From Doe v. Google LLC, decided yesterday by the Ninth Circuit (Judges Margaet McKeown, Consuelo Callahan, and Lawrence Vandyke):
Appellants are fourteen self-described "conservative" content creators who spent years growing their YouTube channels and amassing more than 771 million views. These channels discussed topics such as "Hunter Biden and the Ukraine Scandal," "the ongoing corruption probe," "social media censorship," "race relations or protests in America," and "anonymous posts on political issues by someone identifying themselves as 'Q.'" Appellants' videos were hosted on YouTube, a video sharing platform whose Terms of Service give it discretion to terminate accounts under certain circumstances, including if YouTube believed that there was "conduct that create[d] (or could create) liability or harm to any user, other third party, YouTube or [its] Affiliates."
Appellants allege that on October 15, 2020, YouTube terminated or suspended Appellants' channels, claiming that it was "taking another step in [its] efforts to curb hate and harassment by removing more conspiracy theory content used to justify real-world violence." … In their claim for a First Amendment violation, which is the premise for federal court jurisdiction, Appellants asserted that YouTube and Google—the parent company of YouTube—either conspired with the federal government, or were compelled by the federal government, to take down their video content. This, they argue, constitutes an activity akin to state action and supports the assertion of a constitutional claim against a private company for its conduct.
In support of their assertion, Appellants cite seven events involving federal officials regarding YouTube, Google, or general social media platform moderation policies that took place between 2019 and 2020: (1) statements by House Speaker Nancy Pelosi on possibly removing the protection provided to social media platforms under Section 230 of the Communications Decency Act; (2) a letter by Representative Adam Schiff to Google's CEO and YouTube's CEO encouraging the curbing of COVID-related misinformation on social media platforms; (3) a statement by Speaker Pelosi at a Georgetown University forum on COVID calling for greater accountability for "the division and the disinformation proliferating online"; (4) the Senate Commerce Committee's vote to compel the testimony of Google's CEO regarding content moderation; (5) the House of Representatives' passage of House Resolution 1154, a non-binding resolution condemning the "QAnon" conspiracy theory, encouraging Americans to "seek information from authoritative sources," and acknowledging social media platforms efforts to remove "QAnon groups and their content from their platforms"; (6) a Department of Justice antitrust lawsuit against Google for maintaining monopolies in general search services and search advertising; and (7) the questioning of Facebook founder Mark Zuckerberg by the Senate Judiciary Committee concerning programs used to "to coordinate censorship efforts targeting content creators and others who expressed disfavored viewpoints." …
