Informed Consent Action Network v. Youtube LLC
| Decision Date | 31 January 2022 |
| Docket Number | Case No. 20-cv-09456-JST |
| Citation | 582 F.Supp.3d 712 |
| Parties | The INFORMED CONSENT ACTION NETWORK, et al., Plaintiffs, v. YOUTUBE LLC, et al., Defendants. |
| Court | U.S. District Court — Northern District of California |
Aaron Siri, Elizabeth A. Brehm, Siri and Glimstad LLP, New York, NY, Sam M. Muriella, Irvine, CA, for Plaintiffs.
Lauren Gallo White, Wilson Sonsini Goodrich and Rosati, PC, San Francisco, CA, Benjamin D. Margo, Pro Hac Vice, Brian M. Willen, Pro Hac Vice, Wilson Sonsini Goodrich and Rosati, PC, New York, NY, for Defendant YouTube LLC.
Amy C. Lishinski, Pro Hac Vice, Ari Holtzblatt, Pro Hac Vice, Molly Maureen Jennings, Pro Hac Vice, Spencer L. Todd, Pro Hac Vice, Wilmer Cutler Pickering Hale and Dorr LLP, Washington, DC, Sonal N. Mehta, Wilmer Cutler Pickering Hale and Dorr LLP, Palo Alto, CA, for Defendant Facebook Inc.
JON S. TIGAR, United States District Judge Plaintiffs, the Informed Consent Action Network and founder Del Bigtree (collectively "ICAN"), contend that Defendants, YouTube LLC and Facebook Inc., violated the First Amendment by removing ICAN's videos from and suspending its accounts on their social media platforms. Before the Court is Defendants' motion to dismiss. ECF No. 42. For the reasons that follow, the Court will grant the motion.
Founded in 2016, ICAN is a Texas-based "non-profit entity ... dedicated to criticizing governmental positions on health-related issues." First Amended Complaint ("FAC"), ECF No. 42 ¶¶ 2, 15. ICAN's mission is to "raise awareness about public health safety" by "investigat[ing] and disseminat[ing] information regarding public health safety issues, including through its website ..., postings on social media, press events and releases." Id. ¶ 15. As part of its activities, ICAN produces "The HighWire with Del Bigtree," an "internet-based talk show." Id. ¶¶ 15, 18. ICAN shared videos of The HighWire program using its accounts on Facebook and YouTube. Id. ¶ 18.
Defendants YouTube and Facebook are both California-based companies incorporated in Delaware. Id. ¶¶ 20-21. Both companies operate social media platforms that allow users to upload and share video content, subject to Defendants' respective terms of use. See id. ¶¶ 27, 31.
In the wake of the COVID-19 pandemic, Defendants adopted policies to combat perceived misinformation about the coronavirus. Id. ¶ 10. YouTube's policy prohibited sharing "content about COVID-19 that ... poses a serious risk of egregious harm." Id. Accordingly, YouTube would not permit content that "spreads medical misinformation that contradicts local health authorities' or the World Health Organization's ... medical information about COVID-19." Id. Similarly, Facebook's policy noted that the platform would "remove content that ‘leading global health organizations and local health authorities' flagged as contrary to their official statements about COVID-19." Id.
Based on these policies, on July 3, 2020, YouTube removed a video of a doctor discussing the drug hydroxychloroquine that ICAN had posted on its channel, The HighWire. Id. ¶ 69. Over the following weeks, YouTube removed seven additional videos from ICAN's channel before terminating its account on July 29, 2020. Id. Facebook acted similarly, first removing a video uploaded by ICAN on July 7, 2020, then removing several additional videos, and finally "unpublishing" the HighWire Facebook page on November 21, 2020. Id. ¶¶ 73-74. Prior to the COVID-19 pandemic, Defendants had "almost never" objected to or removed ICAN's postings. Id. ¶ 3; see also id. ¶¶ 68, 75, 78, 88.
ICAN contends that the genesis of its account suspensions dates back to the 2016 election, when it became apparent that Defendants' platforms were "extensively used and relied upon [as] political news and information tools," including by a Russian intelligence agency aimed at disrupting the United States presidential campaign. Id. ¶ 32. As a result, Defendants began to face "immense scrutiny from Congress, law enforcement authorities, and the public" about "the role played by Defendants' platforms in the Russian interference." Id. ¶ 33. Members of Congress considered legislation that would "make Defendants' businesses more accountable," including the potential elimination of Section 230 immunity.1 Id. ¶ 34. House Intelligence Committee Chairman Adam Schiff and then-presidential candidate Joe Biden publicly criticized Section 230, thereby "hold[ing] the proverbial Sword of Damocles over the social media companies' heads." Id. ¶¶ 35-36, 38. "[I]f the companies did not comply with the demands made by the government officials with regard to foreign interference, they would lose the current legal regime that they deem essential to their continued growth." Id. ¶ 38.
Ultimately, Schiff's focus and that of other elected officials shifted "from safeguarding our elections from foreign interference, to limiting information regarding vaccines." Id. ¶ 13. On February 14, 2019, Schiff wrote a letter to the Chief Executive Officer of Google, YouTube's parent company, to gather information about what the company was doing to "curb vaccine ‘misinformation.’ " Id. ¶ 42. He sent a similar letter to Facebook, expressing concern that "Facebook accepts paid advertising that contains deliberate misinformation about vaccines," and urging the company "to take more active steps to curb vaccine ‘misinformation.’ " Id. ¶ 43. According to ICAN, "Schiff's letters did not reference Section 230 directly, but after the pressure applied following the Russia scandal, he did not need to." Id. ¶ 44. Schiff received responses from Google and Facebook stating that they were "put[ting] a lot of effort into curbing misinformation" and working to "reduce the spread of inaccurate information." Id. After these letters, Defendants began "exploring the removal of ‘anti-vaccine’ information." Id. Facebook issued a press release detailing its commitment to curbing misinformation by "reducing its distribution," rejecting "ads that include misinformation," and removing ad targeting options like "vaccine controversies." Id. ¶ 46.
As the COVID-19 pandemic began to spread, Schiff "once again applied governmental pressure and wrote to [Defendants], this time expanding his censorship of ‘vaccine misinformation’ to also include ‘coronavirus misinformation.’ " Id. ¶ 47. He told Defendants "that the best practice is to ‘remove or [downgrade] all harmful content before users engage with it’ and urged them to adopt policies similar to that of Facebook to tackle coronavirus misinformation." Id. He also "engaged ‘directly with the companies’ on the issue of vaccine misinformation." Id. ¶ 50 (). Once again, Schiff received a response, this time from YouTube stating in part "[w]e are committed to working with [m]embers of Congress as well as health experts around the world to better understand these challenges as we continue developing robust policy and product improvements that help keep people safe." Id. ¶ 49.
Beyond Schiff's public comments about vaccine and coronavirus misinformation, ICAN alleges that "[o]ther federal officers have made public statements demonstrating the continuous coercion exerted by Congress on Defendants" across several topics. Id. ¶ 52. For example, House Judiciary Committee Chairman Jerrold Nadler expressed an interest in "pressuring" technology companies. Id. ¶ 53. Congressman Cedric Richmond called on social media platforms to self-regulate or face increased governmental regulation, and Congresswoman Maxine Waters posed questions to Facebook Chief Executive Officer Mark Zuckerberg during a Congressional hearing about steps the company was taking to combat election-related misinformation. Id. ¶¶ 54, 58. Members of Congress also wrote to social media companies with recommendations on how to limit the spread of census misinformation, which was followed by Defendants updating their policies related to census misinformation. Id. ¶¶ 56-57. ICAN alleges that it was in response to these "pressure tactics," and particularly the threats to Section 230, that Defendants implemented misinformation policies and restricted or terminated ICAN's ability to share information on Defendants' platforms. Id. ¶¶ 6-7, 9-11, 56.
ICAN filed its initial complaint on December 30, 2020, ECF No. 1, and the amended complaint ("FAC") on March 29, 2021, ECF No. 42. The FAC contains a single cause of action alleging that Defendants violated ICAN's First Amendment rights by restricting its ability to post information on Defendants' platforms.2 Id. ¶¶ 85-94. ICAN seeks injunctive relief ordering Defendants to restore ICAN's accounts and barring the social media platforms from restricting ICAN's speech in the manner described in the FAC. See Prayer for Relief, FAC at 32.
Defendants filed this motion to dismiss the FAC on April 12, 2021. ECF No. 47. ICAN has filed an opposition, ECF No. 52, to which Defendants replied, ECF No. 53.
This Court has jurisdiction pursuant to 28 U.S.C. § 1331.
A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). "Dismissal under Rule 12(b)(6) is appropriate only where the complaint lacks a cognizable legal theory or sufficient facts to support a cognizable legal theory." Mendiondo v. Centinela Hosp. Med. Ctr. , 521 F.3d 1097, 1104 (9th Cir. 2008) (citation omitted). A complaint need not contain detailed factual allegations, but facts pleaded by a plaintiff "must be enough to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that...
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