 754 (9th Cir. 2000)

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(finding no subject-matter jurisdiction for a Section 1983 claim because AOL was not a state
actor, even if it allegedly acted as a “quasi-public utility” that involves “a public trust.”); Ebeid v.

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United States District Court
Northern District of California

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Facebook, Inc., No. 18-CV-07030-PJH, 2019 WL 2059662, at *6 (N.D. Cal. May 9, 2019)

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(rejecting the argument that Facebook was a state actor because it allegedly regulated speech in a

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public forum); Nyabwa v. Facebook, No. 2:17-CV-24, 2018 WL 585467, at *1 (S.D. Tex. Jan. 26,

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2018) (finding that the plaintiff had failed to state a First Amendment claim because Facebook

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was not the government); Shulman v. Facebook.com, No. CV 17-764 (JMV), 2017 WL 5129885,

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*4 (D.N.J. Nov. 6, 2017) (rejecting the plaintiff’s constitutional claims against Facebook because

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Facebook was not a state actor); Kinderstart.com LLC v. Google, Inc., No. C06-2057 JFRS, 2007

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WL 831806, *13–15 (N.D. Cal. Mar. 16, 2007) (rejecting arguments that Google was a state actor

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for constitutional claims); Langdon v. Google, Inc., 474 F. Supp. 2d 622, 631–32 (D. Del. 2007)

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(ruling that Google is a private entity not subject to the plaintiff’s constitutional claims); and

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Cyber Promotions, Inc. v. Am. Online, Inc., 948 F. Supp. 436, 442 (E.D. Pa. 1996) (concluding

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that AOL “does not stand in the shoes of the State”). Furthermore, as the United States Supreme

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Court recently recognized, “[m]erely hosting speech by others is not a traditional, exclusive public

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function and does not alone transform private entities into state actors subject to First Amendment

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constraints.” Halleck, 139 S. Ct. at 1930. Simply put, Rutenburg cannot transform Twitter into a

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“state actor” based on an allegation that the company “administered” former President Trump’s

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account, which is all that is alleged in the amended complaint.

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In sum, Rutenburg has failed to demonstrate that Twitter is a state actor sufficient to

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trigger liability for an alleged deprivation of federal rights under Section 1983. Rutenburg

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conflates decisions finding that former President Trump’s usage of Twitter is a public forum,

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constraining his ability to summarily block critics, and impermissibly attempts to extend this

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underlying logic to Twitter. This fails where Twitter is not a state actor, and is not exercising any

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sovereign state authority. Rutenburg’s citations do not persuade, where such cases concern state

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actors, including elected state or local officials. Rutenburg otherwise fails to cite to a single case

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where a Court has found a private non-state actor liable under Section 1983 for alleged violations

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of constitutional rights in similar circumstances.

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United States District Court
Northern District of California

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Accordingly, the foregoing reasons, the Court DISMISSES this action for lack of subject
matter jurisdiction.

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The Clerk of the Court is directed to close this case.

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IT IS SO ORDERED.

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Dated: April 9, 2021

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YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT JUDGE

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