IN THE UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF FLORIDA 

FORT PIERCE DIVISION

 CASE NO.: 2:20-cv-14159-RLR 

DJ LINCOLN ENTERPRISES, INC. 

Plaintiff, 

v. 

GOOGLE, LLC, 

Defendant. 

DEFENDANT GOOGLE LLC’S MOTION TO DISMISS COMPLAINT 

AND MEMORDANDUM OF LAW IN SUPPORT THEREOF

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TABLE OF CONTENTS 

Page 

INTRODUCTION......................................................................................................................... 1

FACTUAL ALLEGATIONS ....................................................................................................... 3

LEGAL STANDARD ................................................................................................................... 5

ARGUMENT ................................................................................................................................. 5

I. PLAINTIFF FAILS TO STATE A RICO CLAIM ....................................................... 5

A. Plaintiff Alleges No Distinct RICO “Enterprise” ................................................... 6

B. Plaintiff Fails To Allege That Google Committed A Pattern of Wire Fraud.......... 8

II. PLAINTIFF FAILS TO STATE A CLAIM UNDER FDUTPA ................................ 11

A. Lincoln Lacks Standing Under FDUTPA ............................................................. 11

B. Plaintiff Has Failed To Plead A Deception Claim ................................................ 12

C. Plaintiff Has Failed To Plead An Unfairness Claim ............................................. 14

III. PLAINTIFF FAILS TO STATE A TORTIOUS INTERFERENCE CLAIM .......... 16

IV. THE FIRST AMENDMENT BARS ANY CLAIM SEEKING TO HOLD 

GOOGLE LIABLE FOR ITS EDITORIAL JUDGMENTS IN SEARCH 

RANKING ....................................................................................................................... 18

CONCLUSION ........................................................................................................................... 20

REQUEST FOR HEARING ...................................................................................................... 20

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TABLE OF AUTHORITIES 

Page(s) 

Aldana v. Del Monte Fresh Produce, N.A., Inc., 

416 F.3d 1242 (11th Cir. 2005) ...........................................................................................5

Aldridge v. Lily-Tulip, Inc., 

953 F.2d 587 (11th Cir. 1992) ...........................................................................................11

Almanza v. United Airlines, Inc., 

851 F.3d 1060 (11th Cir. 2017) ...........................................................................................7

Am. United Life Ins. Co. v. Martinez, 

480 F.3d 1043 (11th Cir. 2007) .........................................................................................10

American Dental Ass’n v. Cigna Corp., 

605 F. 3d 1283 (11th Cir. 2010) ..........................................................................................8

Ashcroft v. Iqbal, 

556 U.S. 662 (2009) .......................................................................................................5, 14

Atico Int’l USA, Inc. v. Luv N’ Care, Ltd., 

2009 U.S. Dist. LEXIS 73540 (S.D. Fla. Aug. 19, 2009) ..................................................15

Bell Atl. Corp. v. Twombly, 

550 U.S. 544 (2007) .............................................................................................................5

Brooks v. Blue Cross and Blue Shield of Florida, 

116 F. 3d 1364 (11th Cir. 1997) ..........................................................................................8

Calmes v. BW-PC, L.L.C., 

2018 U.S. Dist. LEXIS 5852 (S.D. Fla. Jan. 12, 2018) (Rosenberg, J.) ..........................6, 9

Cedric Kushner Promotions Ltd. v. King, 

533 U.S. 158 (2001) .............................................................................................................7

Chi. Title Ins. Co. v. Alday-Donalson Title Co. of Fla., 

832 So. 2d 810 (Fla. 2d DCA 2002) ..................................................................................17

Clarke v. West Palm Nissan, LLC, 

2018 U.S. Dist. LEXIS 10450 (S.D. Fla. Jan. 23, 2018) (Rosenberg, J.) ..........................14

Cruz v. FXDirectDealer, LLC, 

720 F.3d 115 (2d Cir. 2013).................................................................................................7

De Cordoba v. Flores, 

2018 U.S. Dist. LEXIS 5285 (S.D. Fla. Jan. 10, 2018) .....................................................11

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Drummond v. Zimmerman, 

2020 U.S. Dist. LEXIS 65234 (S.D. Fla. Apr. 13, 2020) ....................................................9

e-ventures Worldwide, LLC v. Google, Inc., 

2017 U.S. Dist. LEXIS 88650 (M.D. Fla. Feb. 8, 2017) ...............................................2, 19

Ethan Allen Inc. v. Georgetown Manor, Inc., 

647 So. 2d 812 (Fla. 1994).................................................................................................16

FSC Franchise Co., LLC v. Express Corp. Apparel, LLC, 

2009 U.S. Dist. LEXIS 133235 (M.D. Fla. Oct. 2, 2009) .................................................17

Genet Co. v. Annheuser-Busch, Inc., 

498 So. 2d 683 (Fla. 3d DCA 1986) ..................................................................................17

Gibson v. Resort at Paradise Lakes, LLC, 

2017 U.S. Dist. LEXIS 125980 (M.D. Fla. Aug. 9, 2017) ................................................12

Hemi Group, LLC v. City of New York, 

559 U.S. 1 (2010) ...............................................................................................................14

Hennegan Co. v. Arriola, 

855 F. Supp. 2d 1354 (S.D. Fla. 2012) ..............................................................................13

Hirsh v. Silversea Cruises Ltd., 

2015 U.S. Dist. LEXIS 191529 (S.D. Fla. Mar. 5, 2015) (Rosenberg, J.) ........................12

Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 

515 U.S. 557 (1995) ...............................................................................................15, 19, 20

In re Fla. Cement & Concrete Antitrust Litig., 

746 F. Supp. 2d 1291 (S.D. Fla. 2010) ..............................................................................13

INS v. St. Cyr, 

533 U.S. 289 (2001) ...........................................................................................................16

Jackson v. BellSouth Telecomms., 

372 F.3d 1250 (11th Cir. 2004) ...............................................................................6, 10, 11

Katzman v. Victoria’s Secret Catalogue, 

167 F.R.D. 649 (S.D.N.Y. 1996), aff’d, 113 F.3d 1229 (2d Cir. 1997) ...............................6

Kidwell v. Wagoner, 

2010 U.S. Dist. LEXIS 149225 (M.D. Fla. Sep. 10, 2010) .................................................9

Kivisto v. Miller, Canfield, Paddock & Stone, PLC, 

413 F. App’x 136 (11th Cir. 2011) ....................................................................................11

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Kondell v. Blue Cross & Blue Shield of Fla., Inc., 

187 F. Supp. 3d 1348 (S.D. Fla. 2016) (Rosenberg, J.) .......................................................5

La’Tiejira v. Facebook, Inc., 

272 F. Supp. 3d 981 (S.D. Tex. 2017) ...............................................................................18

Langdon v. Google, Inc., 

474 F. Supp. 2d 622 (D. Del. 2007) ...................................................................................18

Langford v. Rite Aid of Ala., Inc., 

231 F.3d 1308 (11th Cir. 2000) .....................................................................................6, 10

Lawrie v. Ginn Dev. Co., LLC, 

656 F. App’x 464 (11th Cir. 2016) ......................................................................................9

Leon v. Tapas & Tintos, Inc., 

51 F. Supp. 3d 1290 (S.D. Fla. 2014) ................................................................................12

Lombardo v. Johnson & Johnson Consumer Cos., 

124 F. Supp. 3d 1283 (S.D. Fla. 2015) ........................................................................11, 13

Marquez v. PanAmerican Bank, 

943 So. 2d 284 (Fla. 3d DCA 2006) ..................................................................................16

McCullough v. Finley, 

907 F.3d 1324 (11th Cir. 2018) ...........................................................................................5

McGuire Oil Co. v. Mapco, Inc., 

958 F.2d 1552 (11th Cir. 1992) .........................................................................................15

McIntyre v. Ohio Elections Comm’n, 

514 U.S. 334 (1995) ...........................................................................................................19

Miami Herald Publ’g Co. v. Tornillo, 

418 U.S. 241 (1974) ...........................................................................................................20

MKT Reps S.A. DE C.V. v. Standard Chtd. Bank Int'l (Americas) Ltd., 

520 F. App’x 951 (11th Cir. 2013) ....................................................................................17

Perret v. Wyndham Vacation Resorts, Inc., 

889 F. Supp. 2d 1333 (S.D. Fla. 2012) ..............................................................................12

PNR, Inc. v. Beacon Prop. Mgmt., Inc., 

842 So. 2d 773 (Fla. 2003)...........................................................................................12, 14

Prager University v. Google LLC, 

951 F.3d 991 (9th Cir. 2020) .............................................................................................13

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Ray v. Spirit Airlines, Inc., 

836 F.3d 1340 (11th Cir. 2016) ...................................................................................1, 6, 7

Register v. Pierce, 

530 So. 2d 990 (Fla. 1st DCA 1988) .................................................................................17

Rockledge Mall Assocs., Ltd. v. Custom Fences of S. Brevard, Inc., 

779 So. 2d 554 (Fla. 5th DCA 2001) .................................................................................17

Roqueta v. Avon Prods., 

2005 U.S. Dist. LEXIS 57643 (S.D. Fla. Aug. 15, 2005) ..................................................12

Sarkis v. Pafford Oil Co., 

697 So. 2d 524 (Fla. 1st DCA 1997) .................................................................................16

Search King, Inc. v. Google Tech., Inc., 

2003 U.S. Dist. LEXIS 27193 (W.D. Okla. May 27, 2003) ..............................................18

Snyder v. Phelps, 

562 U.S. 443 (2013) ...........................................................................................................19

Taft v. Dade Cty. Bar Ass’n, 

2015 U.S. Dist. LEXIS 134798 (S.D. Fla. Oct. 2, 2015) ...................................................12

Taylor v. Trapeze Mgmt., LLC, 

2018 U.S. Dist. LEXIS 50972 (S.D. Fla. Mar. 26, 2018) ..................................................12

Torres-Bonilla v. City of Sweetwater, 

2017 U.S. Dist. LEXIS 6221 (S.D. Fla. Jan. 13, 2017) .......................................................6

Tucci v. Smoothie King Franchises, Inc., 

215 F. Supp. 2d 1295 (M.D. Fla. 2002) .............................................................................17

United States v. Bradley, 

644 F.3d 1213 (11th Cir. 2011) .........................................................................................10

United States v. Cooper, 

132 F.3d 1400 (11th Cir. 1998) .........................................................................................10

United States v. Goldin Indus., 

219 F.3d 1268 (11th Cir. 2000) (en banc) ...........................................................................7

United States v. Takhalov, 

827 F.3d 1307 (11th Cir. 2017) .....................................................................................9, 10

Virgilio v. Ryland Grp., Inc., 

680 F.3d 1329 (11th Cir. 2012) .........................................................................................11

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Zhang v. Baidu.com, Inc., 

10 F. Supp. 3d 433 (S.D.N.Y. 2014)........................................................................3, 18, 19

Zlotnick v. Premier Sales Grp., Inc., 

480 F.3d 1281 (11th Cir. 2007) .........................................................................................13

STATUTES 

18 U.S.C. § 1343 ..........................................................................................................................8, 9

18 U.S.C. § 1962(c) .................................................................................................................4, 5, 7

18 U.S.C. § 1964(c) .........................................................................................................................6

Fla. Stat. Ann. § 501.201 (Florida Deceptive and Unfair Trade Practices Act) .................... passim

Fla. Stat. Ann. § 501.204(1) ...........................................................................................................11

Fla. Stat. Ann. § 501.211(2) ...........................................................................................................13

Fla. Stat. Ann. § 501.212(1) ...........................................................................................................15

Fla. Stat Ann. § 760.08 ..................................................................................................................15

Fla. Stat. Ann. § 772.104(1) .............................................................................................................4

RULES 

Fed. R. Civ. P. 9(b) ................................................................................................................ passim

Fed. R. Civ. P. 12(b)(6)................................................................................................................1, 5

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Pursuant to Fed. R. Civ. P. 12(b)(6), Defendant Google LLC (“Google”) moves to 

dismiss Plaintiff’s Complaint with prejudice and submits this supporting memorandum of law. 

INTRODUCTION 

Plaintiff’s lawsuit rests on a wholly unfounded theory: that Google intentionally demoted 

the search ranking of www.SeniorCare.care—a website about senior living facilities, which has 

no apparent connection to political speech—simply because the site is operated by a business 

that is in turn owned by politically conservative individuals. On this basis, Plaintiff claims that 

Google is running a racketeering enterprise and demands more than $90 million in damages. The 

entire premise of this lawsuit is supported with nothing more than baseless rhetoric, and 

Plaintiff’s legal claims are frivolous. Each claim fails on multiple, independent grounds, even if 

the Complaint’s unfounded factual allegations are taken as true. 

RICO. To begin, Plaintiff has not come close to asserting a viable RICO claim. The 

bedrock requirement of any such claim is the existence of an “enterprise” distinct from the 

defendant itself. Here, Plaintiff has not identified any such enterprise, other than Google and its 

employees. But the Eleventh Circuit has squarely held that “plaintiffs may not plead the 

existence of a RICO enterprise between a corporate defendant and its agents or employees acting 

within the scope of their roles for the corporation.” Ray v. Spirit Airlines, Inc., 836 F.3d 1340, 

1357 (11th Cir. 2016). Beyond that, Plaintiff fails to allege that Google engaged in a pattern of 

racketeering activity. While Plaintiff relies on wire fraud, the Complaint does not remotely offer 

the particularity required by Fed. R. Civ. P. 9(b). Even if it had, Google’s purported deception—

failing to disclose its alleged political bias—simply is not wire fraud because it reflects no 

scheme to obtain something of value from Plaintiff. 

FDUTPA. This claim suffers from a threshold defect: Plaintiff does not have standing to 

bring suit under the Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”) because its 

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claims do not relate to the purchase of any services or products from Google. Beyond that, while 

the premise of Plaintiff’s FDUTPA claim is unclear, it fails no matter how it is understood. 

Plaintiff nods at a deception theory but, in addition to completely disregarding Rule 9(b)’s 

pleading requirements, Plaintiff does not explain how it was harmed by Google’s supposed 

concealment of its alleged anti-conservative bias. Insofar as Plaintiff’s theory is that Google’s 

conduct was “unlawful and unfair” because it “singled Lincoln out for disparate treatment solely 

because of Lincoln’s ideology” (Compl., Dkt. 1, ¶ 82), that claim fails as a matter of law. 

Plaintiff cannot use FDUTPA to assert a political-viewpoint discrimination claim that Florida’s 

actual discrimination laws do not recognize. That is all the more so because Plaintiff’s effort 

would put the statute on a collision course with the First Amendment. This Court must reject 

Plaintiff’s unprecedented effort to expand FDUTPA to regulate core speech. 

Tortious Interference. Plaintiff fails to allege any of the core elements of a tortious 

interference claim under Florida law. The Complaint does not identify any actual contracts or 

specific business relationships that were supposedly disrupted. Nor does Plaintiff make any 

allegation that Google had any knowledge of Plaintiff’s supposed business relationships or acted 

maliciously with the specific intent to harm those relationships. 

First Amendment. Beyond failing on their own terms, Plaintiff’s claims run squarely 

into Google’s constitutional rights. Courts have consistently recognized that the First 

Amendment protects the editorial judgments that search engines make in deciding what to 

include in their search results and how to order those results. See, e.g., e-ventures Worldwide, 

LLC v. Google, Inc., 2017 U.S. Dist. LEXIS 88650, at *11-12 (M.D. Fla. Feb. 8, 2017). This 

principle applies with special force to the allegations here, which are premised on the theory that 

Google “is manipulating Search results because of Darren and Jennifer’s conservative political 

ideology.” Compl. ¶ 53. While that allegation is false, accepting Plaintiff’s premise would mean 

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subjecting Google to liability for making editorial decisions that favor certain political views 

over others—that is, for engaging in core political speech. The First Amendment forbids that 

result. See Zhang v. Baidu.com, Inc., 10 F. Supp. 3d 433, 441 (S.D.N.Y. 2014). It both provides 

an independent basis for dismissing Plaintiff’s claims and underscores that any attempt to fix the 

Complaint’s pervasive pleading problems would be futile. 

FACTUAL ALLEGATIONS 

Plaintiff DJ Lincoln Enterprises, Inc. (“Lincoln”) owns and operates SeniorCare.care, “a 

website that helps people find comprehensive living solutions for seniors and families.” Compl. 

¶ 24. Lincoln, in turn, is owned by conservative Republicans, Darren and Jennifer Lincoln (who 

are not parties to this case). Id. ¶¶ 5, 20. The Complaint alleges that Google “systemically used 

its proprietary algorithms and other devices to de-index websites and manipulate ranking 

(demote websites),” including SeniorCare.care, in search results based on Google’s supposed 

anti-conservative bias. Id. ¶¶ 15, 26, 52-53. According to Plaintiff, “Google discriminated 

against Lincoln because Lincoln is owned and operated by conservative Republicans.” Id. ¶ 15. 

But even as Plaintiff grounds its whole case on the premise that its website was demoted 

because of the political beliefs of its owners, that story makes little sense on its face. Indeed, 

conspicuously missing from Plaintiff’s Complaint is any basis for suggesting that Google even 

knew that the SeniorCare.care website had any connection to anyone holding conservative views. 

There is no allegation that the website itself contained any politically conservative content. Id. 

¶ 24. And the Complaint lacks any allegation that Google knew that the Lincolns were connected 

to the website at all—or even (save for a vague and dubious reference to Darren’s personal 

Twitter accounts (id. ¶ 20)), that Google was aware of the Lincolns’ political views. 

Nevertheless, Plaintiff claims that “Google is manipulating Search results because of 

Darren and Jennifer’s conservative political ideology.” Id. ¶ 53. Plaintiff also alleges that Google 

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committed fraud by wrongfully concealing its purported political biases. See, e.g., id. ¶¶ 15, 18, 

39, 43. But the Complaint does virtually nothing to identify any supposedly false statements or 

omissions that Google made. The only actual statement identified as false or misleading in the 

Complaint is Google’s general mission statement to “organize the world’s information and make 

it universally accessible and useful.” Id. ¶ 34. Plaintiff also references in passing a statement by 

Google’s CEO about whether Google manually intervenes in search results, although Plaintiff 

does not allege the statement is false or misleading. See id. ¶ 52. Beyond those, however, 

Plaintiff only alludes vaguely to various unspecified communications in Google blogs and chat 

rooms in which unidentified “agents of Google” supposedly gave general guidance to Plaintiff 

about search performance. Id. ¶ 54. Plaintiff provides virtually no information about these 

communications, including who was involved, when these conversations occurred, or how 

whatever Google purportedly said was false or misleading. 

In any event, Plaintiff alleges that, between November 2016 and the present, Google has 

decreased the number of pages from Plaintiff’s website in Google’s search index, and has 

lowered the website’s PageRank. Id. ¶¶ 45-46. Lincoln also claims that SeniorCare.care does not 

appear in Google’s search results in response to various generic search queries. Id. ¶¶ 47-50. As 

a result of the website’s alleged drop (or failure to appear) in search ranking, Plaintiff alleges that 

it experiences no traffic to its website and has suffered damages. See id. ¶¶ 51, 59. 

Based on these allegations, Plaintiff now asserts four causes of action: for alleged 

violations of the federal RICO statute, 18 U.S.C. § 1962(c), and its Florida equivalent, Fla. Stat. 

Ann. § 772.104(1); a claim under FDUTPA, Fla. Stat. Ann. § 501.201 et seq.; and a claim under 

Florida law for tortious interference. Id. ¶¶ 66-91. Plaintiff seeks $90 million in damages and an 

order dissolving Google. Id. ¶ 4 & p.37. All of these claims fail as a matter of law. 

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LEGAL STANDARD 

To survive a motion under Rule 12(b)(6), a “plaintiff must plead more than ‘labels and 

conclusions’ or ‘a formulaic recitation of the elements of a cause of action.’” McCullough v. 

Finley, 907 F.3d 1324, 1333 (11th Cir. 2018) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 

555 (2007)). As the Eleventh Circuit has instructed, courts first “identify conclusory allegations 

and then discard them—not ‘on the ground that they are unrealistic or nonsensical’ but because 

their conclusory nature ‘disentitles them to the presumption of truth.’” Id. (quoting Ashcroft v. 

Iqbal, 556 U.S. 662, 681 (2009)); accord Kondell v. Blue Cross & Blue Shield of Fla., Inc., 187 

F. Supp. 3d 1348, 1355 (S.D. Fla. 2016) (Rosenberg, J.) (if a plaintiff’s “allegations are indeed 

more conclusory than factual, then the court does not have to assume their truth”). Having done 

so, the court is then to “assume any remaining factual allegations are true and determine whether 

those factual allegations ‘plausibly give rise to an entitlement to relief.’” Id. (quoting Iqbal, 556 

U.S. at 679). “That is, a complaint must contain factual allegations that are “enough to raise a 

right to relief above the speculative level.” Twombly, 550 U.S. at 555. Neither “bald assertions” 

nor “unwarranted deductions of fact” are sufficient to overcome a motion to dismiss. Aldana v. 

Del Monte Fresh Produce, N.A., Inc., 416 F.3d 1242, 1248 (11th Cir. 2005). In addition to the 

pleading requirements under Rule 12(b)(6), parties alleging fraud must “state with particularity 

the circumstances constituting fraud or mistake.” Fed. R. Civ. P. 9(b). 

ARGUMENT 

I. PLAINTIFF FAILS TO STATE A RICO CLAIM 

RICO makes “it unlawful for any person employed by or associated with any enterprise 

engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or 

participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of 

racketeering activity or collection of unlawful debt.” 18 U.S.C. § 1962(c). The statute authorizes 

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a civil cause of action for any person “injured in his business or property by reason of a 

violation” of RICO. Id. § 1964(c). “To recover, a civil plaintiff must establish that a defendant 

(1) operated or managed (2) an enterprise (3) through a pattern (4) of racketeering activity that 

included at least two racketeering acts.” Ray, 836 F.3d at 1348; accord Langford v. Rite Aid of 

Ala., Inc., 231 F.3d 1308, 1311-12 (11th Cir. 2000). 

As this Court has recognized, “the goal of RICO is to combat organized crime, not to 

police routine commercial dealings.” Calmes v. BW-PC, L.L.C., 2018 U.S. Dist. LEXIS 5852, at 

*17 (S.D. Fla. Jan. 12, 2018) (Rosenberg, J.). Civil RICO is “an unusually potent weapon—the 

litigation equivalent of a thermonuclear device.” Katzman v. Victoria’s Secret Catalogue, 167 

F.R.D. 649, 655 (S.D.N.Y. 1996), aff’d, 113 F.3d 1229 (2d Cir. 1997). It follows that “courts 

should strive to flush out frivolous RICO allegations at an early stage of the litigation.” Id. This 

is precisely such a case. Plaintiff’s federal and state RICO claims are patently implausible and 

they fail for multiple independent reasons.1 

A. Plaintiff Alleges No Distinct RICO “Enterprise” 

To start, Plaintiff utterly fails to allege the core of any RICO claim: the existence of a 

distinct “enterprise” separate from the defendant. “Significantly, to state a civil RICO claim, a 

plaintiff must establish a distinction between the defendant ‘person’ and the ‘enterprise’ itself. 

The Supreme Court has made it crystal clear that the racketeering enterprise and the defendant 

must be two separate entities.” Ray, 836 F.3d at 1355 (citing Cedric Kushner Promotions Ltd. v. 

 

1

 “Because Florida courts often look to the Federal RICO decisions for guidance in 

interpreting and applying the act, the analysis we apply to the plaintiffs’ federal RICO claims is 

equally applicable to their state RICO claims.” Jackson v. BellSouth Telecomms., 372 F.3d 1250, 

1264 (11th Cir. 2004); accord Torres-Bonilla v. City of Sweetwater, 2017 U.S. Dist. LEXIS 

6221, at *29 (S.D. Fla. Jan. 13, 2017). 

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King, 533 U.S. 158, 161-62 (2001)). Simply put, “an enterprise may not simply be a person 

referred to by a different name.” Id. 

Disregarding this bedrock requirement, Plaintiff does not even try to identify any 

purported “enterprise.” Instead, the Complaint asserts without elaboration that “Google 

conducted, operated or managed an associated-in-fact enterprise.” ¶ 67. Plaintiff does not explain 

what this purported “enterprise” was, much less how it operated as an entity separate from 

Google. This is fatal. As a matter of law, Plaintiff cannot advance a RICO claim that seeks to 

treat Google as both the defendant and the enterprise. See Ray, 836 F.3d at 1355; accord United 

States v. Goldin Indus., 219 F.3d 1268, 1271 (11th Cir. 2000) (en banc) (“for the purposes of 18 

U.S.C. § 1962(c), the indictment must name a RICO person distinct from the RICO enterprise”); 

Cruz v. FXDirectDealer, LLC, 720 F.3d 115, 120 (2d Cir. 2013) (“a corporate person cannot 

violate the [RICO] statute by corrupting itself”); accord Almanza v. United Airlines, Inc., 851 

F.3d 1060, 1067, 1074 (11th Cir. 2017) (delineating criteria for a RICO enterprise— including 

“purpose,” “relationships among those associated with the enterprise,” and “longevity”—and 

affirming dismissal of claim for failure to plausibly plead those elements). 

Nor could Plaintiff get around this problem by claiming that the enterprise consists of 

Google working together with its employees, officers, or agents. In Ray, the Eleventh Circuit 

squarely rejected this theory, holding that “in an association-in-fact enterprise, a defendant 

corporation cannot be distinct for RICO purposes from its own officers, agents, and employees 

when those individuals are operating in their official capacities for the corporation.” 836 F.3d at 

1355 (emphasis added); see also id. at 1357 (“We, too, hold that plaintiffs may not plead the 

existence of a RICO enterprise between a corporate defendant and its agents or employees acting 

within the scope of their roles for the corporation because a corporation necessarily acts through 

its agents and employees.”). As the court explained, “permitting plaintiffs to plead an enterprise 

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consisting of a defendant corporation and its officers, agents, and employees acting within the 

scope of their employment would broaden RICO beyond any reasonable constraints” and “turn 

every claim of corporate fraud into a RICO violation.” Id. Plaintiff’s violation of this basic rule 

dooms its RICO claims. 

B. Plaintiff Fails To Allege That Google Committed A Pattern of Wire Fraud 

While the Court need go no further, Plaintiff’s invocation of RICO fails for additional 

reasons. RICO requires a “pattern” of “racketeering activity.” Here, the supposed racketeering 

activity Plaintiff alleges is wire fraud under 18 U.S.C. § 1343. Compl. ¶¶ 2, 67. But Plaintiff’s 

sketchy allegations simply do not state a viable claim that Google committed wire fraud, much 

less a “pattern” of wire fraud. That is so for multiple reasons. 

First, where a RICO claim is based on alleged wire fraud, it is well settled that Rule 9(b) 

applies. See American Dental Ass’n v. Cigna Corp., 605 F. 3d 1283, 1291 (11th Cir. 2010). 

Under this rule, Plaintiff is required to allege, with particularity: “(1) the precise statements, 

documents, or misrepresentations made; (2) the time, place, and person responsible for the 

statement; (3) the content and manner in which these statements misled the Plaintiffs; and (4) 

what the defendants gained by the alleged fraud.’” Id. “This Rule ‘serves an important purpose in 

fraud actions by alerting defendants to the precise misconduct with which they are charged’ and 

protecting defendants ‘against spurious charges of immoral and fraudulent behavior.’” Brooks v. 

Blue Cross and Blue Shield of Florida, 116 F. 3d 1364, 1370-71 (11th Cir. 1997). 

Plaintiff comes nowhere close to meeting this requirement. The sections of the Complaint 

that actually set out the RICO claims (¶¶ 67-70, 72-75) identify no purported wire frauds 

whatsoever, much less satisfy the strict demands of Rule 9(b). Elsewhere, the Complaint refers 

vaguely to unspecified communications “via Google blogs/chat rooms” that Plaintiff allegedly 

had with “Google and its agents” sometime between 2014 and 2019. ¶ 54. But Plaintiffs do not 

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even try to identify: (1) any actual statements that Google supposedly made; (2) when those 

statements were made or who made them; (3) how precisely those statements were misleading; 

or (4) what Google gained by the purported fraud.2 These allegations are woefully deficient. See, 

e.g., Calmes, 2018 U.S. Dist. LEXIS 5852, at *17-18 (holding that “general claims” of fraud “are 

not sufficient to allege a ‘pattern’ of racketeering activity” under RICO); Drummond v. 

Zimmerman, 2020 U.S. Dist. LEXIS 65234, at *13 (S.D. Fla. Apr. 13, 2020) (dismissing RICO 

claims that lacked “any specific descriptions of allegedly fraudulent statements, documents or 

misrepresentations or the specific defendant(s) responsible for them”). 

Second, even if Plaintiff could identify some purportedly misleading statement with 

particularity, there is an even more fundamental problem: as a matter of law, Google’s alleged 

failure to disclose its supposed political biases simply does not amount to wire fraud. The wire 

fraud statute “forbids only schemes to defraud, not schemes to do other wicked things, e.g., 

schemes to lie, trick, or otherwise deceive.” United States v. Takhalov, 827 F.3d 1307, 1311-12 

(11th Cir. 2017); see 18 U.S.C. § 1343 (wire fraud requires a “scheme or artifice to defraud”). As 

the Eleventh Circuit has made clear, this requires intent on the part of the defendant to induce an 

ill-gotten gain: “if a defendant does not intend to harm the victim—‘to obtain, by deceptive 

means, something to which [the defendant] is not entitled’—then he has not intended to defraud 

 

2

 The only other statement that Plaintiff identifies as “false” or “misleading” is a very general 

description of Google’s corporate mission to “organize the world’s information and make it 

universally accessible and useful.” ¶ 34. But not only do Plaintiff’s conclusory allegations still 

fail to satisfy Rule 9(b), this description, as a matter of law, is an example of the kind of nonactionable statement that cannot give rise to a claim of wire fraud. See Lawrie v. Ginn Dev. Co., 

LLC, 656 F. App’x 464, 468 (11th Cir. 2016) (“Fraud requires misrepresentation or concealment 

of a material fact; mere ... sales talk is insufficient to sustain an allegation of mail or wire 

fraud.”); Kidwell v. Wagoner, 2010 U.S. Dist. LEXIS 149225, at *12 (M.D. Fla. Sep. 10, 2010) 

(“GM’s advertisements claiming that their vehicles are ‘built like a rock’ and ‘the most 

dependable, long-lasting trucks’ on the market are ... not actionable and therefore cannot 

constitute fraudulent advertising, wire fraud, or mail fraud.”). 

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the victim.” Takhalov, 827 F.3d at 1312-13 (emphasis added) (quoting United States v. Bradley, 

644 F.3d 1213, 1240 (11th Cir. 2011); accord United States v. Cooper, 132 F.3d 1400, 1404-05 

(11th Cir. 1998) (“the government must establish that the defendant intended to defraud a victim 

of money or property of some value”). Here, however, Plaintiff does not even try to allege that 

Google intended to defraud Lincoln of money or property, much less to obtain anything of value 

from Plaintiff. Nor could it. Plaintiff does not claim that it paid Google anything in connection 

with search results or that Google tried to obtain (or actually received) any monetary benefit 

from its supposed deceptions. Simply put, Plaintiff’s unfounded allegation that Google 

“concealed its institutional bias” (Compl. ¶ 39) does not describe a scheme to defraud. Whatever 

Plaintiff is alleging, it does not reflect any effort to “obtain, by deceptive means, something to 

which [Google] was not entitled.” Takhalov, 827 F.3d at 1313; Bradley, 644 F.3d at 1240.3

Third, Plaintiff fails to plead any plausible “pattern” of wire fraud. “RICO targets 

ongoing criminal activity, rather than sporadic, isolated criminal acts.” Jackson, 372 F.3d at 

1264. Thus, as the Eleventh Circuit has explained: 

a “pattern of racketeering” activity requires proof of something beyond the two 

predicate acts themselves. That something is the threat of continuing racketeering 

activity. The continuity element of a pattern of racketeering activity is crucial to a 

valid RICO claim in order to ensure that the crime alleged is the sort of offense that 

RICO is designed to address—one that is part of a pattern of ongoing, continuing 

criminality or that involves criminality that promises to continue into the future. 

 

3

 Because Plaintiff’s wire fraud theory appears to rest on a claimed fraudulent omission, it 

suffers from a further problem: Plaintiff has not alleged (nor could it) that Google had any duty 

to disclose its supposed political biases. See Am. United Life Ins. Co. v. Martinez, 480 F.3d 1043, 

1065 (11th Cir. 2007) (affirming dismissal of RICO claims because “if the insurers intended to 

assert a claim for fraudulent concealment, or nondisclosure, [under the mail fraud statute] they 

needed to plead that the receivership entities had a duty to disclose”); Langford, 231 F.3d at 1314 

(affirming dismissal of RICO wire fraud claim because “plaintiffs have not alleged any facts that 

would suggest that Rite Aid was subject to a duty to disclose the fact that it charged plaintiffs 

more for their prescription medication than it charged other consumers”). 

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Id. at 1265. Here, Plaintiff gestures toward a theory of “open-ended” continuity (¶¶ 62-65), but it 

fails to meet the basic requirements of that theory. “[O]pen-ended continuity cannot be shown by 

conclusory allegations that once begun, the alleged misconduct threatens to continue into the 

future.” Kivisto v. Miller, Canfield, Paddock & Stone, PLC, 413 F. App’x 136, 138 (11th Cir. 

2011). But that is all Plaintiff offers. Compl. ¶ 63. Plaintiff identifies no other acts of supposed 

wire fraud that Google aimed at any other businesses. Instead, it alludes vaguely to a supposedly 

deceitful and biased “corporate culture” (id.)—exactly the kind of conclusory allegation that has 

repeatedly been found wanting. See Jackson, 372 F.3d at 1268; Aldridge v. Lily-Tulip, Inc., 953 

F.2d 587, 593-94 (11th Cir. 1992); Kivisto, 413 F. App’x at 138; De Cordoba v. Flores, 2018 

U.S. Dist. LEXIS 5285, at *11-12 (S.D. Fla. Jan. 10, 2018). For this reason as well, Plaintiff’s 

RICO claims should be dismissed. 

II. PLAINTIFF FAILS TO STATE A CLAIM UNDER FDUTPA 

FDUTPA prohibits “[u]nfair methods of competition, unconscionable acts or practices, 

and unfair or deceptive acts or practices in the conduct of any trade or commerce.” Fla. Stat. 

Ann. § 501.204(1). In addition to having standing to pursue a claim as a consumer of goods or 

services, “[a] consumer claim under FDUTPA must have three elements: (1) a deceptive act or 

unfair practice; (2) causation; and (3) actual damages.” Lombardo v. Johnson & Johnson 

Consumer Cos., 124 F. Supp. 3d 1283, 1290 (S.D. Fla. 2015) (citing Virgilio v. Ryland Grp., 

Inc., 680 F.3d 1329, 1338 n.25 (11th Cir. 2012)). 

A. Lincoln Lacks Standing Under FDUTPA 

While the Complaint is far from clear, Plaintiff appears to be attempting to allege a claim 

under both the “deceptive” and “unfair” prongs of this statute. Whatever the nature of the claim, 

however, it suffers from a fatal threshold problem: Lincoln does not have standing to sue under 

FDUTPA. “[T]he overwhelming weight of authority” in this Circuit holds that the statute only 

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allows claims by consumers injured in connection with the purchase of goods or services. Taft v. 

Dade Cty. Bar Ass’n, 2015 U.S. Dist. LEXIS 134798, at *9 (S.D. Fla. Oct. 2, 2015) (“FDUTPA 

applies only to a consumer injured by an unfair or deceptive act when buying or purchasing 

goods and services.”); see also Leon v. Tapas & Tintos, Inc., 51 F. Supp. 3d 1290, 1297 (S.D. 

Fla. 2014) (same); Taylor v. Trapeze Mgmt., LLC, 2018 U.S. Dist. LEXIS 50972, at *16-17 (S.D. 

Fla. Mar. 26, 2018) (same); Gibson v. Resort at Paradise Lakes, LLC, 2017 U.S. Dist. LEXIS 

125980, at *14 (M.D. Fla. Aug. 9, 2017) (same). Here, Plaintiff does not (and could not) allege 

that it purchased anything from Google in connection with the unpaid search results Google 

presents to its users, much less that its claims arise from any status as a “consumer” of Google’s 

goods or services. That alone defeats any FDUTPA claim. 

B. Plaintiff Has Failed To Plead A Deception Claim 

But even if Plaintiff could overcome this problem, its claim would still fail. A 

“deceptive” practice under the Act involves “a representation, omission, or practice that is likely 

to mislead the consumer acting reasonably in the circumstances, to the consumer’s detriment.” 

PNR, Inc. v. Beacon Prop. Mgmt., Inc., 842 So. 2d 773, 777 (Fla. 2003). Insofar as Plaintiff 

seeks to advance a FDUTPA claim under this prong, Rule 9(b) applies. See Hirsh v. Silversea 

Cruises Ltd., 2015 U.S. Dist. LEXIS 191529, at *21 (S.D. Fla. Mar. 5, 2015) (Rosenberg, J.). 

But, as discussed above (supra at 8-9), the Complaint does not come close to pleading fraud 

under Rule 9(b)’s strict standards. See, e.g., Roqueta v. Avon Prods., 2005 U.S. Dist. LEXIS 

57643, at *5 (S.D. Fla. Aug. 15, 2005) (dismissing FDUTPA claim for failure to satisfy Rule 

9(b)). Moreover, the only actual statement that the Complaint identifies as false or misleading—

Google’s general mission statement (¶ 34)—is a clear-cut example of the kind of non-actionable 

statement that cannot give rise to a claim under FDUTPA. See Perret v. Wyndham Vacation 

Resorts, Inc., 889 F. Supp. 2d 1333, 1341-42 (S.D. Fla. 2012) (dismissing FDUTPA claim with 

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prejudice because it was based on “nothing more than opinions ... [which] do not constitute 

actionable fraud”); cf. Prager University v. Google LLC, 951 F.3d 991, 1000 (9th Cir. 2020) 

(similar Google mission statements are “impervious to being ‘quantifiable,’ and thus are nonactionable”). As a matter of law, such a statement is not capable of deceiving “a reasonable 

relying consumer.” Zlotnick v. Premier Sales Grp., Inc., 480 F.3d 1281, 1284 (11th Cir. 2007). 

But even apart from Plaintiff’s failure to satisfy Rule 9(b), Plaintiff’s effort to plead a 

deception claim still would fail because the Complaint does not allege any causal link between 

Google’s statements and Lincoln’s purported injuries. “[C]ausation is a necessary element of the 

FDUTPA claim,” and it “‘must be direct, rather than remote or speculative.’” Lombardo, 124 F. 

Supp. 3d 1283 at 1290 (quoting Hennegan Co. v. Arriola, 855 F. Supp. 2d 1354, 1361 (S.D. Fla. 

2012)); see also Fla. Stat. Ann. § 501.211(2) (A “person who has suffered a loss as a result of a 

violation of this part . . . may recover actual damages.” (emphasis added)). The only injuries 

Plaintiff identifies are its website’s loss of business and revenue. Compl. ¶¶ 16, 57-61, 84. But 

these injuries are alleged to have resulted only from Google’s purported demotion or removal of 

the website in search results. Id. ¶ 59. There is no allegation—nor could there be—that Google’s 

statements about its corporate mission (or its CEO’s testimony about whether Google manually 

intervenes on search results) had any causal connection to the business losses that Plaintiff’s 

website purportedly suffered. Instead, Plaintiff’s alleged injuries stem entirely from what Google 

supposedly did, not what it said (or didn’t say). Any suggestion that Google’s statements caused 

Plaintiff’s injuries is wholly conclusory and implausible. See, e.g., In re Fla. Cement & Concrete 

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Antitrust Litig., 746 F. Supp. 2d 1291, 1322 (S.D. Fla. 2010) (quoting Iqbal, 556 U.S. at 678) 

(dismissing FDUTPA claim for failure to plead causation).4 

C. Plaintiff Has Failed To Plead An Unfairness Claim 

Plaintiff’s effort to invoke FDUTPA’s unfairness prong is equally unavailing. An 

“unfair” practice “is one that offends established public policy and one that is immoral, 

unethical, oppressive, unscrupulous or substantially injurious to consumers.” PNR, 842 So. 2d at 

777. Here, Plaintiff alleges that “Google’s treatment of Lincoln was plainly unlawful and unfair, 

as it singled Lincoln out for disparate treatment solely because of Lincoln’s ideology.” Compl. 

¶ 82. This allegation fails. 

To begin, as explained above (supra at 3), there are no plausible allegations that Google 

even knew that the Lincolns are politically conservative, much less allegations that Google was 

aware that the SeniorCare.care website was owned by the Lincolns. Especially given that the 

website itself reflected no conservative ideology, there simply is no factual basis for any claim of 

politically motivated conduct. Cf. Clarke v. West Palm Nissan, LLC, 2018 U.S. Dist. LEXIS 

10450, at *2 (S.D. Fla. Jan. 23, 2018) (Rosenberg, J.) (“Unwarranted deductions of fact in a 

complaint cannot be admitted as true for the purposes of testing the sufficiency of the 

allegations.”). 

Beyond that pleading failure is a legal one. Plaintiff seeks to use FDUTPA to advance an 

entirely novel discrimination claim based on purported political viewpoint. But FDUTPA is not 

an anti-discrimination statute; it is a consumer-protection law. Florida has an anti-discrimination 

 

4

 This same problem—the absence of any meaningful causal connection between Google’s 

purportedly fraudulent statements and Plaintiff’s alleged injury—is yet another reason to dismiss 

Plaintiff’s RICO claims. See Hemi Group, LLC v. City of New York, 559 U.S. 1, 9 (2010) (“to 

state a claim under civil RICO, the plaintiff is required to show that a RICO predicate offense not 

only was a but for cause of his injury, but was the proximate cause as well”).

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law—the Florida Civil Rights Act (“FCRA”), which prohibits discrimination “on the ground of 

race, color, national origin, sex, pregnancy, handicap, familial status, or religion.” Fla. Stat Ann. 

§ 760.08. Absent from this list is discrimination on the basis of political viewpoint. And counsel 

for Google has found no case that has ever applied the FCRA (or FDUTPA for that matter) to 

such discrimination. This Court should reject Plaintiff's unprecedented effort to transform 

FDUTPA into a broad anti-discrimination mandate that Florida has never seen fit to impose 

through its actual anti-discrimination laws. 

That is especially so given that Plaintiff’s novel application of FDUTPA would raise 

serious constitutional issues. It is well established that the First Amendment prohibits courts 

from applying state laws in a way that would compel a speaker to associate with a viewpoint that 

it does not wish to advance. See Hurley v. Irish-American Gay, Lesbian and Bisexual Group of 

Boston, Inc., 515 U.S. 557, 569-70 (1995) (First Amendment barred application of state antidiscrimination law to force parade organizers to include the message of group whose views they 

did not share). As discussed below (infra at 18-20), these principles fully apply to the editorial 

judgments that Google and other search engines make about the search results they show. 

Extending FDUTPA to Plaintiff’s (unfounded) allegations of political viewpoint discrimination 

would put the statute at odds with the First Amendment. Nothing in FDUTPA’s text supports 

that result; to the contrary, the statute expressly provides that it does not apply to any “act or 

practice required or specifically permitted by federal or state law,” Fla. Stat. Ann. § 501.212(1). 

Black-letter law forbids reading the statute in a way that creates such a clear constitutional 

problem. See, e.g., Atico Int’l USA, Inc. v. Luv N’ Care, Ltd., 2009 U.S. Dist. LEXIS 73540, at 

*6 (S.D. Fla. Aug. 19, 2009) (rejecting proposed application of FDUTPA to challenge “prelitigative and litigative activities” because it would threaten First Amendment protections); 

McGuire Oil Co. v. Mapco, Inc., 958 F.2d 1552, 1562 (11th Cir. 1992) (“We will not construe 

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the [Alabama Unfair Trade Practices Act] to treat as unfair trade practices concerted activity that 

is constitutionally protected.”); cf. INS v. St. Cyr, 533 U.S. 289, 300 (2001) (courts are 

“obligated” to construe statutes to avoid “serious constitutional problems”). 

III. PLAINTIFF FAILS TO STATE A TORTIOUS INTERFERENCE CLAIM 

To state a cause of action for tortious interference with a business relationship, a plaintiff 

must allege “1) the existence of a business relationship with another, 2) the defendant’s 

knowledge of that relationship, 3) an intentional and unjustified interference with the relationship 

by the defendant, and 4) that the aggrieved party was damaged as a result of the defendant’s 

interference.” Marquez v. PanAmerican Bank, 943 So. 2d 284, 286 (Fla. 3d DCA 2006). Plaintiff 

does not even attempt a threadbare recitation of these elements, much less pleads facts plausibly 

establishing them. 

First, Plaintiff does not identify any actual contractual or existing business relationships 

that were supposedly disrupted. The Complaint refers to nebulous “contractual relationships with 

various third parties” (¶ 87), but fails to identify a single actual contract that Lincoln had with 

anyone. Accord Sarkis v. Pafford Oil Co., 697 So. 2d 524, 526-27 (Fla. 1st DCA 1997) 

(affirming dismissal of claim where plaintiff failed to allege any interference in plaintiff’s 

business relationships with “identifiable customers”). Likewise, the allegation about Plaintiff’s 

“reasonable expectations of obtaining business from Search” (Compl. ¶ 87) fails as a matter of 

law. Under established Florida law, “no cause of action exists for tortious interference with a 

business’s relationship to the community at large.” Ethan Allen Inc. v. Georgetown Manor, Inc., 

647 So. 2d 812, 815 (Fla. 1994). Thus, a plaintiff “may not recover, in a tortious interference 

with a business relationship tort action, damages where the ‘relationship’ is based on speculation 

regarding future sales to past customers.” Id. Such speculation is precisely what Lincoln offers 

(Compl. ¶¶ 60-61), and it fails to state a claim. 

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Second, Plaintiff does not (and could not) allege a single fact suggesting that Google had 

any knowledge of Lincoln’s contractual relationships. Such knowledge is essential to any 

tortious interference claim, and Plaintiff’s conclusory recital of this element is not sufficient. See, 

e.g., Tucci v. Smoothie King Franchises, Inc., 215 F. Supp. 2d 1295, 1302 (M.D. Fla. 2002) 

(dismissing tortious interference claim for failure to adequately allege defendant’s knowledge of 

a business relationship between plaintiff and a non-party); Register v. Pierce, 530 So. 2d 990, 

993 (Fla. 1st DCA 1988) (same). 

Third, “Florida courts have held that the plaintiff must plead and prove that the defendant 

manifested a specific intent to interfere with the business relationship.” Chi. Title Ins. Co. v. 

Alday-Donalson Title Co. of Fla., 832 So. 2d 810, 814 (Fla. 2d DCA 2002); accord Rockledge 

Mall Assocs., Ltd. v. Custom Fences of S. Brevard, Inc., 779 So. 2d 554, 557 (Fla. 5th DCA 

2001) (explaining that “existence of malice is key to the tort of tortious interference”). Here, 

however, the Complaint offers nothing more than a threadbare recitation. ¶ 88. Plaintiff offers no 

fact that even remotely suggests that Google acted with the specific and malicious intent to harm 

Lincoln’s relationships with third parties. Purported intent to harm Plaintiff’s website is not the 

same as intent to disrupt Plaintiff’s relationships with third parties. See, e.g., MKT Reps S.A. 

DE C.V. v. Standard Chtd. Bank Int'l (Americas) Ltd., 520 F. App’x 951, 954-55 (11th Cir. 

2013) (affirming dismissal of tortious interference claim because “[a]lthough [defendant] 

intended to freeze [plaintiff’s bank] account, there is no evidence that it intended to interfere with 

any of [plaintiff’s] business relationships”).5

 

5

 Indeed, Florida law is clear that taking protective measures to ensure the integrity of one’s 

service or business cannot give rise to a tortious interference claim. See Genet Co. v. AnnheuserBusch, Inc., 498 So. 2d 683, 684 (Fla. 3d DCA 1986); FSC Franchise Co., LLC v. Express Corp. 

Apparel, LLC, 2009 U.S. Dist. LEXIS 133235, at *12 (M.D. Fla. Oct. 2, 2009). As such, 

Lincoln’s allegation that Google acted to promote its own abstract political interest or ideology 

cannot create the kind of malice needed for tortious interference. 

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IV. THE FIRST AMENDMENT BARS ANY CLAIM SEEKING TO HOLD GOOGLE 

LIABLE FOR ITS EDITORIAL JUDGMENTS IN SEARCH RANKING 

While the Court need go no further to dismiss Plaintiff’s claims, there is another fatal 

problem with this case. The whole predicate of Plaintiff’s lawsuit—that Google should be held 

liable for supposedly altering its search results because of Darren and Jennifer Lincoln’s 

conservative political ideology (Compl. ¶ 53)—is one that the First Amendment bars. This 

bedrock protection both provides an independent basis for dismissing Plaintiff’s claims with 

prejudice and rules out any amendment that might try to address the pleading deficiencies 

discussed above. 

It is firmly established that “online publishers have a First Amendment right to distribute 

others’ speech and exercise editorial control on their platforms.” La’Tiejira v. Facebook, Inc., 

272 F. Supp. 3d 981, 991-92 (S.D. Tex. 2017). Applying this principle, courts have repeatedly 

held that the First Amendment bars claims seeking to hold search engines liable for their 

editorial judgments about what websites to include in their search results and how to rank the 

sites that appear. See Zhang, 10 F. Supp. 3d at 441 (First Amendment barred claims against 

search engine for excluding websites from search results); Langdon v. Google, Inc., 474 F. Supp. 

2d 622, 629-30 (D. Del. 2007) (First Amendment required dismissal of claim seeking to compel 

Google to “honestly” rank plaintiff’s websites); Search King, Inc. v. Google Tech., Inc., 2003 

U.S. Dist. LEXIS 27193, at *3-4, *10-12 (W.D. Okla. May 27, 2003) (First Amendment barred 

claims that Google “maliciously” demoted plaintiff’s website in search results). As the Middle 

District of Florida explained in e-ventures: 

Google’s actions in formulating rankings for its search engine and in determining 

whether certain websites are contrary to Google’s guidelines and thereby subject 

to removal are the same as decisions by a newspaper editor regarding which 

content to publish, which article belongs on the front page, and which article is 

unworthy of publication. The First Amendment protects these decisions, whether 

they are fair or unfair, or motivated by profit or altruism. 

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2017 U.S. Dist. LEXIS 88650, at *11-12 (First Amendment barred claims challenging exclusion 

of plaintiff’s website from Google search results). 

While (as e-ventures makes clear) Google’s editorial decisions about the selection of its 

search results are broadly protected by the First Amendment, this case—which involves claims 

of politically motivated search ranking—is especially straightforward. Plaintiff’s theory is that 

Google demoted or excluded the SeniorCare.care website from search results “because Lincoln 

is owned and operated by conservative Republicans.” Compl. ¶ 15; see also id. ¶ 53. While that 

assertion is false, accepting it here only underscores that Plaintiff seeks to hold Google liable for 

supposedly making judgments about political matters that lie at the heart of the First 

Amendment. See, e.g., Snyder v. Phelps, 562 U.S. 443 (2013) (“speech on public issues occupies 

the highest rung of the hierarchy of First Amendment values”); McIntyre v. Ohio Elections 

Comm’n, 514 U.S. 334, 347 (1995) (“advocacy of a politically controversial viewpoint” is “the 

essence of First Amendment expression”). 

Indeed, this case, as pleaded, is virtually identical to Zhang. Plaintiffs there sued a search 

engine (Baidu) for censoring websites with political viewpoints (such as those supporting the 

Chinese democracy movement) that the search engine disagreed with. The court categorically 

rejected those claims: “allowing Plaintiffs to sue Baidu for what are in essence editorial 

judgments about which political ideas to promote would run afoul of the First Amendment.” 

10 F. Supp. 3d at 435. As the court explained, the plaintiffs sought to hold Baidu liable for 

a conscious decision to design its search-engine algorithms to favor certain 

expression on core political subjects over other expression on those same political 

subjects. To allow such a suit to proceed would plainly “violate[] the fundamental 

rule of protection under the First Amendment, that a speaker has the autonomy to 

choose the content of his own message.” 

Id. at 440 (quoting Hurley, 515 U.S. at 573). Taking Plaintiffs’ allegations as true, the same logic 

bars the claims here. Because “the choice of a speaker not to propound a particular point of 

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view” is “presumed to lie beyond the government’s power to control,” Hurley, 515 U.S. at 575, 

Plaintiff’s efforts to override Google’s editorial judgments and to force Google to include 

Lincoln’s website in search results are barred by the First Amendment. Accord Miami Herald 

Publ’g Co. v. Tornillo, 418 U.S. 241, 257 (1974) (“Government-enforced right of access 

inescapably dampens the vigor and limits the variety of public debate” and “fails to clear the 

barriers of the First Amendment because of its intrusion into the function of editors”). 

CONCLUSION 

For these reasons, Plaintiff’s Complaint should be dismissed. And because any 

amendment would be futile, dismissal should be with prejudice. 

REQUEST FOR HEARING

Pursuant to Local Rule 7.1(b)(2), Google respectfully requests oral argument on the 

foregoing motion to dismiss. Google requests a hearing on the motion because oral argument 

would assist the Court in understanding why Plaintiff’s allegations fail to state a claim. In 

addition, oral argument would assist the Court in understanding why the First Amendment bars 

any claim seeking to hold Google liable for its editorial judgments in its search ranking, and 

therefore why amendment of the Complaint would be futile. Undersigned counsel estimates that 

60 minutes of oral argument will be sufficient. 

Dated: July 6, 2020 Respectfully submitted, 

 /s/ Nathan M. Berman 

 NATHAN M. BERMAN 

 Florida Bar No.: 0329230 

 Email: nberman@zuckerman.com 

ZUCKERMAN SPAEDER LLP 

101 E. Kennedy Blvd., Suite 1200 

Tampa, Florida 33602 

Telephone: (813) 221-1010 

Facsimile: (813) 223-7961 

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BRIAN M. WILLEN (pro hac vice pending) 

Email: bwillen@wsgr.com 

ALEXANDER S. ZBROZEK (pro hac vice pending) 

Email: azbrozek@wsgr.com 

WILSON SONSINI GOODRICH & ROSATI, P.C. 

1301 Avenue of the Americas 

New York, NY 10019 

Telephone: (212) 999-5800 

Facsimile: (212) 999-5899 

LAUREN GALLO WHITE (pro hac vice pending) 

Email: lwhite@wsgr.com 

WILSON SONSINI GOODRICH & ROSATI, P.C. 

650 Page Mill Road 

Palo Alto, CA 94304 

Telephone: (650) 493-9300 

Facsimile: (650) 565-5100 

Attorneys for Defendant 

GOOGLE LLC

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CERTIFICATE OF SERVICE 

 WE HEREBY CERTIFY that on July 6, 2020, a true and correct copy of the foregoing 

was electronically filed with the Clerk of the Court by using the CM/ECF system, which will 

send a notice of electronic filing to all counsel of record. 

/s/ Nathan M. Berman 

Nathan M. Berman 

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