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American Freedom Defense Initiative v. Lynch

United States District Court, District of Columbia

November 9, 2016

LORETTA LYNCH, in her official capacity as ATTORNEY GENERAL OF THE UNITED STATES, Defendant.



         Facebook, 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.

         I. Background

         As it 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.

         Facebook, 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.

         Pursuant 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.

         At 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.

         These 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.

         Yet 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. at 24.

         Defendant 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 first.

         II. Legal Standard

         In 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)).

         To 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).

         III. ...

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