John Doe; v. Google LLC; Youtube, LLC

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN DOE; et al.,
Plaintiffs-Appellants,
and
DAVID J. HAYES,
Plaintiff,
v.
GOOGLE LLC; YOUTUBE, LLC,
Defendants-Appellees.
No. 21-16934
D.C. No. 5:20-cv-07502-BLF
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Beth Labson Freeman, District Judge, Presiding
Argued and Submitted October 17, 2022
San Francisco, California
Before: McKEOWN, CALLAHAN, and VANDYKE, Circuit Judges.
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
NOV 18 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Appellants challenge the district court’s dismissal of their complaint without
leave to amend. We have jurisdiction under 28 U.S.C. § 1291 and review de novo
a district court’s grant of a motion to dismiss for failure to state a claim under
Federal Rule of Civil Procedure 12(b)(6), “accepting as true all well-pleaded
allegations of material fact and construing those facts in the light most favorable to
the non-moving party.” Ernst & Haas Mgmt. Co., Inc. v. Hiscox, Inc., 23 F.4th
1195, 1199 (9th Cir. 2022) (quoting Judd v. Weinstein, 967 F.3d 952, 955 (9th Cir.
2020)). For the following reasons, we affirm.
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]

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efforts to curb hate and harassment by removing more conspiracy theory content
used to justify real-world violence.” Appellants filed a complaint in the Northern
District of California asserting fourteen breach of contract claims, fourteen breach
of the covenant of good faith and fair dealing claims, and one First Amendment
claim under 42 U.S.C. § 1983.
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.1
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.2
In support of their assertion, Appellants cite seven events involving federal
officials regarding YouTube, Google, or general social media platform moderation
1 Appellants’ complaint also alleged that YouTube’s regulation of content on
its widely used platform constituted the performance of a traditional, exclusive
public function such that its actions were constrained by the Constitution.
However, Appellants have not raised the public function exception on appeal after
its application here was foreclosed by our opinion in Prager University v. Google
LLC, 951 F.3d 991 (9th Cir. 2020).
2 Appellants have conceded that they intended to bring their First Amendment
claims against Google and YouTube under Bivens v. Six Unknown Named Agents
of Federal Bureau of Narcotics, 403 U.S. 388 (1971), which unlike a 42 U.S.C.
§ 1983 claim, allows for a First Amendment claim to be brought against federal
officials.

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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.”
Ruling on Appellees’ Rule 12(b)(6) motion, the district court found that
Appellants’ allegations were insufficient to establish state action and dismissed the

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claim with prejudice, concluding that the issue could not be cured through
amendment. The district court declined to exercise supplemental jurisdiction over
the remaining state contract claims pursuant to 28 U.S.C. § 1367(c). Appellants
filed this timely appeal.
The First Amendment commands that “Congress shall make no law . . .
abridging the freedom of speech.” U.S. Const. amend. I (emphasis added). The
Supreme Court has held that “the Free Speech Clause prohibits only governmental
abridgment of speech. The Free Speech Clause does not prohibit private
abridgment of speech.” Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct.
1921, 1928 (2019). However, Appellants argue that YouTube’s removal of their
content comes within the state-action doctrine and that YouTube can be held liable
for a First Amendment violation, because YouTube was either (1) compelled by
the federal government to remove the content, or (2) so entangled with the federal
government that there is a sufficient nexus between the government’s conduct and
YouTube’s conduct.
1. Compulsion Theory
Under the compulsion theory, a private entity’s conduct may constitute state
action “when the government compels the private entity to take a particular
action.” Halleck, 139 S. Ct. at 1928; see Johnson v. Knowles, 113 F.3d 1114, 1120
(9th Cir. 1997). For a private entity’s conduct to constitute state action, the

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government must have “exercised coercive power or ha[ve] provided such
significant encouragement, either overt or covert, that the choice must in law be
deemed to be that of the [government].” Blum v. Yaretsky, 457 U.S. 991, 1004
(1982).
The government actions alleged in the complaint do not meet this standard.
The antitrust suit against Google and the Senate Committee testimony of certain
CEOs are only tangentially related to YouTube’s content moderation decisions.
Moreover, those events, like the acts that are more specifically directed at
YouTube—for example, Speaker Pelosi’s and Representative Schiff’s comments—
lack force of law, rendering them incapable of coercing YouTube to do much of
anything. Cf. West v. Atkins, 487 U.S. 42, 49–50 (1988) (finding that, in the
context of 42 U.S.C. § 1983, a state actor’s challenged conduct has force of law
when the actor has exercised power possessed by virtue of law and was made
possible only because of their grant of authority by the state). In both their briefing
and at oral argument, Appellants focus on House Resolution 1154, but in addition
to having no force of law, the resolution mentions Google only in passing, and
neither mentions nor asks anything of YouTube. See H.R. Res. 1154, 116th Cong.
(2020). Appellants have not alleged facts that suggest that the government
compelled Appellees’ actions.

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Another fundamental problem with Appellants’ compulsion theory is that
the state-action doctrine only allows plaintiffs to hold the government liable for a
private entity’s conduct and does not support a claim against the private entity
itself. See Halleck, 139 S. Ct. at 1928. Indeed, our precedent precludes such an
inversion of liability. See Sutton v. Providence St. Joseph Med. Ctr., 192 F.3d 826,
838 (9th Cir. 1999) (finding it is the state actor, and not the coerced private party,
that should be held liable for a constitutional violation that arose from the state’s
compulsion). Appellants’ compulsion theory cannot sustain their First
Amendment claim against YouTube and Google. Id. at 838–39.
2. Governmental Nexus
The Appellants’ governmental nexus approach to the state-action doctrine is
also unavailing. “Typically, the nexus has consisted of participation by the state in
an action ostensibly taken by the private entity, through conspiratorial agreement
. . . , official cooperation with the private entity to achieve the private entity’s goal
. . . , or enforcement and ratification of the private entity’s chosen action . . . .”
Sutton, 192 F.3d at 841. “[A]t bottom, the inquiry is always whether the defendant
has exercised power possessed by virtue of state law and made possible only
because the wrongdoer is clothed with the authority of state law.” Pasadena
Republican Club v. W. Justice Ctr., 985 F.3d 1161, 1167 (9th Cir. 2021) (quoting

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Rawson v. Recovery Innovations, Inc., 975 F.3d 742, 747–48 (9th Cir. 2020)), cert.
denied, 142 S. Ct. 347 (2021).
Appellants do not allege that sort of close connection here. In support of
their nexus theory, they focus on the Twitter exchange between Representative
Schiff and YouTube’s CEO. But as the district court explained, an exchange
between an individual member of Congress and YouTube’s CEO about COVID-19
simply does not allege the kind of entanglement between a government entity and
private conduct necessary to support a finding of state action.
Similarly, Speaker Pelosi’s statements and House Resolution 1154 are
insufficient to show that anyone linked to the federal government was “so far
insinuated” or “inextricably intertwined” with YouTube’s content-moderation
decisions that those decisions could be “fairly attributable” to the government.
Pasadena Republican Club, 985 F.3d at 1167–68. Indeed, Appellants have failed
to show any link between the alleged actions by the Speaker and the House and
YouTube’s decision to remove Appellants’ channels. See Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 557 (2007) (“Without more, parallel conduct does not
suggest conspiracy, and a conclusory allegation of agreement at some unidentified
point does not supply facts adequate to show illegality.”).
Even accepting Appellants’ allegations of material fact as true and
construing them in Appellants’ favor, they fail to show the exercise of “power

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possessed by virtue of state law and made possible only because the wrongdoer is
clothed with the authority of state law” necessary for YouTube’s actions to be akin
to state action such that the company might be held liable for a First Amendment
violation. Pasadena Republican Club, 985 F.3d at 1167–68.
3. Bivens
In addition, Appellants’ complaint does not state a Bivens claim. In Bivens,
the Supreme Court determined an individual may sue the federal government for
damages resulting from violations of their constitutional rights, despite the absence
of explicit creation of such a cause of action in either the Constitution or federal
statute. 403 U.S. at 397. Since then, the Supreme Court has narrowed both whom
a Bivens action may be brought against and which constitutional violations may be
the subject of a Bivens action. See Correctional Servs. Corp. v. Malesko, 534 U.S.
61, 71 (2001) (rejecting an extension of Bivens to create a “constitutional tort
remedy” against private entities); see also Egbert v. Boule, 142 S. Ct. 1793, 1799
(2022) (rejecting a First Amendment retaliation claim against a U.S. Border Patrol
agent on the grounds that Congress was better suited to authorize such a damages
remedy).
Combined, Malesko and Egbert foreclose Appellants’ effort to assert a First
Amendment claim against Google and YouTube. The claim is either barred by
Malesko or would appear to expand Bivens contrary to the spirit of Egbert.

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4. Leave to Amend
Finally, Appellants assert that even if the district court properly dismissed
their complaint, they should have been granted leave to amend. Generally, we
review the denial of leave to amend for an abuse of discretion, but the question of
futility of amendment is reviewed de novo. B&G Foods N. Am., Inc. v. Embry, 29
F.4th 527, 534 (9th Cir. 2022). Leave is not appropriate when the amendment
would not save the plaintiff’s lawsuit. Chinatown Neighborhood Ass’n v. Harris,
794 F.3d 1136, 1144 (9th Cir. 2015).
Here, there are no apparent amendments that could provide the facts
necessary to state a claim under the state-action doctrine or justify the expansion of
Bivens to cover their claim. Indeed, Appellants have not proffered any proposed
amendments that suggest otherwise. As an amendment would be futile, the district
court correctly denied leave to amend. See Californians for Renewable Energy v.
Cal. Pub. Utils. Comm’n, 922 F.3d 929, 935 (9th Cir. 2019).
AFFIRMED.

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