Doe v. Google LLC

• Court: District Court, N.D. California
• Decided: October 19, 2021
• Docket: 5:20-cv-07502
• Status: Unknown

Opinion

1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 SAN JOSE DIVISION 6 7 JOHN DOE, et al., Case No. 20-cv-07502-BLF

8 Plaintiffs, ORDER GRANTING MOTION TO 9 v. DISMISS

10 GOOGLE LLC, et al., [Re: ECF No. 40] 11 Defendants.

12 13 Before the Court is Defendants’ motion to dismiss Plaintiffs’ first amended complaint, which 14 alleges a First Amendment violation and breach of contract and the duty of good faith and fair 15 dealing based on Defendants’ suspension of Plaintiffs’ YouTube accounts on October 15, 2020. 16 ECF No. 30 (“FAC”) at 1. Plaintiffs are “conservative content creators” who post videos on 17 YouTube pursuant to the YouTube Terms of Service. Id. at 1, ¶ 4. Defendants own and operate 18 YouTube. 19 Having considered the parties’ briefs, the Court GRANTS Defendants’ motion to dismiss 20 Plaintiffs’ First Amendment claim WITH PREJUDICE. With Plaintiffs’ only federal claim 21 dismissed, the Court DECLINES to extend supplemental jurisdiction to Plaintiffs’ state law claims. 22 I. BACKGROUND 23 The factual background and procedural history of this case is substantially set forth in the 24 Court’s November 3, 2020 order denying Plaintiffs’ application for a temporary restraining order. 25 ECF No. 27 at 1-4. On November 17, 2020, Plaintiffs filed an amended complaint. See FAC. On 26 April 7, 2021, Defendants filed a motion to dismiss the first amended complaint. See ECF No. 40 27 (“Mot.”). On May 19, 2021, Plaintiffs filed an opposition. See ECF No. 43 (“Opp.”). On 1 granted the parties’ stipulation to submit the motion without hearing. See ECF No. 46. 2 II. LEGAL STANDARD 3 “A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a 4 claim upon which relief can be granted ‘tests the legal sufficiency of a claim.’” Conservation Force 5 v. Salazar, 646 F.3d 1240, 1241-42 (9th Cir. 2011) (quoting Navarro v. Block, 250 F.3d 729, 732 6 (9th Cir. 2001)). In this inquiry, the Court accepts as true all well-pled factual allegations and 7 construes them in the light most favorable to the plaintiff. Reese v. BP Exploration (Alaska) Inc., 8 643 F.3d 681, 690 (9th Cir. 2011). However, the Court needs not accept as true “allegations that 9 are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” In re Gilead 10 Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008) (internal quotation marks and citations 11 omitted). While a complaint is not required to contain detailed factual allegations, it “must contain 12 sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” 13 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 14 (2007)). A claim is facially plausible when it “allows the court to draw the reasonable inference 15 that the defendant is liable for the misconduct alleged.” Ashcroft, 556 U.S. at 678. On a motion to 16 dismiss, the Court’s review is limited to the face of the complaint and matters judicially noticeable. 17 MGIC Indem. Corp. v. Weisman, 803 F.2d 500, 504 (9th Cir. 1986); N. Star Int’l v. Ariz. Corp. 18 Comm’n, 720 F.2d 578, 581 (9th Cir. 1983). 19 III. DISCUSSION 20 A. First Amendment 21 Plaintiffs assert that Defendants have deprived them of their First Amendment rights by 22 suspending their YouTube accounts.1 FAC ¶¶ 302-19. Defendants argue that Plaintiffs fail to plead 23 24 1 Plaintiffs appear to bring their First Amendment claim under § 1983. FAC ¶ 45. Claims for 25 violations of constitutional rights by federal government actors must be brought based on Bivens— 26 not § 1983. Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 27 (1971). If this were the only deficit in Plaintiffs’ First Amendment claim, then the Court would 1 sufficient facts to plausibly allege state action, because Defendants are private companies. 2 Mot. at 7-12. Plaintiffs argue that they have pled sufficient facts to plausibly allege state action 3 under any of four theories: (1) public function, (2) compulsion, (3) joint action, and 4 (4) governmental nexus. Opp. at 8-15; FAC ¶¶ 44, 302-19. Plaintiffs allege that there is state action 5 here because of the actions of federal officials, including Rep. Adam Schiff, Speaker of the House 6 Nancy Pelosi, the U.S. House of Representatives, the U.S. Senate, and others. FAC ¶¶ 31-43. 7 To plead that a private defendant is liable for deprivation of constitutional rights, a plaintiff 8 must plead facts sufficient to plausibly allege that the conduct constituted state action.2 Gorenc v. 9 Salt River Project Agr. Imp. & Power Dist., 869 F.2d 503, 505 (9th Cir. 1989), cert. denied, 493 10 U.S. 899 (1989). The Supreme Court has articulated four approaches to the state action question: 11 (1) public function, (2) state compulsion, (3) governmental nexus, and (4) joint action. George v. 12 Pacific-CSC Work Furlough, 91 F.3d 1227, 1230 (9th Cir. 1996). The Supreme Court has not 13 indicated whether these approaches are merely factors or independent tests. Id. 14 i. Public Function 15 In their complaint, Plaintiffs assert state action based on a public function theory. FAC, 16 ¶ 307. Defendants argue that the Ninth Circuit’s decision in the Prager case “precludes 17 constitutional scrutiny of YouTube’s content moderation.” Mot. at 7 (citing Prager Univ. v. Google 18 LLC, 951 F.3d 991, 999 (9th Cir. 2020)). In Plaintiffs’ opposition, they appear to drop any assertion 19 of a public function theory, and instead seem to concede that this theory is foreclosed by Prager. 20 Opp. at 9-11 (“Plaintiffs allege that Defendants’ censorship satisfies either the governmental nexus 21 test or the joint action test.”); id. at 18 (“Prager was premised on a state action theory that the Ninth 22 Circuit did not adopt – the platform as a public function theory.”) 23 To the extent Plaintiffs are still asserting state action under a public function theory, the 24 Court finds that this theory is indeed foreclosed by Prager. For there to be state action under a 25 26 construes Plaintiffs’ First Amendment claim as a Bivens claim throughout this order. 27 2 While a Bivens claim is based on actions of the federal government, the Court will refer to “state 1 public function theory, a private entity must exercise “powers traditionally exclusively reserved to 2 the State.” Manhattan Community Access Corp. v. Halleck, 139 S.Ct. 1921, 1924 (2019) (quoting 3 Jackson v. Metropolitan Edison Co., 419 U.S. 345, 352 (2019)). Plaintiffs assert that “YouTube 4 performs an exclusively and traditionally public function by regulating free speech within a public 5 forum.” FAC ¶ 307. In Prager, the Ninth Circuit ruled that “YouTube…does not conduct a 6 quintessential public function through regulation of speech on a public forum.” 951 F.3d at 998. 7 Accordingly, Plaintiffs have not pled sufficient facts to support state action under a plausible public 8 function theory. 9 ii. Compulsion 10 Plaintiffs argue that they have adequately pled that Defendants’ alleged conduct was state 11 action under a compulsion theory. Opp. at 8-10. Plaintiffs’ First Amended Complaint cites 12 statements by U.S. Rep. Adam Schiff and Speaker of the House Nancy Pelosi and an October 2020 13 House Resolution, which “have pressed Big Tech” into censoring political speech with threats of 14 limiting Section 230 of the Communications Decency Act (“CDA”) and other penalties. 15 Opp. at 8-10, 15; FAC at 31-43. Defendants argue that Plaintiffs have failed to allege sufficient 16 facts to plausibly plead compulsion, because they have failed to plead that government actors 17 commanded a particular result in Plaintiffs’ specific cases or point to statements with any actual 18 legal force. Mot. at 8-12. Further, Defendants argue that Plaintiffs’ compulsion theory is foreclosed 19 by the Ninth Circuit’s decision in Sutton v. Providence St. Joseph Medical Center, which held that 20 “something more” is required for a compulsion claim against a private party. 192 F.3d 826, 838-39 21 (9th Cir. 1999); Mot. at 7-12. In response, Plaintiffs argue that they have adequately pled the 22 “something more” element required by Sutton by alleging that Defendants and the state were jointly 23 pursuing an unconstitutional end. Opp. at 10. Specifically, Plaintiffs point to public statements 24 regarding a “partnership” between Defendants and federal lawmakers. Id. 25 For a private party’s conduct to constitute state action under a compulsion theory, it must 26 involve “such significant encouragement, either overt or covert, that the choice must in law be 27 deemed to be that of the State.” Blum v. Yaretsky, 457 U.S. 991, 1004-1005 (1982). To plead such 1 participated in, his specific case.” Heineke v. Santa Clara Univ., 965 F.3d 1009, 1014 (9th Cir. 2 2020). Plaintiffs must point to a “state regulation or custom having the force of law that compelled, 3 coerced, or encouraged” the alleged private conduct. Johnson v. Knowles, 113 F.3d 1114, 1120 4 (9th Cir. 1997). Further, a compulsion claim against a private party requires pleading “some 5 additional nexus that [makes] it fair to deem the private entity a governmental actor in the 6 circumstances.” Sutton, 192 F.3d at 839. 7 The Court finds that the statements by federal lawmakers Plaintiffs point to are insufficient 8 to plead that the government “commanded a particular result in, or otherwise participated in, 9 [Plaintiffs’] specific case.” Heineke, 965 F.3d at 1014; see also Daniels v. Alphabet, No. 20-cv- 10 04687-VKD, 2021 WL 1222166, at *6 (N.D. Cal. Mar. 31, 2021). Plaintiffs point to generalized 11 statements from lawmakers pertaining to “coronavirus-related misinformation,” “disinformation 12 proliferating online,” “QAnon-related speech,” and “conspiracy theories.” FAC, ¶¶ 31-43; id., 13 Ex. F. None of the statements mention Plaintiffs’ names, their YouTube or Google accounts, their 14 channels, or their videos. Plaintiffs argue that state actors “commanded a particular result” in their 15 case because “Plaintiffs have alleged that Congress demanded that the unpopular speech dubbed 16 ‘misinformation,’ and QAnon-related speech be limited and erased, which is precisely what 17 Plaintiffs allege Defendants did.” Opp. at 11. The Court disagrees that broad lawmaker 18 proclamations regarding “misinformation” or “QAnon-related speech,” for example, are sufficient 19 to show that the government “commanded” the suspension of Plaintiffs’ accounts. Even if 20 Defendants had complied with these lawmaker statements to the letter, they would still have had the 21 ultimate discretion on what videos or accounts fit into buckets like “misinformation” or “QAnon- 22 related speech.” 23 The Court also disagrees with Plaintiffs that they have alleged sufficient facts about the 24 content of their videos to link their removal to the broad categories of online content mentioned in 25 the lawmakers’ statements. For example, Plaintiffs plead no facts to indicate that their videos 26 pertained to COVID-19, so none of the statements from members of Congress relating to COVID-19 27 misinformation have any relevance to Defendants’ alleged conduct. See, e.g., FAC ¶ 8. Further, 1 Plaintiffs posted about these subjects, or only some of them. Id. And none of the lawmaker 2 statements Plaintiffs cite contain clear action items relevant to Plaintiffs’ allegations. Id. ¶ 32 3 (encouraging YouTube to “display messages to any users who have engaged with harmful 4 coronavirus-related misinformation”); id. ¶ 34 (generally discussing “misconduct” related to “the 5 division and the disinformation proliferating online”); id., Ex. F at 81 (encouraging action on the 6 part of the FBI, intelligence community, and “all Americans”). 7 Plaintiffs claim that Defendants’ conduct is state action because it was in response to the 8 threat of various government penalties—the repeal of CDA Section 230 protections, “show trials” 9 in front of the U.S. Senate, and a DOJ antitrust suit against Google—allegedly linked to whether 10 Defendants appropriately moderated certain types of content. Opp. at 1, 15; FAC ¶¶ 10, 32. The 11 threats of penalties Plaintiffs point to are insufficient to convert private conduct into state action 12 here. The Ninth Circuit has found that pleading “a private actor’s conduct is subject to 13 penalties…is…insufficient to convert private action into that of the state.” Heineke, 965 F.3d at 14 1014. Moreover, Plaintiffs fail to point to any penalties that necessarily or even likely would have 15 followed if Defendants did not suspend their accounts. See, e.g., FAC ¶ 10 (citing a DOJ antitrust 16 case against Google with no alleged relationship to content moderation decisions); id. ¶ 34 17 (discussing generally that “social media executives…will be held accountable for [their] 18 misconduct”); id. ¶ 33 (discussing removal of CDA Section 230 protections without any clear action 19 item or ultimatum); Opp. at 12-13 (citing cases related to congressional subpoena and investigation 20 powers). These speculative “threats” to Defendants do not plausibly constitute “state regulation or 21 custom having the force of law.” Johnson, 113 F.3d at 1120. 22 Plaintiffs can point to no authority to support a compulsion theory of state action based on 23 penalties, particularly “threats” as speculative as the ones they point to here. See, e.g., Abu-Jamal 24 v. Nat’l. P. Radio, No. CIV. A. 96-0594, 1997 WL 527349, at *6 (D.D.C. Aug. 21, 1997) (pressure 25 from individual members of Congress did not bring about state action because “not one of these 26 people has any legal control over [defendant’s] actions.”); Daniels, 2021 WL 1222166, at *6 27 (“[S]peculative assertions about the possibility defendants will be subpoenaed to testify before 1 do not support a theory of government action.”) Courts have declined to find state action even 2 where government penalties are far less speculative than what Plaintiffs allege, like where a law or 3 regulation tied to state funding applies. Blum, 457 U.S. at 1010 (“[P]enalties imposed for violating 4 the regulations add nothing to respondents’ claim of state action.”); Heineke, 965 F.3d at 1013-14; 5 Jackson v. Metro. Edison Co., 419 U.S. 345, 350 (1974) (“The mere fact that a business is subject 6 to state regulation does not by itself convert its action into that of the State[.]”); see also Halleck, 7 139 S. Ct. at 1928 (“Put simply, being regulated by the State does not make one a state actor.”) 8 Here, no law or regulation applies—in fact, the main “threat” Plaintiffs allege is the repeal of a law 9 (Section 230 of the CDA). Opp. at 3-5; FAC ¶¶ 10, 33. 10 Plaintiffs argue that the Court should decline to dismiss their compulsion claim here because 11 “Plaintiffs’ theory—that Speaker Nancy Pelosi and Rep. Adam Schiff coerced, substantially 12 encouraged, and threatened Defendants to remove the type of speech that Plaintiffs express—is 13 novel.” Opp. at 9. Defendants respond that Plaintiffs’ compulsion argument is “outlandish” and 14 contrary to settled law. Rep. at 1. The Court finds that whether Plaintiffs’ theory is novel or not,3 15 it is not supported by law, as outlined above. 16 The Court also finds that Plaintiffs have not pled facts sufficient to plausibly allege the 17 “something more” element required for a compulsion claim against a private defendant under 18 Sutton. 192 F.3d at 838-41. Plaintiffs claim that they have pled facts that Defendants and the 19 government “were jointly pursuing an unconstitutional end.” Opp. at 10 (citing Sutton, 192 F.3d at 20 840). But Plaintiffs rely primarily on a Twitter exchange between Rep. Schiff and YouTube CEO 21 Susan Wojnicki that has no alleged relevance to Plaintiffs’ content, since it pertains to COVID-19 22 misinformation. Id. Moreover, as discussed below, Plaintiffs have failed to allege facts sufficient 23 to plead that Defendants were engaged in joint action with the government. 24 The Court finds that Plaintiffs have failed to allege either (1) compulsion or (2) the 25 26 3 The Court notes that the plaintiff in Daniels pointed to the same statements by individual 27 lawmakers in Plaintiffs’ complaint to support his theory of state action, which the court rejected. 1 “something more” element necessary to bring a compulsion claim against a private actor under 2 Sutton. 3 iii. Joint Action 4 Plaintiffs assert that there is state action under a joint action theory, pointing to a Twitter 5 exchange between Rep. Schiff and YouTube CEO Susan Wojnicki in which Ms. Wojnicki states, 6 “We appreciate your partnership and will continue to consult with Members of Congress as we 7 address the evolving issues around #COVID19.” FAC, Ex. E at 1; Opp. at 10-15. Plaintiffs argue 8 that this Twitter exchange shows Defendants and the federal government were in an “admitted 9 partnership.” Opp. at 13. Defendants argue that Plaintiffs fall short of plausibly pleading joint 10 action in light of the case law. Rep. at 5-7. 11 Joint action is present where the government has “so far insinuated itself into a position of 12 interdependence with [a private entity] that it must be recognized as a joint participant in the 13 challenged activity.” Gorenc v. Salt River Project Agr. Imp. and Power Dist., 869 F.2d 503, 507 14 (9th Cir. 1989) (quoting Burton v. Wilmington Parking Authority, 365 U.S. 715, 725 (1961)). 15 Further, a private defendant must be a “willful participant in joint action with the state or its agents.” 16 Dennis v. Sparks, 449 U.S. 24, 27 (1980). Joint action requires a “substantial degree of cooperative 17 action” between private and public actors. Collins v. Womancare, 878 F.2d 1145, 1154 (9th Cir. 18 1989). 19 As a threshold matter, the Schiff-Wojnicki Twitter exchange Plaintiffs point to in support of 20 their joint action claim clearly pertains to misinformation regarding COVID-19. FAC, Ex. E at 1. 21 As the Court discussed above, Plaintiffs have failed to allege any facts indicating that their posts 22 pertained to COVID-19. Accordingly, it is unclear how this Twitter exchange supports a joint action 23 theory pertaining to the suspension of Plaintiffs’ channels. Since the Twitter exchange appears to 24 be the fact Plaintiffs primarily rely on to allege joint action, Plaintiffs’ failure to plead the relevance 25 of this fact renders their joint action claim essentially unsupported. Further, it is simply implausible 26 to read a casual Twitter exchange between one member of Congress and YouTube’s CEO as joint 27 action. Plaintiffs’ theory would effectively cause companies to cease communicating with their 1 Further, Plaintiffs’ allegations fail to plausibly plead a “substantial degree of cooperative 2 action” between Defendants and the government. Collins, 878 F.2d at 1154. Based on Plaintiffs’ 3 allegations, their content was removed through the following series of events: federal lawmakers 4 publicly flagged general categories of content for Defendants to consider moderating and issued 5 threats to compel Defendants to comply, Defendants independently chose what content fit into the 6 lawmakers’ general categories, and Plaintiffs’ channels happened to be some of the content 7 Defendants decided to remove. See, e.g., FAC ¶ 10. Courts have dismissed cases for lack of state 8 action despite significantly more alleged cooperation between public and private actors compared 9 to what Plaintiffs allege here. Pinhas v. Summit Health, Ltd., 894 F.2d 1024, 1034 (9th Cir. 1989) 10 (affirming dismissal for lack of state action in decision by private hospital pursuant to review process 11 approved by state); Heineke, 965 F.3d at 1013-15 (affirming dismissal for lack of state action where 12 private actor “receives federal and state funds…conditioned on compliance with federal and state 13 anti-discrimination laws and regulations”); Abu-Jamal, 1997 WL 527349, at *5 (no plausible joint 14 action at pleading stage where defendant is alleged to have a “close relationship” with the 15 government); Jackson v. Metropolitan Edison Co., 419 U.S. 345, 357-58 (1974) (affirming 16 dismissal for lack of state action where defendant “was a heavily regulated, privately owned 17 utility”); see also Daniels, 2021 WL 1222166, at **6-7; George, 91 F.3d at 1231 (affirming 18 dismissal for lack of state action where plaintiff and state were “acting in and as part of a conspiracy 19 and scheme”); Blum, 457 U.S. at 1010-11 (no state action with “state subsidization of the operating 20 and capital costs of the [private] facilities, payment of the medical expenses of more than 90% of 21 the patients in the facilities, and the licensing of the facilities by the State”). 22 The cases Plaintiffs cite also indicate that far more is necessary to plead joint action than 23 what they have alleged here. Plaintiffs cite US v. Price, Opp. at 11, which involved a scheme 24 between state officers and private citizens where “[s]tate officers participated in every phase of the 25 alleged venture: the release from jail, the interception, assault and murder. It was a joint activity, 26 from start to finish.” 383 U.S. 787, 795 (1966). Plaintiffs have failed to plead anything close to the 27 Price scheme. Ms. Wojnicki’s tweet about “partnership” and “continu[ing] to consult with 1 Plaintiffs’ suspension. FAC ¶ 21. At most, Plaintiffs appear to allege that government officials 2 identified categories of information Defendants should consider removing—there is no allegation 3 that government officials were in the room or somehow directly involved in the decision to suspend 4 Plaintiffs. Further, Plaintiffs cite Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982). Opp. at 11. 5 In that case, the Supreme Court found joint action where a private party “invok[ed] the aid of state 6 officials to take advantage of state-created attachment procedures.” Lugar, 457 U.S. at 942. In the 7 present case, there are no allegations that Defendants invoked state or federal procedure to bring 8 about the suspension of Plaintiffs’ accounts. Defendants merely suspended Plaintiffs from 9 Defendants own private platform. Plaintiffs also cite to the Collins and Brunette v. Humane Soc’y 10 of Ventura Cty. cases, even though the Ninth Circuit did not find joint action in either case. Collins, 11 878 F.2d at 1154-56; Brunette, 294 F.3d 1205, 1210-14 (9th Cir. 2002). 12 Accordingly, the Court finds that Plaintiffs have failed to allege facts sufficient to plead state 13 action under a joint action theory. 14 iv. Governmental Nexus 15 Plaintiffs assert that they have pled facts sufficient to support that Defendants’ alleged 16 conduct was state action under a governmental nexus theory. Opp. at 10-15. Defendants argue that 17 any sufficiently close nexus between Defendants and government officials is missing from 18 Plaintiffs’ pleadings. Rep. at 2. 19 State action under a governmental nexus theory requires there to be “such a close nexus 20 between the State and the challenged action that the seemingly private behavior may be fairly treated 21 as that of the State itself.” Kirtley v. Rainey, 326 F.3d 1088, 1094-95 (9th Cir. 2003). “The purpose 22 of this requirement is to assure that constitutional standards are invoked only when it can be said 23 that the State is responsible for the specific conduct of which plaintiff complains.” Blum, 457 U.S. 24 at 1004-1005. 25 Plaintiffs appear to raise the same arguments and plead the same facts to support their joint 26 action and governmental nexus theories. Opp. at 10-15; FAC ¶¶ 34. Further, the Ninth Circuit has 27 analyzed the joint action and governmental nexus theories in tandem. See, e.g., Rawson v. Recovery 1 above analysis finding Plaintiffs’ joint action theory insufficiently pled, Plaintiffs have also failed 2 to alleged state action under a governmental nexus theory. Further, the Court notes that Plaintiffs 3 have failed to point to a single case in which governmental nexus was found. And as outlined above, 4 courts have found no state action in cases where public officials were substantially more involved 5 in private conduct than Defendants allegedly were in the present case. George, 91 F.3d at 1231 6 (finding plaintiff “failed to plead a nexus” where “[t]he contract between the County and [private 7 defendant] does show that the County regulates [defendant’s] employees to some degree.”); Blum, 8 457 U.S. at 1010-12; see also Daniels, 2021 WL 1222166, at *7. Accordingly, the Court finds that 9 Plaintiffs have failed to plead state action under a plausible governmental nexus theory. 10 Based on the inapplicability of any of the four state action tests outlined by the Supreme 11 Court, George, 91 F.3d at 1230, the Court finds that Plaintiffs have failed to plead a proper First 12 Amendment claim due to their failure to sufficiently allege that Defendants’ conduct constituted 13 state action. 14 B. State Law Claims 15 Plaintiffs also assert state law claims for breach of contract and the duty of good faith and 16 fair dealing. Plaintiffs assert that the Court has supplemental jurisdiction over these claims under 17 28 U.S.C. § 1367, pendent to the First Amendment claim. FAC ¶ 46. Plaintiffs do not assert that 18 this court has subject matter jurisdiction over their state law claims based on diversity jurisdiction, 19 id., and it appears that they cannot do so due to lack of diversity. Id. ¶¶ 48, 50. With the First 20 Amendment claim dismissed with prejudice, there is a question as to whether this Court should 21 exercise supplemental jurisdiction over the state law claims. 22 A federal court’s exercise of supplemental jurisdiction is governed by 28 U.S.C. § 1367. 23 Section 1367(a) provides that “in any civil action of which the district courts have original 24 jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so 25 related to claims in the action within such original jurisdiction that they form part of the same case 26 or controversy under Article III of the United States Constitution.” 28 U.S.C. § 1367(a). A district 27 court may, in its discretion, decline to exercise supplemental jurisdiction over a state law claim 1 issue of State law, (2) the claim substantially predominates over the claim or claims over which the 2 district court has original jurisdiction, (3) the district court has dismissed all claims over which it 3 has original jurisdiction, or (4) in exceptional circumstances, there are other compelling reasons for 4 declining jurisdiction.” 28 U.S.C. § 1367(c). 5 “[E]xercising discretion and deciding whether to decline, or to retain, supplemental 6 jurisdiction over state law claims when any factor in subdivision (c) is implicated is a responsibility 7 that district courts are duty-bound to take seriously.” Acri v. Varian Assocs., Inc., 114 F.3d 999, 8 1001 (9th Cir. 1997). The district court’s decision is informed by the “values of economy, 9 convenience, fairness, and comity” articulated by the United States Supreme Court in United Mine 10 Workers v. Gibbs, 383 U.S. 715 (1966). Acri, 114 F.3d at 1001 (internal quotation marks and 11 citation omitted). Where subject matter jurisdiction is based on federal question jurisdiction, the 12 Ninth Circuit has held that “[i]n the usual case in which all federal-law claims are eliminated before 13 trial, the balance of factors to be considered under the pendent jurisdiction doctrine – judicial 14 economy, convenience, fairness, and comity – will point toward declining to exercise jurisdiction 15 over the remaining state-law claims.” Sanford v. MemberWorks, Inc., 625 F.3d 550, 561 (9th Cir. 16 2010) (internal quotation marks, citation, and alteration omitted). 17 The Court finds that the facts do not favor the Court exercising supplemental jurisdiction 18 over the state law claims in this case. The Court has only preliminarily considered the merits of 19 Plaintiffs’ state law claims in considering Plaintiffs’ application for a temporary restraining order, 20 ECF No. 27, so there is little judicial economy that would be hindered by dismissing these claims. 21 Plaintiffs’ state law claims are hereby DISMISSED WITHOUT PREJUDICE. 22 C. Section 230 23 Defendants argue that to the extent Plaintiffs have stated a viable claim, Defendants would 24 be protected from liability by Section 230 of the CDA. Mot. at 17-20. Since the Court has dismissed 25 Plaintiffs’ federal claim and declined to exercise supplemental jurisdiction over Plaintiffs’ state law 26 claims, the Court declines to consider the applicability of Section 230 to Defendants’ alleged 27 conduct. D. Leave to Amend While leave to amend generally is granted liberally, the Court has discretion to dismiss a claim without leave to amend if amendment would be futile. Manzarek v. St. Paul Fire & Marine ° Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008); Rivera v. BAC Home Loans Servicing, L.P., 756 F. Supp. 2d 1193, 1197 (N.D. Cal. 2010) (citing Dumas v. Kipp, 90 F.3d 386, 393 (9th Cir. ° 1996)). The Court finds that amendment would be futile as to Plaintiffs’ First Amendment claim, so ° that claim is DISMISSED WITH PREJUDICE. For Plaintiffs’ state law claims, the Court has ’ declined supplemental jurisdiction because the only federal claim has been dismissed from the case. IV. ORDER ° For the foregoing reasons, IT IS HEREBY ORDERED that: (1) Plaintiffs’ First Amendment claim is DISMISSED WITH PREJUDICE. A separate " judgment will issue, and the Clerk shall close the file. (2) The Court DECLINES to exercise supplemental jurisdiction for Plaintiffs’ state law 4 claims. Those claims are DISMISSED WITHOUT PREJUDICE to refiling in state court.

Z Dated: October 19, 2021 kom Lh ham ty)

3 17 BETH LABSON FREEMAN 8 United States District Judge 19 20 21 22 23 24 25 26 27 28