656 F.Supp.3d 1018
N.D. Cal.2023Background
- Plaintiffs (Stark and Oostyen) sued Patreon under the Video Privacy Protection Act (VPPA) and California consumer-protection laws, alleging Patreon transmitted users’ video titles and Facebook IDs to Meta via Facebook’s Pixel without proper VPPA-compliant consent.
- Plaintiffs allege they regularly viewed prerecorded videos on Patreon, paid subscriptions, and were logged into Facebook on the same devices; they say Patreon never obtained the statutorily required standalone written consent and that Patreon’s posted policies did not disclose the Pixel practice.
- Patreon moved to dismiss, arguing the VPPA is facially unconstitutional under the First Amendment (content-based/overbroad) and that Plaintiffs’ CLRA and UCL (fraud prong) claims fail Rule 9(b) because Plaintiffs did not plead they read or relied on the allegedly misleading policies.
- The United States intervened to defend the VPPA; Plaintiffs argued the statute regulates commercial speech and survives intermediate scrutiny and/or strict scrutiny.
- The Court denied Patreon’s motion to dismiss the VPPA claim as premature because a facial overbreadth challenge requires a developed factual record comparing the statute’s legitimate commercial sweep to hypothetical noncommercial applications. The Court granted dismissal of the CLRA and UCL (fraud) claims for failure to plead actual review/reliance, with leave to amend.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the VPPA is a content-based restriction subject to strict scrutiny | VPPA protects private video-viewing info; statute targets privacy not speech and primarily regulates commercial disclosures | VPPA is content-based and overbroad because it singles out video-viewing information and has unconstitutional applications | Court: VPPA is content-based but that alone doesn't resolve the case; facial overbreadth review required and is premature on pleadings; denial of motion to dismiss without prejudice |
| Whether Patreon’s alleged disclosures are commercial speech (affecting level of scrutiny) | VPPA-regulated disclosures are commercial and thus subject to intermediate scrutiny | Patreon: disclosures do not propose commercial transactions and thus are not commercial speech | Court: Patreon’s alleged Pixel transfers are commercial speech under Ninth Circuit guidance (Bolger/Ariix factors); VPPA’s regulation of similar commercial disclosures would survive intermediate scrutiny for purposes of this motion |
| Whether the VPPA is facially overbroad because it could reach noncommercial speech | Plaintiffs and U.S.: most real-world applications will be commercial; hypotheticals unlikely | Patreon: many plausible noncommercial applications (clerks, reporters, private conversations, law-enforcement requests) show substantial unconstitutional sweep | Court: VPPA does implicate noncommercial speech; facial overbreadth analysis is required but cannot be resolved on the current record; dismissal denied without prejudice to reassert on a developed factual record |
| Whether Plaintiffs pleaded CLRA and UCL (fraud) claims with required particularity under Rule 9(b) | Plaintiffs: omission-based theory; prior order found duty to disclose plausibly alleged | Patreon: Plaintiffs did not allege they read or relied on the challenged policies; pleadings lack the who/what/when required by Rule 9(b) | Court: Plaintiffs failed to allege they viewed or relied on Patreon’s terms/policies; CLRA and UCL (fraud) claims dismissed with leave to amend to plead review/reliance and particulars |
Key Cases Cited
- Reed v. Town of Gilbert, 576 U.S. 155 (content-based speech restrictions trigger strict scrutiny)
- Cent. Hudson Gas & Electric Corp. v. Public Serv. Comm'n, 447 U.S. 557 (intermediate-scrutiny test for commercial speech)
- Ariix, LLC v. NutriSearch Corp., 985 F.3d 1107 (9th Cir.: holistic, fact-driven commercial-speech analysis and use of Bolger factors)
- IMDb.com, Inc. v. Becerra, 962 F.3d 1111 (9th Cir.: laws singling out particular content are content-based)
- Boelter v. Hearst Commc'ns, Inc., 192 F. Supp. 3d 427 (S.D.N.Y.) (upholding analogous Michigan statute as regulation of commercial disclosure)
- Boelter v. Advance Magazine Publishers Inc., 210 F. Supp. 3d 579 (S.D.N.Y.) (S.D.N.Y. declined facial overbreadth resolution on limited record; upheld as-applied)
- United States v. Stevens, 559 U.S. 460 (facial overbreadth standards)
- Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60 (commercial-speech factors)
- Kearns v. Ford Motor Co., 567 F.3d 1120 (9th Cir.: Rule 9(b) pleading particularity for fraud/omission claims)