Court filing
Twitter’s Reply in Support of Motion to Dismiss — Hart v. Facebook (N.D. Cal.)
Filed May 2, 2022 in Hart v. Facebook; one of 10 filings from this case.
Record facts
| Court | U.S. District Court for the Northern District of California, San Francisco Division |
|---|---|
| Filed | 2022-05-02 |
U.S. District Court for the Northern District of California, San Francisco Division · No. 3:22-cv-00737-CRB · Doc. 86 · 2022-05-02 · Docket on CourtListener
Full text
TWITTER’S REPLY ISO MOTION TO DISMISS
Case No. 3:22-cv-00737-CRB
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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
Willkie Farr & Gallagher LLP
Jonathan Alan Patchen (SBN 237346)
jpatchen@willkie.com
Yuhan Alice Chi (SBN 324072)
ychi@willkie.com
One Front Street, 34th Floor
San Francisco, CA 94111
Telephone: (415) 858-7400
Willkie Farr & Gallagher LLP
Michael Gottlieb (DCBN 974960)*
mgiottlieb@willkie.com
Meryl Conant Governski (DCBN 1023549)*
mgovernski@willkie.com
1875 K Street, N.W.
Washington, DC 20006-1238
Telephone: (202) 303-1442
*Admitted Pro Hac Vice
Attorneys for Defendant Twitter, Inc.
JUSTIN HART
Plaintiff,
vs.
FACEBOOK, INC., TWITTER, INC.; VIVEK
MURTHY in his official capacity as United States
Surgeon General; JOSEPH R. BIDEN, JR., in his
official capacity as President of the United States; the
DEPARTMENT OF HEALTH AND HUMAN
SERVICES, and the OFFICE OF MANAGEMENT
AND BUDGET
Defendants.
Case No. 3:22-cv-00737-CRB
DEFENDANT TWITTER, INC.’S
REPLY IN SUPPORT OF ITS
MOTION TO DISMISS
Judge: Hon. Charles R. Breyer
Date:
May 12, 2022
Time:
10:00 am
Ctrm: Courtroom 6
Action Filed: August 31, 2021
Trial Date: None
Case 3:22-cv-00737-CRB Document 86 Filed 05/02/22 Page 1 of 20
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TABLE OF CONTENTS
I.
PLAINTIFF’S FEDERAL CLAIM IS DEFICIENT AS A MATTER OF LAW. ........1
A.
Plaintiff Has No First Amendment Cause of Action Against Twitter. ..............2
B.
Plaintiff Fails To Adequately Plead State Action By Twitter............................3
1.
The Complaint Does Not Adequately Plead Coercion. .........................3
2.
Plaintiff Has Not Alleged Any Plausible Allegations of Joint Action. ..6
II.
THE COMPLAINT FAILS TO STATE A CLAIM FOR A VIOLATION OF THE
CALIFORNIA CONSTITUTION. ................................................................................8
III.
PLAINTIFF’S PROMISSORY ESTOPPEL CLAIM FAILS BECAUSE THERE IS
NO CLEAR AND UNAMBIGUOUS PROMISE ON WHICH HE COULD
REASONABLY RELY. ..............................................................................................11
IV.
PLAINTIFF’S CLAIMS ARE BARRED. ...................................................................13
A.
The First Amendment Bars All Of Plaintiff’s Claims As To Twitter. .............13
B.
Section 230 Bars All Of Plaintiff’s Claims. .....................................................13
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TABLE OF AUTHORITIES
Page(s)
Cases
Aguilar v. Int’l Longshoremen's Union Loc. No. 10,
966 F.2d 443 (9th Cir. 1992) ...................................................................................................11
Ashcroft v. Iqbal,
556 U.S. 662 (2009) ...............................................................................................................3, 4
Belgau v. Inslee,
975 F.3d 940 (9th Cir. 2020), cert. denied, 141 S. Ct. 2795 (2021) ..........................................8
Blum v. Yaretsky,
457 U.S. 991 (1982) ...............................................................................................................3, 6
Briggs v. Eden Council for Hope & Opportunity,
19 Cal. 4th 1106 (1999) ...........................................................................................................10
Brittain v. Twitter, Inc.,
No. 19-cv-00114-YGR, 2019 WL 2423375 (N.D. Cal. June 10, 2019) ..................................15
Chavarria v. Ralph’s Grocery Co.,
733 F.3d 916 (9th Cir. 2013) ...................................................................................................13
Children’s Health Defense v. Facebook, Inc.,
546 F. Supp. 3d 909 (N.D. Cal. 2021) ...................................................................................2, 7
Correctional Servs. Corp. v. Malesko,
534 U.S. 61 (2001) .....................................................................................................................2
Cty. of Santa Clara v. Trump,
250 F. Supp. 3d 497 (N.D. Cal. 2017) .......................................................................................5
Daniel v. Wayans,
8 Cal. App. 5th 367 (2017) ......................................................................................................10
Daniels v. Alphabet, Inc.,
No. 20-cv-04687-VKD, 2021 WL 1222166 (N.D. Cal. Mar. 31, 2021) .................................15
Darnaa, LLC v. Google, Inc.,
No. 15-cv-03221-RMW, 2015 WL 7753406 (N.D. Cal. Dec. 2, 2015) ..................................13
Doe v. Google LLC,
No. 20-CV-07502-BLF, 2021 WL 4864418 (N.D. Cal. Oct. 19, 2021) ....................................6
Case 3:22-cv-00737-CRB Document 86 Filed 05/02/22 Page 3 of 20
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Ebeid v. Facebook, Inc.,
No.18-cv-07030-PJH, 2019 WL 2059662 (N.D. Cal. may 9, 2019) .......................................15
Fashion Valley Mall, LLC v. National Labor Relations Board,
42 Cal. 4th 850 (2007) ...............................................................................................................9
Fed. Agency of News LLC v. Facebook, Inc.,
432 F. Supp. 3d 1107 (N.D. Cal. 2020) ...................................................................................15
Flagg Bros. Inc. v. Brooks,
436 U.S. 149 (1978) ...................................................................................................................8
Golden Gateway Ctr. v. Golden Gateway Tenants Ass’n,
26 Cal. 4th 1013 (2001) .........................................................................................................8, 9
Heineke v. Santa Clara Univ.,
965 F.3d 1009 (9th Cir. 2020) ...............................................................................................3, 6
hiQ Labs, Inc. v. LinkedIn Corp.,
273 F. Supp. 3d 1099 (N.D. Cal. 2017), aff’d and remanded, 938 F.3d 985 (9th
Cir. 2019), cert. granted, judgment vacated on other grounds, 141 S. Ct. 2752
(2021) ...................................................................................................................................9, 10
Huber v. Biden,
No. 21-CV-06580-EMC, 2022 WL 827248 (N.D. Cal. Mar. 18, 2022) ................................6, 7
Informed Consent Action Network v. YouTube LLC,
No. 20-CV-09456-JST, 2022 WL 278386 (N.D. Cal. Jan. 31, 2022) .......................................3
Kahn Creative Partners, Inc. v. Nth Degree, Inc.,
No. CV 10-932-JST FFMX, 2011 WL 1195680 (C.D. Cal. Mar. 29, 2011) ...........................11
Knievel v. ESPN,
393 F.3d 1068 (9th Cir. 2005) .................................................................................................12
Knudsen v. Sprint Commc'ns Co.,
No. C13-04476 CRB, 2016 WL 4548924 (N.D. Cal. Sept. 1, 2016) (Breyer, J.) ...................13
Lewis v. Google LLC,
461 F. Supp. 3d 938 (N.D. Cal. 2020) .....................................................................................15
Malmstrom v. Kaiser Aluminum & Chem. Corp.,
187 Cal. App. 3d 299 (1986) ...................................................................................................11
Missud v. Oakland Coliseum Joint Venture,
No. 12-02967 JCS, 2013 WL 3286193 (N.D. Cal. June 27, 2013) .......................................6, 7
Moss v. U.S. Secret Serv.,
572 F.3d 962 (9th Cir. 2009) .....................................................................................................4
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Murphy v. Twitter, Inc.,
60 Cal. App. 5th 12 (2021) ................................................................................................11, 13
O’Handley v. Padilla,
No. 21-cv-07063-CRB, 2022 WL 93625 (N.D. Cal. Jan. 10, 2022) ...........................1, 4, 7, 15
Overstreet v. United Bhd. of Carpenters & Joiners of Am., Loc. Union No. 1506,
409 F.3d 1199 (9th Cir. 2005) ...................................................................................................2
Packingham v. North Carolina,
137 S. Ct. 1730 (2017) .............................................................................................................10
Ralphs Grocery Co. v.United Food & Com. Workers Union Loc. 8,
55 Cal. 4th 1083 (2012) .............................................................................................................8
Spy Phone Labs v. Google, Inc.,
15-cv-03756-KAW, 2016 WL 6025469 (N.D. Cal. Oct. 14, 2016) ........................................14
Tsao v. Desert Palace, Inc.,
698 F.3d 1128 (9th Cir. 2012) ...................................................................................................6
United States v. Ritchie,
342 F.3d 903 (9th Cir. 2003) ...................................................................................................12
United States v. Rothman,
492 F.2d 1260 (9th Cir. 1973) .................................................................................................14
Zepeda v. Holder,
483 F. App’x 315 (9th Cir. 2012) ............................................................................................11
Ziglar v. Abbasi,
137 S. Ct. 1843 (2017) .........................................................................................................2, 15
Zimmerman v. Facebook, Inc.,
No. 19-cv-04591-VC, 2020 WL 5877863 (N.D. Cal. Oct. 2, 2020) .........................................9
Zuni Pub. Sch. Dist. No. 89 v. Dep't of Educ.,
550 U.S. 81 (2007) ...................................................................................................................15
Statutes
Communications Decency Act Section 230 ...................................................................................1
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The Court should grant Defendant Twitter Inc.’s (“Twitter”) Motion to Dismiss (Dkt. 70
(“Motion” or “Mot.”)).1 As Twitter’s Motion demonstrates, Plaintiff’s Complaint should be
dismissed with prejudice as a matter of law. The Complaint fails to state a claim for a violation of
either the Federal or California constitutions as Plaintiff has failed to allege any facts demonstrating
state action or that Twitter’s platform is “freely and openly” accessible to the public. As this Court
recently recognized, dismissal of the constitutional claims is warranted where there is no evidence
that Twitter’s actions are the product of state action and the Court should similarly find that
dismissal is warranted here. See O’Handley v. Padilla, No. 21-cv-07063-CRB, 2022 WL 93625, at
*10 (N.D. Cal. Jan. 10, 2022). The Complaint’s claim of promissory estoppel is also deficient and
should be dismissed because Plaintiff entirely failed to allege any clear and unambiguous promise
Twitter made to Plaintiff or allege any promise that Plaintiff could reasonably rely on. And all of
Plaintiff’s claims are either barred by Twitter’s own First Amendment rights, Section 230 of the
Communications Decency Act, or the Terms of Service to which Plaintiff contractually agreed.
Plaintiff’s Opposition (Dkt. 78 (“Opposition” or “Opp.”)) fails to demonstrate any basis that could
support a claim in this matter and fails to rebut Twitter’s arguments set forth in its Motion. Instead,
Plaintiff asks this Court to ignore controlling legal doctrines and misapply pleading standards.
Accordingly, the Court should grant Twitter’s Motion to dismiss the Complaint with prejudice.
I.
PLAINTIFF’S FEDERAL CLAIM IS DEFICIENT AS A MATTER OF LAW.
Plaintiff has not stated a federal First Amendment claim against Twitter because the
Complaint alleges only a direct cause of action, which controlling Supreme Court authority does
not recognize against a private corporation. The claim also fails because the Complaint relies on
facially conclusory and implausible assertions of state action; it does not, and cannot, provide any
factual allegations demonstrating that Twitter’s conduct was that of a state actor. The First
Amendment claim against Twitter should be dismissed with prejudice.
1 This Reply incorporates all terms as defined in the Motion.
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A.
Plaintiff Has No First Amendment Cause of Action Against Twitter.
As set forth in Twitter’s Motion, Plaintiff has not pleaded a cause of action against Twitter
based on the First Amendment and the only possible cause of action—a Bivens action—was not
available because Twitter is a corporation. Mot. 6–7. Plaintiff concedes that a Bivens action “was
not designed to be brought against a private corporation” and that he does not have a “private right
of action” to bring this lawsuit. Opp. at 13.2
Plaintiff nevertheless tries to create a cause of action by arguing that courts will imply a
cause of action for injunctive relief for constitutional claims. Opp. at 13–14 (citing Free Enter.
Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 491 n.2 (2010) and Bell v. Hood, 327 U.S. 678,
684 (1946)). This attempt should be rejected. At most, Plaintiff’s cases permit an implied cause of
action for injunctive relief against government officials. Plaintiff cites no case implying a cause of
action for injunctive relief against a private party.
The Court should reject Plaintiff’s attempt to reframe his cause of action and imply a claim
for injunctive relief against Twitter because “special factors counseling hesitation” and “an
alternative remedial structure” exist here. Ziglar v. Abbasi, 137 S. Ct. 1843, 1858–59 (2017).
Plaintiff’s action against the Federal Defendants is an “alternative remedial structure.” Because
Plaintiff’s theory is that Twitter was either coerced by, or acting jointly with, the Federal Defendants
(Opp. at 2–13)—and if he is correct and has standing—then he can obtain relief via an injunction
precluding the Federal Defendants from engaging in the alleged conduct. Further, there are “special
factors counseling hesitation” against implying an injunctive relief claim against Twitter, including
(1) Congressional rejection of such a claim via Section 230 of the CDA and (2) because implying
injunctive relief would implicate Twitter’s own First Amendment right to decide the content to
publish or remove from its platform. Mot. at 19; cf. Overstreet v. United Bhd. of Carpenters &
Joiners of Am., Loc. Union No. 1506, 409 F.3d 1199, 1209 (9th Cir. 2005) (applying constitutional
2 The law precludes creation of a Bivens action here. See Ziglar v. Abbasi, 137 S. Ct. 1843, 1856
(2017) (citing cases); Correctional Servs. Corp. v. Malesko, 534 U.S. 61, 71 (2001) (“inferring a
constitutional tort remedy against a private entity [] is therefore foreclosed”); Children’s Health
Defense v. Facebook, Inc., 546 F. Supp. 3d 909, 922–24 (N.D. Cal. 2021) (citing Ziglar and
dismissing Bivens First Amendment claim against private entity defendants).
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avoidance doctrine to NLRB’s injunctive authority because of the potential First Amendment
issues). In sum, there is no basis for implying an injunction-only cause of action against Twitter
here.
B.
Plaintiff Fails To Adequately Plead State Action By Twitter.
Even if Plaintiff properly alleged a cause of action under the First Amendment, Plaintiff still
must plead that Twitter’s alleged conduct amounts to state action. Plaintiff has failed to do so.
Plaintiff’s allegations of coercion and joint action are conclusory and implausible (Compl. ¶¶ 1–2,
4, 7–20 bis, 53, 55–61), and do not sufficiently plead any degree of direction or participation by the
Federal Defendants in Twitter’s decision to take action with respect to Plaintiff (Mot. at 7–15).
1.
The Complaint Does Not Adequately Plead Coercion.
To establish coercion, Plaintiff must plausibly plead that the Federal Defendants
“‘commanded a particular result in, or otherwise participated in, his specific case.” Heineke v.
Santa Clara Univ., 965 F.3d 1009, 1014 (9th Cir. 2020) (emphasis added); Informed Consent Action
Network v. YouTube LLC, No. 20-CV-09456-JST, 2022 WL 278386, at *6 (N.D. Cal. Jan. 31, 2022);
see Blum v. Yaretsky, 457 U.S. 991, 1004–05 (1982). The Complaint fails to plead any factual
allegations demonstrating coercion and such a finding would be inconsistent with the facts as
pleaded.
i.
Plaintiff fails to plead any factual allegations that amount to coercion.
Plaintiff’s effort to plead coercion relies primarily on the allegation that on “information and
belief, Defendants Biden and Murthy directed Defendants Facebook and Twitter to remove Hart’s
social media posts because they disagreed with the viewpoints he espoused in them and conspired
with Facebook and Twitter to do so.” Opp. at 5–6 (citing Compl. ¶ 20 bis); see also id. (citing
Compl. ¶ 53 (“directed Facebook and Twitter to remove social media posts like those of Hart”).
Plaintiff repeatedly asserts that this Court must accept these allegations as true. Opp. at 1–2, 8–9.
Contrary to Plaintiff’s demands, the Court need not accept these allegations as true because they
amount to a “legal conclusion couched as a factual allegation[.]” See Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (internal quotation marks and citations omitted); see also Mot. at 9–10. “While
legal conclusions can provide the framework of a complaint, they must be supported by factual
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allegations.” Iqbal, 556 U.S. at 679 (emphasis added). Plaintiff’s allegation that the federal
government “directed” Twitter’s actions regarding Plaintiff is not “supported by factual allegations”
(id.) and “is just the sort of conclusory allegation that the Iqbal Court deemed inadequate” (Moss v.
U.S. Secret Serv., 572 F.3d 962, 970 (9th Cir. 2009)). See also Mot. at 9.3 Plaintiff has no factual
allegation of direct communication between anyone in the government with anyone with Twitter
about anything, let alone about Plaintiff’s “specific case,” including how, who, or when that alleged
conversation occurred.
ii.
Federal Defendants’ alleged conduct does not demonstrate coercion.
Plaintiff claims statements by the Federal Defendants support his conclusory allegation that
the Federal Defendants “directed” Twitter to take action. Opp. at 5–6. But none of the statements
in the underlying materials were made directly to Twitter or include any reference to Plaintiff or his
tweets. Compare Opp. at 5, with Patchen Decl. Exs. 4–6. Moreover, nothing in the statements
reflect the Federal Defendants directing, ordering, or commanding Twitter to do anything. To the
contrary, the language reflects at most requests and suggestions. See Patchen Decl. Ex. 6 (Advisory)
at 12; Mot. at 10; accord Opp. at 7 (quoting Advisory as providing “recommendations for how that
issue should be addressed”). The Opposition attempts to argue that President Biden’s statement to
the media that social media platforms are “killing people” is a coercive “threat” that “shames” Social
Media companies into submission. Opp. at 3–4 (citing Compl. ¶ 19 bis). Plaintiff provides no
authority supporting a finding that such a general statement of opinion amounts to coercion, and he
fails to point to any “factual content that allows the court” to infer that Twitter felt “shamed” or
“threatened” or coerced by the President’s statement. O’Handley v. Padilla, 2022 WL 93625, at *6
(N.D. Cal. Jan. 10, 2022) (“A claim is plausible ‘when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.’”
(quoting Iqbal, 556 U.S. at 678)). Even if the President’s rhetoric caused Twitter to feel “ashamed,”
3 Plaintiff claims Defendants are requiring he “prove” his allegations rather than hold him to his
burden of pleading factual allegations sufficient to state a claim. E.g. Opp. at 7–8. To the extent
the Opposition is claiming that it needs discovery to properly plead its claim (id.), such a request is
legally improper. Iqbal, 556 U.S. at 678–79 (Federal Rule 8 “does not unlock the doors of discovery
for a plaintiff armed with nothing more than conclusions.”).
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“[t]he President certainly has the right to use the bully pulpit to encourage his policies.” Cty. of
Santa Clara v. Trump, 250 F. Supp. 3d 497, 539 (N.D. Cal. 2017). There is thus good reason for
the rigorous requirements for pleading coercion, a requirement Plaintiff fails to satisfy here.
The timeline in the Complaint also contradicts and makes implausible any finding that the
Federal Defendants’ statements coerced Twitter. Plaintiff insists that the relevant Federal Defendant
communications occurred on or before July 15 and 16. Opp. at 9. But, according to the Complaint,
Plaintiff posted the Violative Tweet on July 18, 2021 and Twitter removed it the same day. Compl.
¶¶5–6 bis.4 Taken to its logical conclusion, Plaintiff’s argument would mean that the Federal
Defendants directed Twitter to remove the Violative Tweet three days before it existed. Accepting
arguendo that the Federal Defendants directed Twitter to take any action on July 15 and 16, 2021,
such a directive could not have been specific to Plaintiff. Even accepting the Opposition’s thesis
that there was an “already-existing, ongoing policy” at the time of the press events, there is no
nexus—based on the pleaded timeline of events—between Twitter’s decision to remove
misinformation generally pursuant to its COVID-19 Misleading Information Policy and Twitter’s
alleged conduct specific to the Plaintiff. Nor does the Complaint allege that Twitter created,
changed, or enforced that policy differently after July 2021.
iii.
Plaintiff’s request that the Court find coercion based solely on
allegations
of
government
conduct
should
be
rejected.
Plaintiff asks this Court to ignore the legal requirement and his burden to show that Twitter
was coerced in “his specific case” (Opp. at 7) and proffers (without legal support) that it is legally
sufficient to find coercion based on allegations that the government “asked social media companies
to ‘consistently take action against misinformation super-spreaders on their platforms’” (Opp. at 6–
4 Twitter argued in the Motion that the Complaint alleged that Twitter removed the Violative Tweet
prior to “any” directives of the Federal Defendants (e.g. Mot. at 9) based on the Complaint alleging,
immediately after referencing the removals by Twitter and Facebook, that: “Within days of these
two removals, the administration of Defendant Biden revealed publicly that it is directing social
media companies to remove posts it deems to be spreading misinformation regarding COVID-10.”
Compl. ¶ 7 bis (emphasis added).
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7 (citation omitted)).5 As discussed above, binding law requires otherwise. See Heineke, 965 F.3d
at 1014; see also Doe v. Google LLC, No. 20-CV-07502-BLF, 2021 WL 4864418, at *3 (N.D. Cal.
Oct. 19, 2021). In Doe v. Google, Judge Freeman of this District rejected an identical argument in
a case where the plaintiff pointed to “generalized statements from lawmakers pertaining to
‘coronavirus-related misinformation,’ ‘disinformation proliferating online,’ ‘QAnon-related
speech,’ and ‘conspiracy theories’” as a basis for coercion. Doe v. Google, 2021 WL 4864418, at
*3. As Judge Freeman explained:
The Court disagrees that broad lawmaker proclamations regarding
‘misinformation’ or ‘QAnon-related speech,’ for example, are sufficient
to show that the government “commanded” the suspension of Plaintiffs’
accounts. Even if Defendants had complied with these lawmaker
statements to the letter, they would still have had the ultimate discretion
on what videos or accounts fit into buckets like “misinformation” or
“QAnon-related speech.”
Id. Plaintiff provides no reason for this Court disagree and allow coercion to be alleged based on
general statements and requests from the federal government. To the contrary, the law requires
otherwise. See Blum, 457 U.S. at 1010 (coercion means “such significant encouragement” that the
action “must in law be deemed” that of the government); see also Mot. at 8–9 (citing cases). The
Complaint fails to allege coercion as a matter of law.
2.
Plaintiff Has Not Alleged Any Plausible Allegations of Joint Action.
To sufficiently plead joint action, the law requires factual allegations demonstrating that the
government “so far insinuated itself into a position of interdependence” with Twitter “that it must
be recognized as a joint participant in the challenged activity.” Tsao v. Desert Palace, Inc., 698 F.3d
1128, 1140 (9th Cir. 2012); see Huber v. Biden, No. 21-CV-06580-EMC, 2022 WL 827248, at *53
(N.D. Cal. Mar. 18, 2022) (no joint action because Twitter “took no action out of the ordinary or in
5 The Opposition attempts to re-write the Complaint as stating that “senior White House officials
regularly contact senior corporate executives to direct them to take down what they deem to be
misinformation.” Opp. at 3 (citing Compl. ¶ 7–20 bis). That is not what is alleged and Plaintiff
cannot amend the Complaint by opposition. See Compl. ¶ 7–20 bis (no allegations about any specific
and direct communication between “senior White House officials” and “senior corporate
executives”; alleging only “[o]n information and belief” that Federal Defendants “directed . . .
Twitter to remove Hart’s social media posts”); Missud v. Oakland Coliseum Joint Venture, No. 12-
02967 JCS, 2013 WL 3286193, at *9 (N.D. Cal. June 27, 2013) (“plaintiff’s statement in an
opposition brief cannot amend the complaint under Rule 15”). Even if he could, such an allegation
is an insufficient conclusory allegation and would not cure the defects in his claim. Mot. at 9.
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contravention of its clear established authority which would have suggested influence or facilitation
by President Biden”); see also Children’s Health Def., 546 F. Supp. 3d at 9326; Mot. at 11–15.
Plaintiff does not, and cannot, meet that standard.
Plaintiff asserts that the Complaint pleads joint action based on allegations that the Federal
Defendants are in “regular touch” with, flag “problematic posts” to, and published guidance
encouraging action by the Social Medial Defendants. Opp. at 4, 8–9. But legal authority holds that
such generalized, public statements do not demonstrate or properly allege interdependence. See
Mot. at 11–15 (citing cases). Notably, this Court in O’Handley expressly rejected such an argument
by holding that “statements about working together” and “one-off, one-way communication” from
the government to a social media company fails to “reflect ‘substantial cooperation[,]’” especially
in the absence of allegations that “Twitter consulted or conferred with the government on content
decisions.” O’Handley, 2022 WL 93625, at *10; Mot. at 13.7 Plaintiff in his Opposition does not
address or attempt to distinguish his Complaint from the one this Court dismissed with prejudice in
O’Handley. The Opposition’s sole reference to O’Handley relates to an allegation in that complaint
that the government “established ‘dedicated reporting pathways’ for government officials to identify
what needs to be taken down” with respect to election disinformation. Opp. at 5; O’Handley, 2022
WL 93625, at *6. Leaving aside that Plaintiff did not include such allegation in his Complaint and
therefore cannot rely on it here (Missud, 2013 WL 3286193, at *9), purported “dedicated reporting
pathways” was an insufficient basis in that case to establish joint action. The allegations in
Plaintiff’s Complaint are even more bareboned than those in O’Handley, and Plaintiff’s Opposition
does not point to any reason why the Court should reach a different result here. See also Huber,
2022 WL 827248, at *6 (“[a]t best, Plaintiff’s allegations may suggest a shared general interest in
6 Plaintiff attempts to distinguish Children’s Health Defense by arguing that Congressman Adam
Schiff “does not have the power to effect executive action like the President of the United States”
and that sending letters and making public statements are “not comparable to ‘being in regular touch
with these social media platforms[.]’” Opp. at 12. But Plaintiff cites no law to support why those
factual differences are material. They are not; even if true, such allegations do not show the
government has “so far insinuated itself into a position of interdependence” with Twitter. Id.
7 The Complaint’s conclusory claims that the Social Media Defendants are “willing participants”
does not sufficiently plead facts demonstrating that Twitter took any actions because of coercion by
the Federal Government as opposed to its own volition. Opp. at 5.
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reducing online COVID-19 misinformation, but that shared interest does not support a finding of a
conspiracy between the government and Twitter to violate Plaintiff’s First Amendment rights”).
Plaintiff ignores that the law requires factual allegations demonstrating “interdependence”
by claiming that he only need show that “the government affirms, authorizes, encourages, or
facilitates unconstitutional conduct through its involvement with a private party.” Opp. at 4 (quoting
Ohno v. Yasuma, 723 F.3d 984, 996 (9th Cir. 2013)). Contrary to Plaintiff’s assertions, the Ninth
Circuit has explained that a “private party cannot be treated like a state actor where the government’s
involvement was only to provide ‘mere approval or acquiescence,’ ‘subtle encouragement,’ or
‘permission of a private choice.’” Belgau v. Inslee, 975 F.3d 940, 947 (9th Cir. 2020), cert. denied,
141 S. Ct. 2795 (2021) (quotations removed); accord Flagg Bros. Inc. v. Brooks, 436 U.S. 149, 157,
164–65 (1978) (The Supreme Court “has never held that [the government’s] mere acquiescence in
a private action converts that action into that of the State.”). While Plaintiff asserts it is “much
easier” to demonstrate joint action than coercion (Opp. at 4), he does not plead any factual
allegations supporting either theory and, therefore, fails to state a claim of state action as a matter
of law.
II.
THE COMPLAINT FAILS TO STATE A CLAIM FOR A VIOLATION OF THE
CALIFORNIA CONSTITUTION.
Unlike the open-air shopping mall in Pruneyard, Twitter is not subject to the Free Speech
Clause of the California Constitution because it is not “freely and openly accessible” to the public
“in a manner similar to that of public streets and sidewalks.” See Golden Gateway Ctr. v. Golden
Gateway Tenants Ass’n, 26 Cal. 4th 1013, 1021, 1023 (2001) (plurality); Ralphs Grocery Co.
v.United Food & Com. Workers Union Loc. 8, 55 Cal. 4th 1083, 1118 (2012).8 Twitter’s Terms
of Service are part of a legally binding contract to which would-be Twitter account holders
(including Plaintiff) must affirmatively agree as a condition to accessing Twitter’s private
property. This fact ends the inquiry and Plaintiff cannot disregard clear authority demonstrating
8 Plaintiff does not provide any legal support for why it is improper “at this stage of the pleadings”
for the Court to consider whether the Complaint properly pleads that Twitter is “freely and openly
accessible” as a matter of law. Opp. at 15.
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that Pruneyard only extends to real property that is “freely and openly accessible to the public.”
Golden Gateway, 26 Cal. 4th at 1032.
Contrary to Plaintiff’s claims, Twitter is not like the shopping centers in Pruneyard and
Fashion Valley Mall, LLC v. National Labor Relations Board, 42 Cal. 4th 850, 870 (2007), which
invited anyone onto their premises without condition. Nor is it like the gated community in
Laguna, where the defendant had no “authority to decide what persons or publications shall be
afforded uninvited entry[.]” 131 Cal. App. 3d 816, 831 (1982) (emphasis in original). Plaintiff
attempts to evade the fact that Twitter’s Terms of Service limit access to the platform by asserting
that, in his view, the Terms of Service are “no different from posters at the entrance to many
shopping malls setting rules for speech and other activities.” Opp. at 15–16. But Plaintiff cites no
law to support that proposition. Nor does he attempt to explain in his Opposition why this Court
should find Pruneyard applicable to Twitter despite multiple courts having rejected expanding
Pruneyard to the Internet, or to any context outside of real property. See, e.g, Zimmerman v.
Facebook, Inc., No. 19-cv-04591-VC, 2020 WL 5877863, at *2 (N.D. Cal. Oct. 2, 2020); hiQ
Labs, Inc. v. LinkedIn Corp., 273 F. Supp. 3d 1099, 1115–16 (N.D. Cal. 2017), aff’d and
remanded, 938 F.3d 985 (9th Cir. 2019), cert. granted, judgment vacated on other grounds, 141 S.
Ct. 2752 (2021); Mot. at 16–17 (citing cases).9
Plaintiff asks this Court to break with precedent and hold that anytime members of the
public are invited to a forum, it becomes an “essential and invaluable forum for exercising [free
speech] rights” and, therefore, a state actor for purposes of the state constitutional analysis. Opp.
at 15–17. Under Plaintiff’s theory, a private business would violate the California Constitution
anytime it held a public dialogue but sought to limit the participants. Such an outcome is contrary
9 Of those cases that the Motion cites, Plaintiff engages solely with Zimmerman, 2020 WL
5877863, at *1, and only to claim the case does not hold that social media companies “can never
be sued under California’s free speech clause, apparently regardless of whether they committed
joint action.” Opp. at 16. The relevance of Zimmerman (and why Twitter cited it in its Motion),
is its reasoning that a social media company, like Twitter, does not “become a ‘quasi-state actor’
by operating a ‘digital town square’ and providing a ‘public free speech forum.’” Id. at 2.
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to the law, as discussed above and in Twitter’s Motion, and Plaintiff offers no case stating
otherwise.
Plaintiff cites only two cases for the proposition that the Internet is a “quintessential
forum.” Opp. at 15 (citing Packingham v. North Carolina, 137 S. Ct. 1730, 1737 (2017) and
Daniel v. Wayans, 8 Cal. App. 5th 367, 387 (2017)). Neither case is relevant to or provides
support for Plaintiff’s argument that social media companies are de facto state actors.
Packingham concerned a governmental (not private) attempt to regulate speech—a North Carolina
statute prohibiting registered sex offenders from accessing social media—and did not, as Plaintiff
states, hold that Facebook was a quintessential forum but rather invalidated the statute for being
insufficiently narrow. Packingham, 137 S. Ct. at 1735-736. Daniel addressed whether an Internet
post was made “in a public forum” for purposes of California’s Anti-SLAPP Statute, which “is
broader than the scope of constitutionally protected speech” and therefore does not support the
argument “that the Internet generally is a public forum subject to Art. I, Section 2 of the California
Constitution.” hiQ Labs, Inc., 273 F. Supp. 3d at 1117; accord Briggs v. Eden Council for Hope
& Opportunity, 19 Cal. 4th 1106, 1119-120 (1999).
Following well-established law, the Court can, and should, determine that Twitter is not
subject to the Pruneyard doctrine. The Opposition provides no basis for this Court to depart from
the reasoning of cases declining to extend Pruneyard to private social media networks. Because
Plaintiff has failed to plead any allegations that Twitter’s actions should be considered actions by
the State of California,10 the Court should dismiss Count III.11
10 Under the Supremacy Clause, the California Constitution has no relevance to Twitter’s actions
to the extent that Twitter’s actions are (as alleged by Plaintiff) federal actions; the California
Constitution only limits actions by California.
11 At a minimum, the Court should dismiss Plaintiff’s prayer for financial relief associated with
Count III because, as discussed in the Motion and unopposed, California law bars such recovery.
Mot. at 17 n.14
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III.
PLAINTIFF’S PROMISSORY ESTOPPEL CLAIM FAILS BECAUSE THERE IS NO
CLEAR AND UNAMBIGUOUS PROMISE ON WHICH HE COULD REASONABLY
RELY.
Plaintiff’s Promissory Estoppel claim cannot survive because the Complaint fails to allege
any “clear and unambiguous” promise on which Plaintiff reasonably relied. Mot. at 17-19.
Plaintiff’s Opposition confirms that dismissal is warranted on these grounds.
Plaintiff argues that Twitter’s statement that “Twitter’s purpose is to serve the public
conversation[,]”demonstrates that Twitter “implicitly promised him that it does not ‘prohibit
viewpoints that oppose wearing masks[.]” Opp. at 17. By arguing that Twitter’s “promise” was
implicit, Plaintiff concedes that there is no clear or unambiguous promise made to him as required
by law. Aguilar v. Int’l Longshoremen's Union Loc. No. 10, 966 F.2d 443, 446 (9th Cir. 1992)
(“fact that inferences might be drawn from these representations, however, does not transform them
into an enforceable promise”); accord Zepeda v. Holder, 483 F. App’x 315, 317 (9th Cir. 2012)
(“actual, explicit promise”); Kahn Creative Partners, Inc. v. Nth Degree, Inc., No. CV 10-932-JST
FFMX, 2011 WL 1195680, at *6 (C.D. Cal. Mar. 29, 2011); Murphy v. Twitter, Inc., 60 Cal. App.
5th 12, 39 (2021) (plaintiff failed to “not allege[] Twitter ever made a specific representation directly
to” plaintiff); see also Mot. at 17-18. Because Plaintiff failed entirely to demonstrate any clear and
unambiguous promise, the Court can dismiss Count IV on this basis alone.
Plaintiffs’ purported expectation that Twitter’s Terms of Service would “remain consistent”
and did not always “prohibit viewpoints opposing masks” is unreasonable and directly contradicted
by the Terms. Opp. at 17-18. The Terms of Service to which Plaintiff agreed explicitly stated that
the Terms would be revised and that “the most current version of the Terms” governs. Mot. at 3 n.
4. Moreover, Twitter had the right to remove Plaintiff’s content or suspend Plaintiff “at any time
for any or no reason.” See Patchen Decl. Ex. 1 at § 4. It is unreasonable as a matter of law for
Plaintiff to rely on a “promise” that is directly contrary to the Terms of Service. See Mot. at 18
(citing Murphy, 60 Cal. App. 5th at 38); Malmstrom v. Kaiser Aluminum & Chem. Corp., 187 Cal.
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App. 3d 299, 319 (1986) (“reliance on representations that contradict a written agreement is not
reasonable.”).12
Plaintiff argues that the Court cannot determine whether the Terms of Service bar the
Complaint as a matter of law “at this stage” because the Court cannot “consider factual evidence
not in the record.” Opp. at 26.13 This is without merit. As explained in Twitter’s unopposed Request
for Judicial Notice, the Court may properly consider the Terms of Service pursuant to both
incorporation-by-reference and judicial notice. See Dkt. 71; Knievel v. ESPN, 393 F.3d 1068, 1076
(9th Cir. 2005); United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003). Plaintiff further asserts
that the Court “may not take Twitter’s word that its current terms of service as they existed at times
relevant to the Complaint,” claiming a “factual dispute” as to which terms were in effect at the time
of the Violative Tweet. Opp. at 27–28 (emphasis in original). But Plaintiff agreed to be subject to
the latest Terms of Service, and Twitter maintains an archive of all of its Terms of Service. See
Twitter, Previous Terms of Service, www.twitter.com/en/tos/previous. There is no reasonable
question of the accuracy of this archive and no reason why the Court cannot take judicial notice of
the current version, as well as the one which preceded it, especially since all contain the same
provisions barring this suit. See id. at Version 15: June 18, 2020; Patchen Decl. Ex. 1; Request for
Judicial Notice.
The Court should also reject Plaintiff’s attempt to undo the parties’ contract to save his
claim. First, Plaintiff asserts that the Court should disregard the Terms of Service because they are
unconscionable. Yet Plaintiff does not dispute that he is bound by the clause and in fact concedes
that he was limited to publishing posts that “complied with the Social Media Defendants’ terms.”
Compare Opp. at 18 (discussing “promise” contained in Twitter’s Terms), with Opp. at 27 (claiming
Terms of Service were unconscionable). Regardless, there is no merit to Plaintiff’s claim that the
12 Likewise, it was not reasonable to Plaintiff to believe that the Terms did not prohibit misleading
information about masks at the time he posted the Violative Tweet because the Complaint concedes
the COVID-19 Misleading Information Policy existed. See Mot. at 3–4.
13 Plaintiff asserts that the Court cannot consider the Terms in various places in the Opposition,
including in the context of promissory estoppel. Opp. at 17. Twitter responds to those various
arguments collectively here.
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Terms here are unconscionable and should be rejected. Murphy, 60 Cal. App. 5th at 36 (Twitter
terms “allowing it to suspend or terminate users’ accounts for any or no reason . . . do[] not shock
the conscience or appear unfairly one-sided.”); Chavarria v. Ralph’s Grocery Co., 733 F.3d 916,
922–23 (9th Cir. 2013) (“Under California law, a contract must be both procedurally and
substantively unconscionable to be rendered invalid” and a “contract is substantively
unconscionable when it is unjustifiably one-sided to such an extent that it ‘shocks the conscience.’”);
see also Darnaa, LLC v. Google, Inc., No. 15-cv-03221-RMW, 2015 WL 7753406, at *3 (N.D. Cal.
Dec. 2, 2015) (“[I]t is reasonable for [a platform] to retain broad discretion over [its] services[.]”).
Finally, Plaintiff’s efforts to invalidate the Terms of Service flounders on the fact that those Terms
have already been enforced in this case, even over claims of unfair bargaining power. See Dkt. 34
(Motion to transfer granted based on forum selection clause in Terms of Service); Dkt. 36 at 5–6
(arguing unfair bargaining power as part of Plaintiff’s opposition to motion to transfer); Dkt. 45 at
6:4–6 (granting motion and rejecting Plaintiff’s argument).
Plaintiff’s claim of promissory estoppel cannot survive because he admits Twitter never
made an explicit promise that he could violate its Terms and continue to use its platform, and
reliance on such a promise would be unreasonable.
IV.
PLAINTIFF’S CLAIMS ARE BARRED.
A. The First Amendment Bars All Of Plaintiff’s Claims As To Twitter.
The relief Plaintiff seeks falls squarely within the First Amendment’s protections for
Twitter’s own speech and editorial judgment. Mot. at 19–20. Plaintiff’s Opposition does not
challenge Plaintiff’s argument or address the cases cited. Based on the unopposed reasoning of the
Motion, the First Amendment bars all of Plaintiff’s Claims and warrants dismissal is its entirety.
See Knudsen v. Sprint Commc'ns Co., No. C13-04476 CRB, 2016 WL 4548924, at *10 (N.D. Cal.
Sept. 1, 2016) (Breyer, J.).
B.
Section 230 Bars All Of Plaintiff’s Claims.
As Plaintiff concedes, Section 230 provides “broad immunity.” Opp. at 25. That broad
immunity precludes all of Plaintiff’s claims.
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As set forth in Twitter’s Motion, Section 230(c) independently requires dismissal of
Plaintiff's claim. See Mot. at 20-21. Section 230(c)(1) immunizes Twitter because removal of
content—i.e., the decision not to publish—is the action of a publisher. Id. While Plaintiff’s
Opposition does not expressly address Section 230(c)(1), it asserts that Twitter was not exercising
its own “editorial discretion” because the Federal Defendants actually determined what content was
“objectionable.” See Opp. at 23. But Section 230(c)(1) does not turn on Twitter’s mental state;
“Section 230(c)(1) immunity, however, by its plain terms does not require good faith.” Spy Phone
Labs v. Google, Inc., 15-cv-03756-KAW, 2016 WL 6025469, at *8 (N.D. Cal. Oct. 14, 2016).
Moreover, as discussed above, there are no plausible allegations that the Federal Defendants
communicated or were involved in any way with Twitter’s decisions with respect to Plaintiff that
would substantiate the claim that Twitter was not exercising its own editorial judgment.14
Accordingly, Section 230(c)(1) applies and bars Plaintiff’s claims.
Plaintiff also claims that Section 230 is inapplicable because Twitter did not act of its own
volition. See Opp. at 22–26.15 As discussed above, there is no basis for the Court to determine that
Twitter’s decision to remove the Violative Tweet or lock Plaintiff’s account were involuntary. Nor
did Plaintiff allege any coercion for Twitter to implement the COVID-19 Misleading Information
Policy. See supra. Plaintiff also attempts to argue that the removal was not taken in “good faith”
but simultaneously concedes that he does not claim “bad faith” but rather “no faith at all.” Opp. at
22–23. Regardless, Plaintiff fails to demonstrate or allege any basis to find that Twitter acted in
any way contrary to the “good faith” Section 230(c)(2) requires.
Plaintiff next makes a policy-based argument that “this is a unique case with a novel
circumstance.” Opp. at 25. There is nothing “unique” or “novel” about Plaintiff’s circumstance or
claims, as evident by the case law rejecting virtually identical factual and legal theories (including
14 Plaintiff claims that one way to determine voluntariness would be to ask whether Twitter “would
have taken the material down of their own accord but for government pressure” (Opp. at 23) but
Plaintiff bears the burden to plead sufficient factual allegations and he has not done so.
15 Plaintiff’s reliance on United States v. Rothman, 492 F.2d 1260 (9th Cir. 1973), is wholly
misplaced. There is no basis to find that Twitter was “systematically psychologically coerced” by
the Federal Defendants to the point it could not, and did not, act voluntarily. Opp. at 22–23.
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in O’Handley). No matter the merits of any purported policy arguments, they are irrelevant to the
Court’s analysis where, as here, “the intent of Congress is clear and unambiguously expressed by
the statutory language at issue[.]” Zuni Pub. Sch. Dist. No. 89 v. Dep't of Educ., 550 U.S. 81, 93–
94 (2007).
Plaintiff relies on Fed. Agency of News LLC v. Facebook, Inc., 432 F. Supp. 3d 1107 (N.D.
Cal. 2020) to argue that Section 230 does not apply to his federal constitutional claim. But since
the defendant in that case did not seek to apply Section 230 to the constitutional claim, the court’s
brief discussion is dicta. Id. at 1116, 1120. Moreover, the Supreme Court’s Ziglar decision is
predicated on Congress having the power to preclude causes of action, even for constitutional
violations. See 137 S. Ct. at 1856. Thus, multiple courts have reached the opposite conclusion and
upheld Section 230’s application to federal constitutional claims. Daniels v. Alphabet, Inc., No. 20-
cv-04687-VKD, 2021 WL 1222166, at *11–12 (First Amendment) (N.D. Cal. Mar. 31, 2021); Lewis
v. Google LLC, 461 F. Supp. 3d 938, 953–55 (N.D. Cal. 2020) (First Amendment); Brittain v.
Twitter, Inc., No. 19-cv-00114-YGR, 2019 WL 2423375, at *3 (N.D. Cal. June 10, 2019) (First
Amendment and promissory estoppel); Ebeid v. Facebook, Inc., No.18-cv-07030-PJH, 2019 WL
2059662, at *3 (N.D. Cal. may 9, 2019) (First Amendment). This Court should follow the majority
rule, but it is ultimately unnecessary to decide unless the Court decides that Plaintiff has otherwise
plausibly alleged a federal constitutional violation against Twitter.
*
*
*
For the reasons addressed in the Motion and herein, the Court should dismiss Plaintiff’s
Complaint with prejudice.
Dated: May 2, 2022
Respectfully submitted,
By:
/s/ Jonathan A. Patchen
Jonathan A. Patchen
Michael Gottlieb
Meryl Conant Governski
Yuhan Alice Chi
WILLKIE FARR & GALLAGHER
LLP
Attorneys for Defendant Twitter, Inc.
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