United States District Court, District of Columbia
E. BOASBERG UNITED STATES DISTRICT JUDGE
YouTube, and Twitter may be host to a mélange of cat
videos, musings from long-lost cousins, and odes to
Beyoncé, but not all content is welcome on these
social-media platforms. Pursuant to their private terms of
service, the companies have repeatedly taken down some of
Plaintiffs' posts criticizing Islam. Plaintiffs - two
non-profit organizations and their leaders - allege that such
action constitutes censorship and discrimination on the basis
of content, viewpoint, and religion. Yet a quick glance at
this case's caption reveals a surprise: Plaintiffs have
not named the companies as Defendants. Instead, they have
sued only the United States Attorney General, alleging that a
provision in a federal statute - § 230 of the
Communications Decency Act - enables the companies'
censorship and discrimination and violates the First
Amendment. Defendant now moves to dismiss, arguing that
Plaintiffs can neither establish standing nor state a
cognizable constitutional claim. Agreeing that standing is
lacking here, the Court will grant the Motion.
must at this stage, the Court considers the facts as pled in
the Complaint. Plaintiffs are two non-profit organizations -
American Freedom Defense Initiative and Jihad Watch - and two
of their leaders - Pamela Geller and Robert Spencer.
“AFDI is dedicated to freedom of speech, freedom of
conscience, freedom of religion, and individual
rights.” Compl., ¶ 6. Jihad Watch has a similar
orientation and, in particular, “is dedicated to
exposing the truth, including the motives and goals, of
Islamic jihadists.” Id., ¶ 18. Geller,
AFDI's president, has authored The Post-American
Presidency: The Obama Administration's War on
America and Stop the Islamization of America: A
Practical Guide to the Resistance. Id., ¶
12. Spencer, AFDI's vice president and the director of
Jihad Watch, has authored, among other books, The Truth
About Muhammad and The Politically Incorrect Guide
to Islam (and the Crusades). Id., ¶ 17.
Plaintiffs actively use social media to share their religious
and political views and to promote their related non-profit
and commercial work. Id., ¶¶ 6-26.
Thousands of individuals have “liked”
Plaintiffs' Facebook pages, followed them on Twitter, and
subscribed to their YouTube channels. Id.,
¶¶ 13-14, 16-17, 21-22, 25-26.
Twitter, and YouTube maintain publicly available policies
that prohibit third-party users like Plaintiffs from posting
certain content on their sites. Id., ¶¶
95-96, 98, 100, 103-09, 117, 119. Facebook, for example,
according to a “Warning” included in
Plaintiffs' Complaint, does not allow “groups that
are hateful, threatening, or obscene, ” and
“take[s] down groups that attack an individual or
group.” Id., ¶ 87. YouTube prohibits,
among other things, “hateful content.”
Id., ¶ 100. And Twitter bans “the
promotion of hate content, sensitive topics, and violence
globally, ” “[o]ffensive, vulgar, abusive or
obscene content, ” and “[i]nflammatory content
which is likely to evoke a strong negative reaction or cause
harm.” Id., ¶¶ 105, 108.
to these policies, the three social-media platforms have, at
various points, removed Plaintiffs' content from their
sites. In March 2016, for example, Facebook removed from
Geller's “Islamic Jew-Hatred: It's In the
Quran” page a photograph of an individual holding a
sign reading “Death to All Juice [sic]”
at an anti-Israel rally in New York City. Id.,
¶¶ 79-82. Facebook also removed from Geller's
“Stop Islamization of America” page a photograph
depicting graffiti reading “Kill the Jews” and
“Jihad Against Israel” and directed Geller to
review Facebook's Community Standards and remove anything
on her page that was not compliant. Id.,
¶¶ 85-86. A few months later, Facebook removed
“Stop Islamization of America” entirely,
explaining that the page violated the company's Terms of
Use. Id., ¶ 87. YouTube also removed one of
Geller's videos, which featured “a first-hand
undercover investigation” in a Nashville mosque.
Id., ¶ 102.
times, conversely, Plaintiffs sought to invoke the
companies' policies to have other users'
content removed, but those efforts were unsuccessful. Twitter
and Facebook “profess a policy of protecting
intellectual property, ” id., ¶¶
117, 119, but determined that a group's use of the name
“American Jihad Watch” did not infringe on
Plaintiff Jihad Watch's trademark and so permitted its
continued use. Id., ¶¶ 118, 120. The two
social-media companies also declined to remove tweets and
posts that contained threats against Spencer, including that
he should be “shot” and “lynched.”
Id., ¶¶ 121-24.
and other actions led Plaintiffs to conclude that Facebook,
YouTube, and Twitter employ their company policies to
suppress the speech and activities of disfavored speakers,
including Plaintiffs, and to discriminate against
“certain political parties, national origins, and
religions, ” particularly Israelis, Jews, and
conservatives. Id., ¶¶ 93, 95, 126.
Plaintiffs have not brought this suit against the
social-media companies. Instead, in July 2016, they named the
United States Attorney General as the lone Defendant. They
did so because they blame a provision in a federal statute -
§ 230 of the Communications Decency Act - for enabling
the companies' policies and the discriminatory actions
taken pursuant to those policies. Id., ¶¶
97, 99, 111, 125. Plaintiffs allege that § 230 of the
CDA, both facially and as applied, violates the First
Amendment because it is a content- and viewpoint-based
restriction; is vague, overbroad, and lacking in objective
criteria; and permits Facebook, Twitter, and YouTube
“to engage in government-sanctioned discrimination that
would otherwise violate California Civil Code § 51,
” which prohibits discrimination by all business
establishments in California, and Article I, section 2 of the
California Constitution, which protects the freedom of
speech. Id., ¶¶ 128-41. Plaintiffs seek a
declaration that § 230 violates the First Amendment and
a preliminary and permanent injunction prohibiting the
Attorney General from enforcing the provision. Id.
now moves to dismiss the case on two grounds: (1) Plaintiffs
cannot establish the causation and redressability elements
necessary for Article III standing, and (2) they cannot
identify any state action that implicates the First Amendment
and thus fail to state a cognizable constitutional claim.
See Mot. at 1-2. The Court need only analyze the
evaluating Defendant's Motion to Dismiss, the Court must
“treat the complaint's factual allegations as true
and must grant plaintiff the benefit of all inferences that
can be derived from the facts alleged.” Sparrow v.
United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir.
2000) (internal quotation marks and citation omitted);
see also Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). This standard governs the Court's considerations
of Defendant's contentions under both Federal Rules of
Civil Procedure 12(b)(1) and 12(b)(6). See Scheuer v.
Rhodes, 416 U.S. 232, 236 (1974), abrogated on other
grounds by Harlow v. Fitzgerald, 457 U.S. 800 (1982)
(“[I]n passing on a motion to dismiss, whether on the
ground of lack of jurisdiction over the subject matter or for
failure to state a cause of action, the allegations of the
complaint should be construed favorably to the
pleader.”). The Court need not accept as true, however,
“a legal conclusion couched as a factual allegation,
” nor an inference unsupported by the facts set forth
in the Complaint. Trudeau v. Fed. Trade Comm'n,
456 F.3d 178, 193 (D.C. Cir. 2006) (quoting Papasan v.
Allain, 478 U.S. 265, 286 (1986)).
survive a motion to dismiss under Rule 12(b)(1), Plaintiffs
bear the burden of proving that the Court has subject-matter
jurisdiction to hear their claims. See DaimlerChrysler
Corp. v. Cuno, 547 U.S. 332, 342 & n.3 (2006);
Arpaio v. Obama, 797 F.3d 11, 19 (D.C. Cir. 2015). A
court has an “affirmative obligation to ensure that it
is acting within the scope of its jurisdictional
authority.” Grand Lodge of Fraternal Order of
Police v. Ashcroft, 185 F.Supp.2d 9, 13 (D.D.C. 2001).
For this reason, “‘Plaintiff[s'] factual
allegations in the complaint . . . will bear closer scrutiny
in resolving a 12(b)(1) motion' than in resolving a
12(b)(6) motion for failure to state a claim.”
Id. at 13-14 (quoting 5A Charles A. Wright &
Arthur R. Miller, Federal Practice and Procedure
§ 1350 (2d ed. 1987)). Additionally, unlike with a
motion to dismiss under Rule 12(b)(6), the Court “may
consider materials outside the pleadings in deciding whether
to grant a motion to dismiss for lack of jurisdiction.”
Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249,
1253 (D.C. Cir. 2005).