Federal Agency of News LLC et al v. Facebook, Inc.

Filing 44

Order by Judge Lucy H. Koh Granting 40 Motion to Dismiss With Prejudice.(lhklc4, COURT STAFF) (Filed on 1/13/2020)

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Case 5:18-cv-07041-LHK Document 44 Filed 01/13/20 Page 1 of 25 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 SAN JOSE DIVISION United States District Court Northern District of California 11 12 FEDERAL AGENCY OF NEWS LLC, et al., 13 Case No. 18-CV-07041-LHK ORDER GRANTING MOTION TO DISMISS WITH PREJUDICE Plaintiffs, 14 v. Re: Dkt. No. 40 15 FACEBOOK, INC., 16 Defendant. 17 18 Plaintiffs Federal Agency of News LLC (“FAN”) and Evgeniy Zubarev (collectively, 19 “Plaintiffs”) bring suit against Defendant Facebook, Inc. (“Facebook”) because Facebook removed 20 FAN’s Facebook account and page. The Court previously granted Facebook’s motion to dismiss 21 without prejudice. ECF No. 33. Before the Court is Facebook’s second motion to dismiss. ECF 22 No. 40. Having considered the parties’ submissions, the relevant law, and the record in this case, 23 the Court GRANTS Facebook’s motion to dismiss with prejudice. 24 I. 25 26 27 28 BACKGROUND A. Factual Background Plaintiff FAN is a “corporation organized and existing under the laws of the Russian Federation” that “gathers, transmits and supplies domestic and international news reports and 1 Case No. 18-CV-07041-LHK ORDER GRANTING MOTION TO DISMISS WITH PREJUDICE Case 5:18-cv-07041-LHK Document 44 Filed 01/13/20 Page 2 of 25 1 other publications of public interest.” ECF No. 36 (“First Amended Complaint” or “FAC”) ¶¶ 2, 5. 2 Plaintiff Evgeniy Zubarev is “the sole shareholder and General Director of FAN.” Id. ¶ 6. 3 Defendant Facebook operates an online social media and social networking platform on which 4 users like FAN can disseminate content by publishing on the users’ Facebook page “posts and 5 other content for its Facebook followers.” Id. ¶¶ 3, 30. Facebook users’ utilization of Facebook is 6 governed by Facebook’s Terms of Service that, if violated, may result in the deletion of users’ 7 Facebook accounts and pages. Id. ¶¶ 4, 58, 91. 8 On or about December 2014, FAN started “a Facebook page through which FAN has published its posts and other content for its Facebook followers.” Id. ¶ 3. After the 2016 United 10 States presidential election, “Facebook began to shut down ‘inauthentic’ Facebook accounts that 11 United States District Court Northern District of California 9 allegedly sought to inflame social and political tensions in the United States.” Id. ¶ 10. Facebook 12 allegedly shut down such accounts because the accounts’ activities were “similar to or connected 13 to that of Russian Facebook accounts during the 2016 United States presidential election which 14 were allegedly controlled by the Russia-based Internet Research Agency (‘IRA’).” Id. FAN’s 15 Facebook account and page were among those that were shut down. Id. ¶ 57. FAN’s Facebook 16 account and page were shut down on April 3, 2018. Id. 17 1. FAN’s Role in Russian Interference in the 2016 United States Presidential Election 18 As aforementioned, Facebook shut down Facebook accounts with connections to Russian 19 Facebook accounts allegedly controlled by the IRA. Id. ¶ 10. The IRA was “an agency which 20 allegedly employed fake accounts registered on major social networks . . . to promote the Russian 21 government’s interests in domestic and foreign policy.” Id. ¶ 11. Specifically, in a United States 22 Intelligence Community report regarding alleged Russian interference in the 2016 presidential 23 24 25 26 election, the IRA was described as an agency of “professional trolls whose likely financier is a close Putin ally with ties to Russian intelligence.” Id. ¶ 14 (internal quotation marks omitted). Notably, from “the time of FAN’s incorporation and until in or about the middle of 2015, FAN and the IRA were located in the same building” in Saint Petersburg, Russia. Id. ¶ 37. 27 28 2 Case No. 18-CV-07041-LHK ORDER GRANTING MOTION TO DISMISS WITH PREJUDICE Case 5:18-cv-07041-LHK Document 44 Filed 01/13/20 Page 3 of 25 1 In addition, FAN’s founder and first “General Director” is Aleksandra Yurievna Krylova. 2 Id. ¶ 34. The Special Counsel investigation into Russian interference in the 2016 presidential 3 election that was headed by Robert Mueller determined that Krylova was employed by the IRA 4 from about September 2013 to about November 2014. Id. ¶¶ 19, 34. However, FAN proclaims 5 that it does not know the veracity of the Special Counsel’s finding. Id. ¶ 34. Nevertheless, on 6 February 16, 2018, the Special Counsel indicted Krylova, who was accused of participation in the 7 IRA’s “interference operations targeting the United States.” Id. ¶ 39. 8 Moreover, on October 19, 2018, the United States District Court for the Eastern District of Virginia unsealed a criminal complaint. Id. ¶ 41. The criminal complaint divulged that the 10 Federal Bureau of Investigation (“FBI”) had uncovered “a Russian interference operation in 11 United States District Court Northern District of California 9 political and electoral systems targeting populations within the Russian Federation, and other 12 countries, including the United States” codenamed “Project Lakhta.” Id. In support of the 13 criminal complaint, the FBI asserted that Project Lakhta used “inauthentic user names to create 14 fictitious Facebook profiles” and “published false and misleading news articles intended to 15 influence the U.S. and other elections.” Id. ¶¶ 46, 48. Notably, the FBI also attested that FAN, as 16 well as the IRA, were entities within Project Lakhta. Id. ¶ 42. Furthermore, the criminal 17 complaint was filed against Elena Alekseevna Khusyaynova, who has been FAN’s chief 18 accountant since August 2, 2016. Id. ¶¶ 41, 51. However, FAN maintains that it was not involved 19 in Project Lakhta and that it had no “direct connection” to the IRA. Id. ¶¶ 45, 56. 20 21 22 23 24 25 26 2. Facebook’s Role in the United States’ Investigation of Russian Interference in the 2016 Presidential Election On September 6, 2017, Facebook’s Chief Security Officer Alex Stamos announced that “Facebook found approximately $100,000.00 in advertisement spending” between June 2015 and May 2017 “associated with more than 3,000 advertisements in connection with approximately 470 allegedly inauthentic Facebook accounts and Pages.” Id. ¶ 15. Stamos stated that “Facebook conducted a sweeping search looking for all ads that might have originated in Russia.” Id. ¶ 16 (quotation marks omitted). Facebook then “shared these findings with United States authorities” 27 28 3 Case No. 18-CV-07041-LHK ORDER GRANTING MOTION TO DISMISS WITH PREJUDICE Case 5:18-cv-07041-LHK Document 44 Filed 01/13/20 Page 4 of 25 1 and provided Congress “with information related to the 3,000 advertisements.” Id. ¶¶ 16-17. 2 On September 21, 2017, Facebook’s cofounder, chairman, and chief executive officer 3 Mark Zuckerberg released a video stating that “Facebook is actively working with the U.S. 4 government on its ongoing investigations into Russian interference” and that Facebook is 5 providing information to the Special Counsel. Id. ¶ 19. 6 7 3. The Removal of FAN’s Facebook Account and Page On April 3, 2018, Facebook shut down FAN’s Facebook account and page. Id. ¶ 57. In an 8 email, Facebook explained that FAN’s Facebook account and page were shut down because FAN 9 allegedly violated Facebook’s Terms of Service. Id. ¶ 58. FAN was among the more than 270 Russian language accounts and pages that Facebook shut down on April 3, 2018. Id. ¶ 20. On the 11 United States District Court Northern District of California 10 same day, Zuckerberg published a blog post explaining Facebook’s actions. Id. ¶ 21. Zuckerberg 12 wrote that the accounts and pages taken down on April 3, 2018 were removed because “they were 13 controlled by the IRA” and not because of “the content they shared.” Id. Specifically, Zuckerberg 14 wrote that the IRA “has repeatedly acted deceptively and tried to manipulate people in the US, 15 Europe, and Russia,” and since 2016, when the IRA “had set up a network of hundreds of fake 16 accounts to spread divisive content and interfere in the US presidential election,” Facebook has 17 improved its “techniques to prevent nation states from interfering in foreign elections.” Mark 18 Zuckerberg, https://www.facebook.com/zuck/posts/10104771321644971 (last visited January 9, 19 2020); see FAC ¶ 21 (referencing Zuckerberg’s blog post). 20 21 B. Procedural History On November 20, 2018, Plaintiffs filed their complaint against Facebook. ECF No. 1 22 (“Compl.”). Plaintiffs originally alleged five causes of action: (1) a Bivens claim for violation of 23 the First Amendment; (2) “damages under Title II of the U.S. Civil Rights Act of 1964 and 42 24 U.S.C. Section 1983”; (3) “Damages under the California Unruh Civil Rights Act”; (4) breach of 25 contract; and (5) breach of the implied covenant of good faith and fair dealing. Id. ¶¶ 59-117. 26 On April 15, 2019, Facebook filed a motion to dismiss Plaintiffs’ Complaint. ECF No. 25. 27 The Court granted Facebook’s motion to dismiss without prejudice on July 20, 2019. ECF No. 33. 28 4 Case No. 18-CV-07041-LHK ORDER GRANTING MOTION TO DISMISS WITH PREJUDICE Case 5:18-cv-07041-LHK Document 44 Filed 01/13/20 Page 5 of 25 1 The Court first dismissed Plaintiff’s second cause of action under Title II of the U.S. Civil Rights 2 Act of 1964 and 42 U.S.C. § 1983 because Plaintiffs did not allege that any party was acting under 3 color of state law. Id. at 7. 4 The Court then addressed Defendant’s argument under 47 U.S.C. § 230(c)(1) (“Section 5 230”), or the Communications Decency Act (“CDA”). Under Section 230, “[n]o provider or user 6 of an interactive computer service shall be treated as the publisher or speaker of any information 7 provided by another information content provider.” 47 U.S.C. § 230(c)(1). The Court concluded 8 that Facebook fulfilled all three prerequisites necessary to claim Section 230 immunity. ECF No. 9 33 at 8-13. First, Facebook qualified as an “interactive computer service” based on Plaintiffs’ allegations and ample case law. Id. at 8-9. Second, Plaintiffs sought to hold Facebook liable for 11 United States District Court Northern District of California 10 removing information provided by an “information content provider” that was not Facebook. Id. 12 at 9. Specifically, Plaintiffs sought to hold Facebook liable for content provided by FAN. Id. at 9- 13 10. Third, Plaintiffs sought to hold Facebook liable as a publisher or speaker of Plaintiff’s content 14 because “Plaintiffs’ claims [were] based on Facebook’s decision not to publish FAN’s content.” 15 Id. at 11. Accordingly, the Court determined that the CDA barred all of Plaintiffs’ causes of 16 action except for Plaintiffs’ Bivens claim for a violation of the First Amendment. Id. 17 As to the Bivens claim, the Court concluded that Facebook could not be held liable for 18 violating the First Amendment because Facebook was not a “public forum” and Facebook’s 19 actions did not amount to state action. Id. at 14-22. As a result, the Court dismissed all of 20 Plaintiffs’ causes of action with leave to amend. The Court notified Plaintiffs that “failure to cure 21 the deficiencies identified in this Order or in Defendant’s briefing will result in dismissal with 22 prejudice of the claims dismissed in this Order.” Id. at 22. 23 On August 19, 2019, Plaintiffs filed their First Amended Complaint (“FAC”). ECF No. 24 36. The FAC makes minor grammatical edits and adds ten paragraphs. Id. ¶¶ 23-27, 70-71, 75, 25 96-97. Five paragraphs mainly pertain to allegations involving the 2018 midterm elections and 26 Facebook’s alleged “partnership with government and law enforcement agencies,” id. ¶ 25, but 27 none of these allegations, however, relate to Facebook’s decision to remove FAN’s profile and 28 5 Case No. 18-CV-07041-LHK ORDER GRANTING MOTION TO DISMISS WITH PREJUDICE Case 5:18-cv-07041-LHK Document 44 Filed 01/13/20 Page 6 of 25 1 content following the 2016 presidential election. Id. ¶¶ 23-27. Two other paragraphs add 2 allegations about Facebook’s user agreements, id. ¶¶ 70-71; one paragraph makes a conclusory 3 allegation that Facebook’s work with the U.S. government “constitutes a conspiracy to deny FAN 4 its free speech rights,” id. ¶ 75, and the final two paragraphs simply allege that FAN did not 5 publish obscene, indecent, or sexual content and that Facebook “operated in bad faith.” Id. ¶¶ 96- 6 97. Additionally, Plaintiffs elected not to reallege their cause of action pursuant to “Title II of 7 8 the U.S. Civil Rights Act of 1964 and 42 U.S.C. Section 1983.” Compare Compl. ¶¶ 59-117, with 9 FAC ¶¶ 64-116. Instead, the FAC alleges five causes of action similar to those pled in Plaintiffs’ Complaint: (I) a Bivens claim for violation of the First Amendment; (II) a claim for “Damages 11 United States District Court Northern District of California 10 under the California Unruh Civil Rights Act”; (III) a claim for breach of contract; and (IV) and 12 (V) two claims of breach of the implied covenant of good faith and fair dealing. FAC ¶¶ 64-116. 13 Counts IV and V both plead breaches of the implied covenant of good faith and fair dealing. FAC 14 ¶¶ 101-116. It is not entirely clear how Plaintiffs’ theories of liability differ as to each count, as 15 both counts allege that FAN “lost subscribers and revenues from subscriber services” or that 16 “Facebook has made [FAN’s] performance under [its agreements with subscribers] expensive or 17 difficult or impossible.” Id. ¶¶ 106, 113. On September 16, 2019, Facebook filed a motion to dismiss Plaintiff’s FAC. ECF No. 40 18 19 (“Mot.”). On October 11, 2019, Plaintiffs filed an opposition to Facebook’s motion to dismiss. 20 ECF No. 41 (“Opp.”). On October 8, 2019, Facebook filed a reply. ECF No. 42 (“Reply.”) 21 II. LEGAL STANDARD 22 A. Motion to Dismiss Under Federal Rule of Civil Procedure 12(b)(6) 23 Rule 8(a)(2) of the Federal Rules of Civil Procedure requires a complaint to include “a 24 short and plain statement of the claim showing that the pleader is entitled to relief.” A complaint 25 that fails to meet this standard may be dismissed pursuant to Federal Rule of Civil Procedure 26 12(b)(6). The United States Supreme Court has held that Rule 8(a) requires a plaintiff to plead 27 “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. 28 6 Case No. 18-CV-07041-LHK ORDER GRANTING MOTION TO DISMISS WITH PREJUDICE Case 5:18-cv-07041-LHK Document 44 Filed 01/13/20 Page 7 of 25 Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads 2 factual content that allows the court to draw the reasonable inference that the defendant is liable 3 for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “The plausibility 4 standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a 5 defendant has acted unlawfully.” Id. (internal quotation marks omitted). For purposes of ruling 6 on a Rule 12(b)(6) motion, the Court “accept[s] factual allegations in the complaint as true and 7 construe[s] the pleadings in the light most favorable to the nonmoving party.” Manzarek v. St. 8 Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). The Court, however, need not 9 “assume the truth of legal conclusions merely because they are cast in the form of factual 10 allegations.” Fayer v. Vaughn, 649 F.3d 1061, 1064 (9th Cir. 2011) (per curiam) (internal 11 United States District Court Northern District of California 1 quotation marks omitted). Additionally, mere “conclusory allegations of law and unwarranted 12 inferences are insufficient to defeat a motion to dismiss.” Adams v. Johnson, 355 F.3d 1179, 1183 13 (9th Cir. 2004). 14 B. Leave to Amend 15 If the Court determines that a complaint should be dismissed, it must then decide whether 16 to grant leave to amend. Under Rule 15(a) of the Federal Rules of Civil Procedure, leave to 17 amend “shall be freely given when justice so requires,” bearing in mind “the underlying purpose 18 of Rule 15 to facilitate decisions on the merits, rather than on the pleadings or technicalities.” 19 Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (alterations and internal quotation 20 marks omitted). When dismissing a complaint for failure to state a claim, “a district court should 21 grant leave to amend even if no request to amend the pleading was made, unless it determines that 22 the pleading could not possibly be cured by the allegation of other facts.” Id. at 1130 (internal 23 quotation marks omitted). Accordingly, leave to amend generally shall be denied only if allowing 24 amendment would unduly prejudice the opposing party, cause undue delay, or be futile, or if the 25 moving party has acted in bad faith. Leadsinger, Inc. v. BMG Music Publ’g, 512 F.3d 522, 532 26 (9th Cir. 2008). At the same time, a court is justified in denying leave to amend when a plaintiff 27 “repeated[ly] fail[s] to cure deficiencies by amendments previously allowed.” See Carvalho v. 28 7 Case No. 18-CV-07041-LHK ORDER GRANTING MOTION TO DISMISS WITH PREJUDICE Case 5:18-cv-07041-LHK Document 44 Filed 01/13/20 Page 8 of 25 1 Equifax Info. Servs., LLC, 629 F.3d 876, 892 (9th Cir. 2010). Indeed, a “district court’s discretion 2 to deny leave to amend is particularly broad where plaintiff has previously amended the 3 complaint.” Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1058 (9th Cir. 4 2011) (quotation marks omitted). 5 III. DISCUSSION 6 The FAC states the following causes of action: (I) a Bivens claim for violations of the First 7 Amendment; (II) a claim for “Damages under the California Unruh Civil Rights Act”; (III) a claim 8 for breach of contract; and (IV) and (V) two claims for breach of the implied covenant of good 9 faith and fair dealing. FAC ¶¶ 64-116. 10 Facebook again argues that Section 230 of the CDA renders Facebook immune from all of United States District Court Northern District of California 11 Plaintiffs’ federal and state causes of action, except for Plaintiffs’ first cause of action: a Bivens 12 claim for violation of the First Amendment. Mot. at 6. Additionally, Facebook contends that 13 Plaintiffs’ Bivens claim for violations of the First Amendment fails because Facebook is not a 14 public forum and the First Amendment only applies to state actors or private entities whose 15 actions amount to state action. Id. at 11. 16 As before, the Court agrees with Facebook. At bottom, the FAC fails to cure fundamental 17 defects identified in the Court’s previous Order. The Court first addresses Facebook’s CDA 18 arguments before turning to Plaintiff’s Bivens claim. 19 A. Communications Decency Act 20 Under Section 230 of the Communications Decency Act, “[n]o provider or user of an 21 interactive computer service shall be treated as the publisher or speaker of any information 22 provided by another information content provider.” 47 U.S.C. § 230(c)(1). Put another way, 23 Section 230 “immunizes providers of interactive computer services against liability arising from 24 content created by third parties.” Fair Hous. Council of San Fernando Valley v. Roommates.com, 25 LLC, 521 F.3d 1157, 1162 (9th Cir. 2008) (en banc). In interpreting Section 230, the Ninth Circuit 26 held en banc that in “passing section 230 [of the Communications Decency Act], . . . Congress 27 sought to immunize the removal of user-generated content.” Id. at 1163 (emphasis added). Any 28 8 Case No. 18-CV-07041-LHK ORDER GRANTING MOTION TO DISMISS WITH PREJUDICE Case 5:18-cv-07041-LHK Document 44 Filed 01/13/20 Page 9 of 25 1 “activity that can be boiled down to deciding whether to exclude material that third parties seek to 2 post online is perforce immune under section 230.” Id. at 1170-71. Indeed, Section 230 3 “immunizes decisions to delete user profiles.” Riggs v. MySpace, Inc., 444 Fed. App’x 986, 987 4 (9th Cir. 2011). Furthermore, Section 230 “protect[s] websites not merely from ultimate liability, 5 but [also] from having to fight costly and protracted legal battles.” Roommates, 521 F.3d at 1175. 6 Section 230 immunity extends to causes of action under both state and federal law, though the 7 Ninth Circuit has not interpreted Section 230 to grant immunity for causes of action alleging 8 constitutional violations. Roommates, 521 F.3d at 1164, 1169 n.24. 9 Section 230 mandates dismissal when: “(1) Defendant is a provider or user of an interactive computer service; (2) the information for which Plaintiff seeks to hold Defendant liable 11 United States District Court Northern District of California 10 is information provided by another information content provider; and (3) Plaintiff’s claim seeks to 12 hold Defendant liable as the publisher or speaker of that information.” Sikhs for Justice “SFJ”, 13 Inc. v. Facebook, Inc., 144 F. Supp. 3d 1088, 1092 (hereinafter “Sikhs for Justice I”) (N.D. Cal. 14 2015), aff’d sub nom. Sikhs for Justice, Inc. v. Facebook, Inc., 697 Fed. App’x 526 (9th Cir. 2017) 15 (hereinafter “Sikhs for Justice II”). The Court addresses these three elements in turn. 16 17 1. Interactive Computer Service To satisfy the first prong of the Section 230’s immunity test, the defendant must be an 18 “interactive computer service.” An “[i]nteractive computer service” is defined as “any 19 information service, system, or access software provider that provides or enables computer access 20 by multiple users to a computer server, including specifically a service or system that provides 21 access to the Internet.” 47 U.S.C. § 230(f)(2). Facebook is unquestionably an interactive 22 computer service, as the Court previously held. ECF No. 33 at 8-9. According to the FAC, 23 Facebook is a “web-based platform or service” with “2.2 billion monthly users” who utilize the 24 internet to gain access to “Facebook account[s], posts, and all content” stored on Facebook’s 25 “platform or service.” FAC ¶¶ 1, 65-66. Thus, the FAC supports the notion that Facebook is an 26 interactive computer service. 27 28 Furthermore, this Court has previously found that Facebook is an “interactive computer 9 Case No. 18-CV-07041-LHK ORDER GRANTING MOTION TO DISMISS WITH PREJUDICE Case 5:18-cv-07041-LHK Document 44 Filed 01/13/20 Page 10 of 25 1 service” because Facebook “provides or enables computer access by multiple users to a computer 2 service.” Sikhs for Justice I, 144 F. Supp. 3d at 1093. This Court’s decision in Sikhs for Justice I 3 was affirmed by the Ninth Circuit, which also held that “Facebook is an interactive computer 4 service provider.” Sikhs for Justice II, 697 Fed. App’x at 526. Similarly, in Fraley v. Facebook, 5 Inc., 830 F. Supp. 2d 785, 801 (N.D. Cal. 2011), this Court found that “Facebook meets the 6 definition of an interactive computer service under the [Communications Decency Act].” 7 Many other courts have also found Facebook to be an interactive computer service. For 8 instance, the United States Court of Appeals for the District of Columbia held that “Facebook 9 qualifies as an interactive computer service because it is a service that provides information to multiple users by giving them computer access . . . to a computer server, namely the servers that 11 United States District Court Northern District of California 10 host its social networking website.” Klayman v. Zuckerberg, 753 F.3d 1354, 1357 (D.C. Cir. 12 2014); see also Caraccioli v. Facebook, Inc., 167 F. Supp. 3d 1056, 1065 (N.D. Cal. 2016) 13 (“[T]he court finds, as others have previously, that Facebook provides an interactive computer 14 service.” (internal quotation marks and citations omitted)). 15 16 17 18 Thus, because Facebook qualifies as an “interactive computer service,” Facebook satisfies the first prong of Section 230’s immunity test. 2. Information Provided by Another Information Content Provider To satisfy the second prong necessary to claim Section 230 immunity, Facebook must 19 demonstrate that the information for which Plaintiffs seek to hold Facebook liable—namely, 20 FAN’s account, posts, and content—is information provided by an “information content provider” 21 that is not Facebook. An “information content provider” is defined as “any person or entity that is 22 responsible, in whole or in part, for the creation or development of information provided through 23 the Internet or any other interactive computer service.” 47 U.S.C. § 230(f)(3). 24 The FAC is unequivocal that Plaintiffs seek to hold Facebook liable for removing FAN’s 25 Facebook account, posts, and content, and that this content was provided by FAN and not 26 Facebook. The FAC alleges that “FAN has operated a Facebook page through which FAN has 27 published its posts and other content,” that “FAN . . . gathers, transmits, and supplies domestic and 28 10 Case No. 18-CV-07041-LHK ORDER GRANTING MOTION TO DISMISS WITH PREJUDICE Case 5:18-cv-07041-LHK Document 44 Filed 01/13/20 Page 11 of 25 1 international news reports and other publications of public interest,” and that “[o]ne of the media 2 that FAN uses to disseminate news, primarily of local interest, throughout the Russian Federation 3 is Facebook.” FAC ¶¶ 2-3, 30. Thus, the FAC itself admits that FAN is the source of the 4 information that Facebook removed. 5 An analogous case is Lancaster v. Alphabet Inc., 2016 WL 3648608 (N.D. Cal. July 8, 2016). The Lancaster plaintiff brought suit against the defendant because the defendant removed 7 some of the plaintiff’s videos hosted by the video sharing website YouTube. Id. at *3. However, 8 because the removed videos were not created by YouTube, but rather, were the plaintiff’s 9 creations or public domain videos, the Lancaster court concluded that the information for which 10 the plaintiff sought to hold the defendant liable was information provided by another information 11 United States District Court Northern District of California 6 content provider (i.e., the Lancaster plaintiff) and not YouTube. Likewise, here, the FAC reveals 12 that FAN’s Facebook account, posts, and content were created and disseminated by FAN, not 13 Facebook. 14 Indeed, the FAC nowhere alleges that Facebook provided, created, or developed any 15 portion or content of FAN’s Facebook account, posts, and content. Plaintiffs argue in their 16 opposition, however, that Facebook is an information content provider because it “creates and 17 manipulates content continuously.” Opp. at 16. But even if the Court overlooks Plaintiffs’ failure 18 to plead such allegations in the FAC, Plaintiffs’ argument is immaterial. Section 230 immunity 19 can apply even if Facebook is responsible for other alleged “content” on its website, as Section 20 230 “still bar[s] [Plaintiffs’] claims unless [Facebook] created or developed the particular 21 information at issue.” Carafano v. Metrosplash.com, Inc., 339 F.3d 1119, 1125 (9th Cir. 2003); 22 id. at 1125 (holding that the defendant was entitled to Section 230 immunity because the 23 defendant “did not play a significant role in creating, developing or ‘transforming’ the relevant 24 information” (emphasis added)). Here, at best, Plaintiffs contend that Facebook is liable simply 25 because it created other content, but the instant case relates solely to FAN’s Facebook account, 26 posts, and content—all of which were created and disseminated by FAN, not Facebook. 27 28 Plaintiffs’ only other response is that Facebook utilizes “data mining” “to direct users to 11 Case No. 18-CV-07041-LHK ORDER GRANTING MOTION TO DISMISS WITH PREJUDICE Case 5:18-cv-07041-LHK Document 44 Filed 01/13/20 Page 12 of 25 1 content in order to generate billions in revenue” and therefore creates content such that Facebook’s 2 actions fall outside the ambit of Section 230’s protections. Opp. at 17. Again, even if the Court 3 overlooks Plaintiffs’ failure to plead these allegations in the FAC, Plaintiffs’ argument fails as a 4 matter of law. 5 First, even if Facebook utilizes “data mining” “to direct users to content,” id. at 17, the Ninth Circuit has held that “[t]hese functions—[akin to] recommendations and notifications—are 7 tools meant to facilitate the communication and content of others”; “[t]hey are not content in and 8 of themselves.” Dyroff v. Ultimate Software Grp., Inc., 934 F.3d 1093, 1098 (9th Cir. 2019). In 9 Dyroff, the defendant “used features and functions, including algorithms, to analyze user posts 10 . . . and recommended other user groups.” Id. Here, Plaintiffs make a similar argument—that 11 United States District Court Northern District of California 6 recommending FAN’s content to Facebook users through advertisements makes Facebook a 12 provider of that content. The Ninth Circuit, however, held that such actions do not create “content 13 in and of themselves.” Id.; see also Force v. Facebook, 934 F.3d 53, 66 (2d Cir. 2019) 14 (“Accepting plaintiffs’ argument would eviscerate Section 230(c)(1); a defendant interactive 15 computer service would be ineligible for Section 230(c)(1) immunity by virtue of simply 16 organizing and displaying content exclusively provided by third parties.”). 17 Second, insofar as Plaintiffs assert that Section 230 does not protect Facebook’s “data 18 mining” efforts because they “generate billions in revenue,” Opp. at 17, there is no “for-profit 19 exception to § 230’s broad grant of immunity,” M.A. ex rel. P.K. v. Vill. Voice Media Holdings, 20 LLC, 809 F. Supp. 2d 1041, 1050 (E.D. Mo. 2011). The “fact that a website elicits online content 21 for profit is immaterial; the only relevant inquiry is whether the interact service provider ‘creates’ 22 or ‘develops’ that content.” Goddard v. Google, 2008 WL 5245490, at *3 (N.D. Cal. Dec. 17, 23 2008); accord Levitt v. Yelp! Inc., 2011 WL 5079526, at *8 (N.D. Cal. Oct. 26, 2011), aff’d, 765 24 F.3d 1123 (9th Cir. 2014) (“[T]raditional editorial functions often include subjective judgments 25 informed by political and financial considerations. Determining what motives are permissible and 26 what are not could prove problematic.” (citations omitted)). Accordingly, the Court rejects 27 Plaintiffs’ argument that Facebook’s profit motive transforms Facebook’s alleged “data mining” 28 12 Case No. 18-CV-07041-LHK ORDER GRANTING MOTION TO DISMISS WITH PREJUDICE Case 5:18-cv-07041-LHK Document 44 Filed 01/13/20 Page 13 of 25 1 2 actions into the provision of FAN’s content. Therefore, the Court concludes that information for which the Plaintiffs seek to hold 3 Facebook liable was information solely provided by FAN. As a result, Facebook satisfies the 4 second element necessary to claim Section 230 immunity. 5 6 3. Treatment as Publisher The third and final prong of Section 230’s immunity test requires that Plaintiffs seek to 7 hold Facebook liable as a publisher or speaker of Plaintiffs’ content. “[P]ublication involves 8 reviewing, editing, and deciding whether to publish or to withdraw from publication third-party 9 content.” Barnes v. Yahoo!, Inc., 570 F.3d 1096, 1102 (9th Cir. 2009) (emphasis added). 10 Here, Plaintiffs’ claims are based on Facebook’s decision to remove FAN’s account, United States District Court Northern District of California 11 postings, and content. Note that here, the Court does not broach Count I, Plaintiffs’ Bivens claim 12 for violation of the First Amendment, because as discussed above, Section 230 does not immunize 13 a defendant from constitutional claims. However, the Court discusses how Plaintiffs’ remaining 14 causes of action are predicated on Facebook’s decision to remove FAN’s account, postings, and 15 content. 16 For instance, Count II of the FAC seeks damages under the California Unruh Civil Rights 17 Act because “Facebook has denied access to Facebook internet connections and the Facebook 18 ‘community’ based on Russian nationality and/or Russian ethnicity.” FAC ¶ 88. Count III of the 19 FAC alleges breach of contract because “Facebook breached the contract[, the Facebook Terms of 20 Service,] by removing FAN’s Facebook account and blocking FAN’s content without a legitimate 21 reason.” Id. ¶ 95. Counts IV and V of the FAC allege breaches of the implied covenant of good 22 faith and fair dealing because Facebook “block[ed] FAN’s access to Facebook users and FAN 23 subscribers” and thereby “interfered with FAN’s ability to provide service to existing subscribers 24 and preventing it from reaching new subscribers. Id. ¶¶ 106, 113. 25 Thus, Plaintiffs’ claims are based on Facebook’s decision not to publish FAN’s content. 26 The Ninth Circuit has held that it is “immaterial whether [the] decision comes in the form of 27 deciding what to publish in the first place or what to remove among the published material.” 28 13 Case No. 18-CV-07041-LHK ORDER GRANTING MOTION TO DISMISS WITH PREJUDICE Case 5:18-cv-07041-LHK Document 44 Filed 01/13/20 Page 14 of 25 1 Barnes, 570 F.3d at 1102 n.8. In other words, “removing content is something publishers do, and 2 to impose liability on the basis of such conduct necessarily involves treating the liable party as a 3 publisher.” Id. at 1103 (emphasis added). Indeed, the Ninth Circuit has held en banc that 4 “activity that can be boiled down to deciding whether to exclude material that third parties seek to 5 post online is perforce immune under section 230.” Roommates, 521 F.3d at 1163. Thus, because 6 Plaintiffs’ second through fifth claims are predicated on Facebook’s decision to remove content, 7 Ninth Circuit law under Barnes unambiguously establishes that Plaintiffs’ claims treat Facebook 8 as a publisher. Therefore, Facebook satisfies the third and final prong of the Communications 9 Decency Act’s immunity test: that Plaintiffs seek to hold Facebook liable as a publisher or speaker 10 of Plaintiffs’ content. United States District Court Northern District of California 11 Plaintiffs again argue that Section 230 does not immunize Facebook because the instant 12 case “does not concern obscenity or any other form of unprotected speech; it concerns political 13 speech that strikes at the heart of the First Amendment.” Opp. at 15 (emphasis omitted). It is 14 telling that Plaintiffs fail to cite any authority for this argument. Immunity under the Section 230 15 does not contain a political speech exception. The statutory text provides that no “provider or user 16 of an interactive computer service shall be treated as the publisher or speaker of any information 17 provided by another information content provider. 47 U.S.C. § 230(c)(1) (emphasis added). No 18 distinction is made between political speech and non-political speech. 19 Numerous courts have held that Section 230 immunizes a website’s removal of political 20 speech. For instance, in Sikhs for Justice I, 144 F. Supp. 3d at 1090, 1094-96, this Court held that 21 under Section 230, Facebook was immune from liability for blocking access to the plaintiff’s 22 Facebook page through which the plaintiff had “organized a number of political and human rights 23 advocacy campaigns.” The Ninth Circuit affirmed this Court’s order in Sikhs for Justice I. See 24 Sikhs for Justice II, 697 Fed. App’x at 526; see also Ebeid v. Facebook, Inc., 2019 WL 2059662, 25 at *1-*3 (N.D. Cal. May 9, 2019) (holding that Section 230 immunized Facebook for “restricting 26 what plaintiff can post on the Facebook platform” by removing the plaintiff’s posts “calling for the 27 recall of John Casson, the then-British Ambassador to Egypt”). In short, Facebook satisfies the 28 14 Case No. 18-CV-07041-LHK ORDER GRANTING MOTION TO DISMISS WITH PREJUDICE Case 5:18-cv-07041-LHK Document 44 Filed 01/13/20 Page 15 of 25 1 third prong of Section 230’s immunity test because Plaintiffs seek to hold Facebook liable as a 2 publisher or speaker of Plaintiffs’ content. 3 Accordingly, Section 230 immunizes Facebook from Plaintiff’s non-constitutional federal 4 and state causes of action: the second cause of action for damages under the California Unruh 5 Civil Rights Act; the second cause of action for breach of contract; and the fourth and fifth causes 6 of action for breach of the implied covenant of good faith and fair dealing. As none of these 7 causes of action are asserted as a constitutional claim, Section 230 prohibits Plaintiffs from 8 holding Facebook liable for all of these causes of action. Therefore, the Court need not reach the 9 merits of these causes of action. 10 Thus, because of Facebook’s immunity under Section 230, the Court hereby DISMISSES: United States District Court Northern District of California 11 the second cause of action for damages under the California Unruh Civil Rights Act; the third 12 cause of action for breach of contract; and the fourth and fifth causes of action for breach of the 13 implied covenant of good faith and fair dealing. Plaintiffs failed to cure the same deficiencies the 14 Court previously identified in its prior Order, and the FAC offers no new facts to justify a different 15 conclusion. See ECF No. 33 at 7-13. As the Court previously warned, “failure to cure the 16 deficiencies identified in this Order or in Defendant’s briefing will result in dismissal with 17 prejudice.” Id. at 22. Furthermore, courts are justified in denying leave to amend when a plaintiff 18 “repeated[ly] fail[s] to cure deficiencies by amendments previously allowed.” Carvalho, 629 F.3d 19 at 892. That is precisely the situation here. The Court GRANTS Defendants’ motion to dismiss 20 Plaintiffs’ second, third, fourth, and fifth causes of action with prejudice. 21 B. Bivens Claim for Violation of the First Amendment 22 Plaintiffs’ sole remaining cause of action is their Bivens claim for violation of the First 23 Amendment. However, it is axiomatic that the “constitutional guarantee of free speech is a 24 guarantee only against abridgement by government, federal or state.” Hudgens v. NLRB, 424 U.S. 25 507, 513 (1976). Thus, it is “undisputed that the First Amendment of the United States 26 Constitution only applies to government actors; it does not apply to private corporations or 27 persons.” Redden v. The Women’s Ctr. of San Joaquin Cty., 2006 WL 132088, at *1 (N.D. Cal. 28 15 Case No. 18-CV-07041-LHK ORDER GRANTING MOTION TO DISMISS WITH PREJUDICE Case 5:18-cv-07041-LHK Document 44 Filed 01/13/20 Page 16 of 25 1 Jan. 17, 2008) (citing Manson v. Little Rock Newspapers, Inc., 200 F.3d 1172, 1173 (8th Cir. 2 2000)). Indeed, courts have previously rejected attempts to apply the First Amendment to 4 Facebook, a “corporation organized and existing under the laws of the State of Delaware,” FAC 5 ¶ 7. For instance, the Freedom Watch, Inc. v. Google, Inc. court dismissed the plaintiffs’ First 6 Amendment claim because “Facebook and Twitter . . . are private businesses that do not become 7 ‘state actors’ based solely on the provision of their social media networks to the public.” 368 F. 8 Supp. 3d 30, 40 (D.D.C. 2019); see also, e.g., Young v. Facebook, Inc., 2010 WL 4269304, at *3 9 (N.D. Cal. Oct. 25, 2010) (dismissing the plaintiff’s claim against Facebook for violation of the 10 First Amendment because Facebook is not a state actor); Shulman v. Facebook.com, 2017 WL 11 United States District Court Northern District of California 3 5129885, at *4 (D.N.J. Nov. 6, 2017) (rejecting the plaintiff’s First Amendment claim against 12 Facebook because Facebook is not a state actor, and noting that “efforts to apply the First 13 Amendment to Facebook . . . have consistently failed”). Here, Plaintiffs make no allegations that 14 the federal government or a state government had any involvement in Facebook’s removal of 15 FAN’s profile, page, and content. Thus, Facebook’s deletion of FAN’s profile, page, and content 16 is private conduct that does not constitute governmental action. Therefore, Plaintiffs fail to state a 17 Bivens claim against Facebook for violation of the First Amendment. 18 Nonetheless, Plaintiffs maintain that Facebook’s deletion of FAN’s profile, page, and 19 content is actionable under the First Amendment. Specifically, Plaintiffs assert that first, 20 Facebook constitutes a “public forum,” and second, that Facebook’s actions amount to state 21 action. Opp. at 9, 12. It should be noted that Plaintiffs raised these exact arguments in their 22 opposition to the prior motion to dismiss. The Court rejected them then, and does so again. 23 Nothing in Plaintiff’s briefing alters the Court’s conclusion. ECF No. 33 at 13-22. The Court 24 addresses Plaintiffs’ two arguments in turn. 25 26 27 28 1. Facebook is Not a Public Forum Plaintiffs argue that Facebook is a public forum because Facebook “operates a freely available public forum, open to any and all people who are at least 13 years old, with internet 16 Case No. 18-CV-07041-LHK ORDER GRANTING MOTION TO DISMISS WITH PREJUDICE Case 5:18-cv-07041-LHK Document 44 Filed 01/13/20 Page 17 of 25 1 access and a valid e-mail address.” Id. at 9. As the Court previously held, case law has rejected 2 the notion that private companies such as Facebook are public fora. ECF No. 33 at 15-16. 3 Nonetheless, Plaintiffs persist in arguing otherwise. Furthermore, Facebook asserts, and the Court 4 previously determined, that in order for a private entity to operate as a public forum, the entity 5 must have engaged in a function that is both traditionally and exclusively governmental. Mot. at 6 11; ECF No. 33 at 16-18. At the risk of being redundant, the Court again addresses these 7 arguments. 8 9 a. Case Law Establishes that Private Internet Companies are not Public Fora Courts have rejected the notion that private corporations providing services via the internet are public fora for purposes of the First Amendment. For instance, in Prager Univ. v. Google 11 United States District Court Northern District of California 10 LLC, this Court rejected the notion that “private social media corporations . . . are state actors that 12 must regulate the content of their websites according to the strictures of the First Amendment” 13 under public forum analysis. 2018 WL 1471939, at *8 (N.D. Cal. Mar. 26, 2018) (emphasis in 14 original). In addition, the Ebeid court rejected the argument that Facebook is a public forum. 2019 15 WL 2059662, at *6. Moreover, in Buza v. Yahoo!, Inc., the court held that the plaintiff’s assertion 16 that “Yahoo!’s services should be seen as a ‘public forum’ in which the guarantees of the First 17 Amendment apply is not tenable under federal law. As a private actor, Yahoo! has every right to 18 control the content of material on its servers, and appearing on websites that it hosts.” 2011 WL 19 5041174, at *1 (N.D. Cal. Oct. 24, 2011). Furthermore, in Langdon v. Google, Inc., the court held 20 that “Plaintiff’s analogy of [Google and other] Defendants’ private networks to shopping centers 21 and [plaintiff’s] position that since they are open to the public they become public forums is not 22 supported by case law.” 474 F. Supp. 2d 622, 632 (D. Del. 2007). 23 At bottom, the United States Supreme Court has held that property does not “lose its 24 private character merely because the public is generally invited to use it for designated purposes.” 25 Lloyd Corp. v. Tanner, 407 U.S. 551, 569 (1972). Thus, simply because Facebook has many users 26 that create or share content, it does not mean that Facebook, a private social media company by 27 Plaintiffs’ own admission in the complaint, becomes a public forum. 28 17 Case No. 18-CV-07041-LHK ORDER GRANTING MOTION TO DISMISS WITH PREJUDICE Case 5:18-cv-07041-LHK Document 44 Filed 01/13/20 Page 18 of 25 1 Plaintiffs rely on Packingham v. North Carolina, 137 S. Ct. 1730 (2017), for the 2 proposition that social media sites, like Facebook, are analogous to “traditional” public fora and 3 should be treated as such. Opp. at 9-10. But as this Court previously held, “Packingham did not, 4 and had no occasion to, address whether private social media corporations like YouTube [and 5 Facebook] are state actors that must regulate the content of their websites according to the 6 strictures of the First Amendment.” Prager, 2018 WL 1471939, at *8. As a result, Packingham 7 does not undermine the Court’s conclusion that Facebook does not constitute a public forum. 8 9 b. For a Private Entity to Operate as a Public Forum, the Entity Must Engage in a Function that is Both Traditionally and Exclusively Governmental The Court now turns to Plaintiffs’ argument that Facebook operates as a public forum by 10 engaging in functions that are traditionally and exclusively governmental. Whether a private United States District Court Northern District of California 11 12 13 14 entity operates as a public forum is only relevant to the “public function test,” one of four tests the United States Supreme Court has articulated “for determining whether a private [party’s] actions amount to state action.” Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1140 (9th Cir. 2012); see also Lee v. Katz, 276 F.3d 550, 554 (9th Cir. 2002) (holding that because an entity “performs an 15 exclusively and traditionally public function within a public forum, we focus only upon the public 16 function test”). Here, the Court holds, as it did before, that Facebook did not engage in functions 17 that are traditionally and exclusively functions of the state. Examples of functions that are 18 19 traditionally the exclusive prerogative of the state include “hol[ding public] elections”, “govern[ing] a town,” or “serv[ing] as an international peacekeeping force.” Brunette v. Humane 20 Society of Ventura Cty., 294 F.3d 1205, 1214 (9th Cir. 2002); see also Manhattan Cmty. Access 21 Corp. v. Halleck, 139 S. Ct. 1921, 1929 (2019) (“The Court has stressed that ‘very few’ functions 22 fall into that category. Under the Court’s cases, those functions include, for example, running 23 elections and operating a company town. The Court has ruled that a variety of functions do not 24 fall into that category, including, for example: running sports associations and leagues, 25 administering insurance payments, operating nursing homes, providing special education, 26 representing indigent criminal defendants, resolving private disputes, and supplying electricity.” 27 28 18 Case No. 18-CV-07041-LHK ORDER GRANTING MOTION TO DISMISS WITH PREJUDICE Case 5:18-cv-07041-LHK Document 44 Filed 01/13/20 Page 19 of 25 1 (citations omitted)). There are no allegations that Facebook holds public elections, governs a 2 town, or serves as an international peacekeeping force. 3 This Court has previously held that “private entities who creat[e] their own . . . social 4 media website and make decisions about whether and how to regulate content that has been 5 uploaded on that website” have not engaged in “public functions that were traditionally 6 exclusively reserved to the State.” Prager, 2018 WL 1471939, at *8 (internal quotation marks 7 omitted). Similarly, the Ebeid court held that “Facebook’s regulation of speech on its platform” is 8 not a function exclusively reserved for the state, thus Facebook was not a public forum. 2019 WL 9 2059662, at *6. Moreover, the Harris v. Kern Cty. Sheriffs court held that Facebook does not satisfy the public function test because Facebook “had [not], “in essence, become the 11 United States District Court Northern District of California 10 government.” 2019 WL 1777976, at *6 (E.D. Cal. Apr. 23, 2019). Furthermore, the Cyber 12 Promotions, Inc. v. Am. Online, Inc. court held that AOL, “one of many private online companies 13 which allow its members access to the Internet . . . where they can exchange information with the 14 general public,” did not satisfy the public function test. 948 F. Supp. 436, 442 (E.D. Pa. 1996). 15 And most importantly, just last term, the United States Supreme Court held that “merely hosting 16 speech by others is not a traditional, exclusive public function and does not alone transform 17 private entities into state actors subject to First Amendment constraints.” Manhattan Cmty. Access 18 Corp., 139 S. Ct. at 1930. 19 Numerous other courts have also declined to treat similar private social media 20 corporations, as well as online service providers, as state actors. See, e.g., Howard v. Am. Online, 21 Inc., 208 F.3d 741, 754 (3d Cir. 2000) (rejecting argument that AOL should be deemed a state 22 actor because it is a “quasi-public utility” that “involves a public trust”); Kinderstart.com LLC v. 23 Google, Inc., 2007 WL 831806, at *14 (N.D. Cal. Mar. 16, 2007) (“[T]he emanation of third-party 24 speech from a search engine [does not] somehow transform[] that privately-owned entity into a 25 public forum.”); Nyabwa v. Facebook, 2018 WL 585467, at *1 (S.D. Tex. Jan. 26, 2018) 26 (“Because the First Amendment governs only governmental restrictions on speech, Nyabwa has 27 not stated a cause of action against Facebook.”); Shulman v. Facebook.com, 2017 WL 5129885, at 28 19 Case No. 18-CV-07041-LHK ORDER GRANTING MOTION TO DISMISS WITH PREJUDICE Case 5:18-cv-07041-LHK Document 44 Filed 01/13/20 Page 20 of 25 1 *4 (D.N.J. Nov. 6, 2017) (rejecting the plaintiff’s claims against Facebook for failure to 2 sufficiently allege that Facebook is a state actor); Langdon v. Google, Inc., 474 F. Supp. 2d 622, 3 631-32 (D. Del. 2007) (finding that Google is a private entity that is “not subject to constitutional 4 free speech guarantees” and asserting that the United States Supreme Court “has routinely rejected 5 the assumption that people who want to express their views in a private facility, such as a 6 shopping center, have a constitutional right to do so”). 7 Thus, by operating its social media website, Facebook has not engaged in any functions 8 exclusively reserved for the government. Therefore, Facebook does not operate as a public forum, 9 so Facebook’s actions do not amount to state action under the public function test. 2. Facebook’s Actions Do Not Amount to Joint Action 11 United States District Court Northern District of California 10 Plaintiffs assert that Facebook’s actions also satisfy the joint action test, which is another 12 one of the four tests the United States Supreme Court has articulated in discerning whether a 13 private party’s actions amount to state action subject to the Constitution. Opp. at 11-14. Plaintiffs 14 argue that the FAC adds new allegations that demonstrate “the symbiotic relationship between 15 Facebook and the government in blocking Facebook users from its web-based platform.” Id. at 11 16 (citation omitted). Facebook responds by asserting that these new factual allegations still fail to 17 demonstrate joint action. Mot. at 12-18. The Court agrees with Facebook. 18 The joint action test asks “whether state officials and private parties have acted in concert 19 in effecting a particular deprivation of constitutional rights.” Tsao, 698 F.3d at 1140 (internal 20 quotation marks omitted). “This requirement can be satisfied either by proving the existence of a 21 conspiracy or by showing that the private party was a willful participant in joint action with the 22 State or its agents.” Id. (internal quotation marks omitted). “Ultimately, joint action exists when 23 the state has so far insinuated itself into a position of interdependence with [the private entity] that 24 it must be recognized as a joint participant in the challenged activity.” Id. Notably, merely 25 “supplying information [to the state] alone does not amount to conspiracy or joint action.” Deeths 26 v. Lucile Slater Packard Children’s Hosp. at Stanford, 2013 WL 6185175, at *10-*11 (E.D. Cal. 27 Nov. 26, 2013); see also Lockhead v. Weinstein, 24 Fed. App’x 805, 806 (9th Cir. 2001) (“[T]he 28 20 Case No. 18-CV-07041-LHK ORDER GRANTING MOTION TO DISMISS WITH PREJUDICE Case 5:18-cv-07041-LHK Document 44 Filed 01/13/20 Page 21 of 25 1 mere furnishing of information to police officers does not constitute joint action . . . .”); Butler v. 2 Goldblatt Bros., Inc., 589 F.2d 323, 327 (7th Cir. 1978), cert. denied, 444 U.S. 841 (“[W]e decline 3 to hold that the mere act of furnishing information to law enforcement officers constitutes joint 4 (activity) with state officials . . . .” (internal quotation marks omitted)); Schaffer v. Salt Lake City 5 Corp., 814 F.3d 1151, 1157 (10th Cir. 2016) (“[W]e have consistently held that furnishing 6 information to law enforcement officers, without more, does not constitute joint action.”); 7 Ginsberg v. Healey Car & Truck Leasing, Inc., 189 F.3d 268, 272 (2d Cir. 1999) (same); 8 Moldowan v. City of Warren, 578 F.3d 351, 399 (6th Cir. 2009) (same). The Court applies the joint action test below. The Court first discusses whether Facebook 10 was a willful participant in joint action with the government, and then turns to whether Facebook 11 United States District Court Northern District of California 9 and the government conspired together. 12 13 a. Facebook Was Not a Willful Participant in Joint Action with the Government As discussed above, the joint action test can be satisfied if the private party was a “willful 14 participant in joint action with the State.” Tsao, 698 F.3d at 1140. The Court previously held that 15 Plaintiffs’ allegations “revealed that Facebook allegedly supplied the government with information 16 that might relate to the government’s investigation into Russian interference with the 2016 17 presidential election.” ECF No. 33 at 19. The Court found these allegations insufficient because 18 “supplying information to the state alone does not amount to conspiracy or joint action.” Id. 19 (quoting Deeths, 2013 WL 6185175, at *10-11). The Court explained that “[t]he Deeths court 20 found that there was no joint action even though a state actor relied upon a private actor’s 21 information and recommendation to remove the plaintiff’s child from the plaintiff’s 22 care. . . . Plaintiffs only allege that Facebook provided the government with information. Thus, 23 under Deeths, Facebook was not a willful participant in joint action with the government.” Id. at 24 20 (citations omitted). 25 Here, Plaintiffs’ new allegations in the FAC fare no better. Plaintiffs’ new additions to the 26 FAC allege that “[o]n May 10, 2018, Facebook reported it gave 3,000 Facebook advertisements 27 the IRA ran on Facebook and Instagram between 2015 and 2017 to Congress” to help better 28 21 Case No. 18-CV-07041-LHK ORDER GRANTING MOTION TO DISMISS WITH PREJUDICE Case 5:18-cv-07041-LHK Document 44 Filed 01/13/20 Page 22 of 25 1 understand the extent of Russian interference in the 2016 presidential election. FAC ¶ 23. Other 2 new allegations state that Facebook’s Head of Cybersecurity Policy, Nathaniel Gleicher, made the 3 following statements in various press releases in late 2018 and early 2019: 4 • “[F]inding and investigating potential threats isn’t something Facebook does alone. 5 They also rely on external partners, like the government.” Id. ¶ 24 (internal 6 alterations omitted). 7 • Facebook has a “partnership” with the government and law enforcement agencies, which was “especially critical in the lead-up to the midterm elections” in 2018 9 because of the government’s “broader intelligence work.” He shared that “law 10 enforcement agencies can draw connections off our platform to a degree that we 11 United States District Court Northern District of California 8 simply can’t” and “[t]ips from government and law enforcement partners can 12 therefore help our security teams attribute suspicious behavior to certain groups, 13 make connections between actors, or proactively monitor for activity targeting 14 people on Facebook.” This information, as well as the government’s “tools to deter 15 or punish abuse,” are the reasons why Facebook is “actively engaged with the 16 Department of Homeland Security, the FBI, including their Foreign Influence Task 17 Force, Secretaries of State across the US . . . on our efforts to detect and stop 18 information operations, including those that target elections.” Id. ¶ 25 (internal 19 alterations and emphasis omitted). 20 • “[B]ased on an initial tip from US law enforcement, Facebook removed 107 21 Facebook Pages, Groups, and accounts, as well as 41 Instagram accounts [in 22 January 2019], for engaging in coordinated inauthentic behavior as part of a 23 network that originated in Russia and operated in Ukraine.” Id. ¶ 26 (emphasis 24 omitted). 25 • Facebook is “working more closely” with the U.S. government and law 26 enforcement with regard to “inauthentic behavior on Facebook.” Id. ¶ 27. 27 These new allegations do little to demonstrate joint action in the instant case, as most of 28 22 Case No. 18-CV-07041-LHK ORDER GRANTING MOTION TO DISMISS WITH PREJUDICE Case 5:18-cv-07041-LHK Document 44 Filed 01/13/20 Page 23 of 25 1 these new allegations post-date the relevant conduct that allegedly injured Plaintiffs. The instant 2 case revolves around Plaintiff’s allegations surrounding the 2016 presidential election and 3 allegations that Facebook removed FAN’s accounts and content in April 2018. The FAC’s new 4 allegations, however, concern activity in late 2018 and early 2019 relating to investigations into 5 the 2018 midterm elections. Indeed, these new allegations do not mention FAN at all. To 6 properly plead joint action, a “plaintiff must allege that the state was involved with the activity 7 that caused the injury giving rise to the action.” Sybalski v. Indep. Grp. Home Living Program, 8 Inc., 546 F.3d 255, 257-58 (2d Cir. 2008) (internal quotation marks omitted); accord Roberts v. 9 AT&T Mobility LLC, 877 F.3d 833, 842 (9th Cir. 2017) (holding that courts must “pay[] careful attention to the gravamen of the plaintiff’s complaint” and “identify the specific conduct of which 11 United States District Court Northern District of California 10 the plaintiff complains.” (quotation marks omitted)). Most of Plaintiffs’ new allegations are 12 unconnected with Facebook’s April 3, 2018 decision to delete FAN’s Facebook page and block 13 FAN content and restrict access to FAN’s account, and as a result, these new allegations do not 14 establish joint action between Facebook and the government. 15 In regards to paragraph 23, the only new allegation that mentions Facebook’s actions 16 relating to FAN, Plaintiffs plead that “[o]n May 10, 2018, Facebook reported it gave 3,000 17 Facebook advertisements the IRA ran on Facebook and Instagram between 2015 and 2017 to 18 Congress.” FAC ¶ 23. But as the Court previously held, case law is unequivocal that supplying 19 information to the government alone does not amount to joint action. See, e.g., Deeths, 2013 WL 20 6185175, at *10-*11; see also Lockhead, 24 Fed. App’x at 806 (“[T]he mere furnishing of 21 information to police officers does not constitute joint action . . . .”); Butler, 589 F.2d at 327 22 (“[W]e decline to hold that the mere act of furnishing information to law enforcement officers 23 constitutes joint (activity) with state officials . . . .” (internal quotation marks omitted)); Schaffer, 24 814 F.3d at 1157 (“[W]e have consistently held that furnishing information to law enforcement 25 officers, without more, does not constitute joint action.”); Ginsberg, 189 F.3d at 272 (same); 26 Moldowan, 578 F.3d at 399 (same). That is all Plaintiffs allege in paragraph 23, and accordingly, 27 this new allegation does not cure any of the fatal defects identified by the Court in its previous 28 23 Case No. 18-CV-07041-LHK ORDER GRANTING MOTION TO DISMISS WITH PREJUDICE Case 5:18-cv-07041-LHK Document 44 Filed 01/13/20 Page 24 of 25 1 2 order. Accordingly, the Court finds that there was no joint action because Facebook was not a 3 willful participant in joint action with the government relating to Facebook’s April 3, 2018 4 decision to delete FAN’s Facebook page and restrict FAN’s access to its Facebook account. 5 6 b. Facebook Did Not Conspire with the Government As discussed above, the joint action test can also be satisfied by proving a conspiracy 7 between the government and the private party. Tsao, 698 F.3d at 1140. To prove a conspiracy 8 “between private parties and the government,” there must be “an agreement or ‘meeting of the 9 minds’ to violate constitutional rights.” Fonda v. Gray, 707 F.2d 435, 438 (9th Cir. 1983). The Court previously dismissed this claim, and in the FAC, Plaintiffs add a single conclusory 11 United States District Court Northern District of California 10 allegation that Facebook’s work with the U.S. government concerning Russian interference in 12 U.S. elections is a “conspiracy to deny FAN its free speech rights guaranteed under the U.S. 13 Constitution.” FAC ¶¶ 74-75. Such a “bare allegation of . . . joint action will not overcome a 14 motion to dismiss.” Dietrich v. John Ascuaga’s Nugget, 548 F.3d 892, 900 (9th Cir. 2008). In 15 short, and as the Court previously determined, none of Plaintiffs’ allegations support the theory 16 that there was either an agreement or a meeting of the minds between Facebook and the 17 government to violate Plaintiffs’ rights. Thus, there was no joint action because Plaintiffs fail to 18 allege specific facts establishing the existence of an agreement or a meeting of the minds between 19 Facebook and the government relating to Facebook’s deletion of FAN’s Facebook page or 20 restriction of FAN’s access to its Facebook account. 21 In sum, Plaintiffs’ Bivens claim for violation of the First Amendment fails because the 22 First Amendment applies only to federal and state governmental actors with very few exceptions. 23 Plaintiffs assert that under one such exception—the joint action test—the First Amendment 24 applies to private actor Facebook’s decision to delete FAN’s Facebook page and to prevent access 25 to FAN’s Facebook account. However, as discussed above, the joint action test has not been 26 satisfied here because Facebook was not a willful participant in joint action with the government, 27 and Facebook did not conspire with the government to violate any constitutional rights. 28 24 Case No. 18-CV-07041-LHK ORDER GRANTING MOTION TO DISMISS WITH PREJUDICE Case 5:18-cv-07041-LHK Document 44 Filed 01/13/20 Page 25 of 25 Thus, the Court hereby DISMISSES Plaintiffs’ first cause of action: a Bivens claim for 1 2 violation of the First Amendment. Plaintiffs failed to cure the same deficiencies the Court 3 previously identified in its prior Order, and the FAC offers no new facts to justify a different 4 conclusion. See ECF No. 33 at 14-22. As the Court previously warned, “failure to cure the 5 deficiencies identified in this Order or in Defendant’s briefing will result in dismissal with 6 prejudice.” Id. at 22. Furthermore, courts are justified in denying leave to amend when a plaintiff 7 “repeated[ly] fail[s] to cure deficiencies by amendments previously allowed.” Carvalho, 629 F.3d 8 at 892. That is precisely the situation here. The Court GRANTS Defendants’ motion to dismiss 9 Plaintiffs’ first cause of action with prejudice. 10 United States District Court Northern District of California 11 IV. CONCLUSION For the foregoing reasons, the Court GRANTS Facebook’s motion to dismiss with 12 prejudice. 13 IT IS SO ORDERED. 14 15 16 17 Dated: January 13, 2020 ______________________________________ LUCY H. KOH United States District Judge 18 19 20 21 22 23 24 25 26 27 28 25 Case No. 18-CV-07041-LHK ORDER GRANTING MOTION TO DISMISS WITH PREJUDICE

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