432 F.Supp.3d 1107
N.D. Cal.2020Background
- FAN (Federal Agency of News), a Russian news entity, maintained a Facebook page and alleges Facebook disabled its account and content on April 3, 2018 as part of removals tied to accounts allegedly controlled by the IRA/Project Lakhta.
- FAC alleges some personnel/building connections between FAN and entities implicated in U.S. investigations but denies direct involvement in Project Lakhta; FBI and Special Counsel materials referenced in FAC.
- Plaintiffs sued Facebook asserting: (1) a Bivens First Amendment claim; (2) Unruh Act damages; (3) breach of contract; (4–5) breach of implied covenant of good faith and fair dealing. Plaintiffs amended after an earlier dismissal.
- Facebook moved to dismiss the FAC on Section 230 and state-action grounds; the court previously dismissed claims without prejudice and warned failure to cure would lead to dismissal with prejudice.
- The court held Section 230 bars Plaintiffs’ non-constitutional claims and that the First Amendment/Bivens claim fails because Facebook is not a state actor (no public-forum, no joint action/conspiracy). All claims dismissed with prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Section 230 immunity for non-constitutional claims | Section 230 should not shield Facebook because the case concerns political speech and Facebook ‘‘creates/manipulates’’ content via data mining/recommendations | Facebook is an interactive computer service; FAN supplied the removed content; Section 230 immunizes publisher decisions to remove third‑party content | Section 230 applies; counts II–V dismissed with prejudice |
| Applicability of First Amendment/Bivens | Facebook must follow First Amendment because it operates a public forum and worked with government (state action) | First Amendment constrains government actors; Facebook is private and not a state actor | Bivens claim dismissed with prejudice |
| Public-forum / public-function test | Facebook is a public forum open to the public and performs governmental functions online | Hosting speech and regulating a private platform are not traditionally/exclusively governmental functions | Facebook is not a public forum; public-function test fails |
| Joint action / conspiracy (state action) | Facebook coordinated and shared info with government; partnership/joint efforts show joint action or conspiracy | Supplying information and cooperating with government does not alone create joint action; FAC lacks meeting-of-minds facts tied to the April 2018 removal | No joint action or conspiracy shown; state-action theory fails |
Key Cases Cited
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (establishes plausibility pleading standard)
- Ashcroft v. Iqbal, 556 U.S. 662 (applies plausibility standard and distinguishes legal conclusions)
- Fair Hous. Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157 (en banc) (Section 230 immunizes removal/editorial decisions)
- Barnes v. Yahoo!, Inc., 570 F.3d 1096 (publication includes deciding to publish or withdraw third‑party content)
- Carafano v. Metrosplash.com, Inc., 339 F.3d 1119 (interactive service immunity unless defendant materially contributes to content)
- Dyroff v. Ultimate Software Grp., Inc., 934 F.3d 1093 (recommendation/algorithm functions do not create third‑party content)
- Force v. Facebook, Inc., 934 F.3d 53 (similar principle limiting creation/development for § 230 purposes)
- Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921 (hosting others’ speech is not a traditional, exclusive public function)
- Tsao v. Desert Palace, Inc., 698 F.3d 1128 (sets out state-action tests, including public-function and joint-action)
- Brunette v. Humane Soc’y of Ventura Cty., 294 F.3d 1205 (examples of traditionally exclusive governmental functions)
- Lloyd Corp. v. Tanner, 407 U.S. 551 (private property does not become public forum merely by opening to public)