1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

AMERICAN FREEDOM DEFENSE INITIATIVE, et al. , Plaintiffs,

v. Civil Action No. 16-1437 (JEB) LORETTA LYNCH, in her official capacity as ATTORNEY GENERAL OF THE UNITED STATES,
Defendant.

MEMORANDUM OPINION Facebook, YouTube, and Twitter may be host to a mélange of cat videos, musings from long-lost cousins, and odes to B eyoncé, but not all content is welcome on these social-media platforms. Pursuant to their private terms of service, the com panies have repeatedly taken down some of Plaintiffs’ posts critic izing Islam. Plaintiffs — two non-profit organizations and their leaders — allege that such action constitutes censorship and di scrimination on the basis of content, viewpoint, and religi on. Yet a quick glance at this c ase’s caption revea ls a surprise: Plaintiffs have not named the com panies as Defendants. Instead , they have sued only the United States Attorney General, allegi ng that a provision in a federal statute — § 230 of the Communications Decency Act — enables the companies’ censorship and discrimination and violates the First Amendment. D efendant now moves to dismiss, arguing that Plaintiffs can neither establish standing nor state a cognizable constitutiona l claim. Agreeing that standing is lacking here, the Court will grant the Motion.2 I. Background As it must at this stage, the Court considers the facts as ple d in the Complaint. Plaintiffs are two non-profit organizations — A merican Freedom Defense Ini tiative and Jihad Watch — and two of their leaders — Pamel a Geller and Robert Spencer. “ AFDI is dedicated to freedom of speech, freedom of conscience, f reedom of religion, and individ ual rights.” Compl., ¶ 6. Jihad Watch has a similar orientati on and, in particular, “is dedicat ed to exposing the truth, including the motives and goals, of Islami c jihadists.” Id., ¶ 18. Gell er, AFDI’s president, has authored The Post-American Presidency: The Obama Administration’s War on America and Stop the Islamization of America: A Prac tical Guide to the Resistance. Id., ¶ 12. Spencer, AFDI’s vice president and the director of Jih ad Watch, has authored, among other books, The Truth About Muhammad and The Politically Inc orrect Guide to Islam (and the Crusades). Id., ¶ 17. Plaintiffs actively use social media to sha re their religious and politica l views and to prom ote their related non-profit and commercial work. Id., ¶¶ 6-26. Thousands of in dividuals have “liked” Plaintiffs’ Facebook pages, followed them on Twitter, and subscribed to the ir YouTube channels. Id., ¶¶ 13-14, 16-17, 21-22, 25-26. Facebook, Twitter, and YouTube m aintain publicly available pol icies that prohibit thirdparty users like Plaintiffs fro m posting certain content on the ir 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 indiv idual or group.” Id., ¶ 87. YouTub e prohibits, among other things, “hateful content.” Id., ¶ 100. And Twitter bans “the promotio n of hate content, sensitive topics, and violence globally,” “[o]ffe nsive, vulgar, abusive or obscen e content,” and “[i]nflammatory content which is likely to e voke a strong negative reaction or cause harm.” Id., ¶¶ 105, 108.3 Pursuant to these policies, the three social-media platforms h ave, at various points, removed Plaintiffs’ content from their sites. In March 2016, f or example, Facebook removed from Geller’s “Islamic Jew-Hatre d: It’s In the Quran” page a ph otograph of an individual holding a sign reading “Death to All Juice [ sic ]” at an anti-Israel ra lly in New York City. Id., ¶¶ 79-82. Facebook also removed from Geller’s “Stop Islamizati on of America” page a photograph depicting graffiti reading “Kill the Jews” and “Jiha d Against Israel” and directed Geller to review Facebook’s Commu nity Standards and remove anyt hing on her page that was not compliant. Id., ¶¶ 85-86. A few months later, Facebook re moved “Stop Islamization of America” entirely, explaining that the page violated the compan y’s Terms of Use. Id., ¶ 87. YouTube also removed one of Gelle r’s videos, which featured “a first-hand undercover investigation” in a Nas hville mosque. Id., ¶ 102. At times, conversely, Plaintiffs sought to invoke the companie s’ policies to have other users’ content removed, but those efforts were unsuccessful. T witter and Facebook “profess[] a policy of protecting intellect ual property,” id., ¶¶ 117, 119, but determined that a group’s use of the name “American Jihad Watch ” did not infringe on Plaintiff J ihad 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 cont ained threats against Spencer, including that he should be “shot” and “lynched.” Id., ¶¶ 121-24. These and other actions led Plain tiffs to conclude that Faceboo k, YouTube, and Twitter employ their company policies to suppress the speech and activi ties of disfavored speakers, including Plaintiffs, and to discri minate against “certain poli tical parties, national origins, and religions,” particularly Isr aelis, Jews, and conservatives. Id ., ¶¶ 93, 95, 126.4 Yet Plaintiffs have not brought this suit against the social-me dia companies. Instead, in July 2016, they named the United State s 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’ po licies and the discriminatory a ctions 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 obj ective criteria; and permit s Facebook, Twitter, and YouTube “to engage in government-sanctio ned discrimination that would o therwise violate California Civil Code § 51,” which prohibi ts discrimination by all busines s establishments in California, and Article I, section 2 of the Ca lifornia Constitution, which protects the freedom of speech. Id., ¶¶ 128-41. Plaintiffs seek a decl aration that § 230 violates t he First Amendment and a preliminary and permanent injunc tion prohibiting t he Attorney G eneral from enforcing the provision. Id. at 24. Defendant now moves to dismiss the case on two grounds: (1) Pl aintiffs cannot establish the causation and redressability elements necessary for Article III standing, and (2) they cannot identify any state action that im plicates the First Amendment a nd thus fail to state a cognizable constitutional claim. See Mot . at 1-2. The Court need only an alyze the first. II. Legal Standard In evaluating Defendant’s Moti on to Dismiss, the Court must “tr eat the complaint’s factual allegations as true and m ust grant plaintiff the benefi t of all inferences that can be derived from the facts alleged.” Sparrow v. United Air Lines, Inc., 21 6 F.3d 1111, 1113 (D.C. Cir. 2000) (internal quotation marks and cit ation omitted); see also Ashcr oft v. Iqbal, 556 U.S. 662, 678 (2009). This standard governs the Court’s considerations of De fendant’s contentions under both5 Federal Rules of Civil Proce dure 12(b)(1) a nd 12(b)(6). See Sc heuer v. Rhodes, 416 U.S. 232, 236 (1974), abrogated on other gr ounds by Harlow v. Fitzgerald, 457 U.S. 800 (1982) (“[I]n passing on a motion to dismiss, w hether on the ground of lack o f jurisdiction over the subject matter or for failure to state a cause of action, the allegatio ns of the complaint should be construed favorably to the plead er.”). The Court need not acce pt as true, however, “a legal conclusion couched as a factual allegation,” nor an inference u nsupported 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-matte r jurisdiction to hear their cl aims. See DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 & n.3 (2006); Ar paio v. Obama, 797 F.3d 11, 19 (D.C. Cir. 2015). A court has an “affirmative oblig ation to ensure th at it is actin g within the scope of its jurisdictional authority.” Grand Lodge of Frate rnal Order of Police v. Ashcro ft, 185 F. Supp. 2d 9, 13 (D.D.C. 2001). For this reason, “‘Plainti ff[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 C harles A. Wright & Arthur R. Miller, Federa l Practice and Procedure § 1350 (2d ed. 1987)). Additionally, unlike with a m otion to dismiss under Rule 12(b)(6), the Court “may consider materials outside the pleadin gs in deciding whether to grant a motion to dismiss for lack of jurisdiction.” Jerome Stevens Ph arms., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005). III. Analysis As the Court may only act when it has subject-ma tter jurisdicti on, it begins with Defendant’s standing argument. A rticle III of the United State s Constitution limits the6 jurisdiction of the federal courts to resolving “Cases” and “Co ntroversies.” U.S . Const. art. III, § 2, cl. 1. A party’s standing “is an essential and unchanging part of the case-or-controversy requirement of Article III.” L ujan v. Defenders of Wildlife, 5 04 U.S. 555, 560 (1992). To establish standing, a party must, a t a constitutional minimum, meet the following criteria. First, the plaintiff “must have suffe red an ‘injury in fact’ — an inva sion of a legally protected interest which is (a) concrete and part icularized . . . and (b) ‘actual or imminent, not ‘ conjectural’ or ‘hypothetical.’” Id. (citations omitted). Second, “there must be a causal connection between the injury and the conduct complaine d of — the injury has to be ‘fa irly . . . trace[able] to the challenged action of the def endant, and not . . . th[e] result [of] the independent action of some third party not before the cour t.’” Id. (alterations in origin al) (citation omitted) . Third, “it must be ‘likely,’ as opposed to merel y ‘speculative,’ that the injur y will be ‘redressed by a favorable decision.’” Id. at 561 (citation omitted). A “deficiency on a ny one of the three prongs suffices to defeat standing.” US Ecol ogy, Inc. v. U.S. Dep’t of Interio r, 231 F.3d 20, 24 (D.C. Cir. 2000). Plaintiffs here allege two forms of injury: an “inability to express certain views” because of discriminatory censorship by priv ate social-media companies and an “economic injury” that flows from the companies’ removal of Plaintiffs’ online content . See Opp. at 8. The Court assumes without deciding that Pl aintiffs have thus plausibly al leged an injury in fact. That asserted injury, however, is not f airly traceable to the Attorn ey General, nor is it likely to be redressed by the relief sought. B efore explaining why, the Cou rt first provides a brief primer on the challenged statutory provision.
A. Section 230 Section 230 of the Communicati ons Decency Act — captioned “Prot ection for private blocking and screening of offens ive material,” 47 U.S.C. § 230 — “immunizes providers of7 interactive computer services a gainst liability arising from co ntent created by thir d parties.” Fair Housing Council of San Fernando V alley v. Roommates.Com, LLC, 5 21 F.3d 1157, 1162 (9th Cir. 2008) ( en banc ). Specifically, it commands tha t “[n]o provider or user of an interactive computer service shall be treat ed as the publisher or speaker o f any information provided by another information content pr ovider.” 47 U.S.C. § 230(c)(1). It further states that “[n]o provider or user of an interactiv e computer service shall be he ld liable on account of . . . any action voluntarily taken in good fa ith to restrict access to or availability of material that the provider or user considers t o be obscene, lewd, lascivious, fil thy, excessively violent, harassing, or otherwise objectionable, wheth er or not such material is con stitutionally protected.” Id. § 230(c)(2)(A). A later section gi ves that protection preempti ve effective, providing that “[n]o cause of action may be brought and n o liability may be imposed under any State or local law that is inconsistent with this section.” Id. § 230(e)(3). As is relevant here, § 230 defines an “interactive computer ser vice” as “any information service, system, or access software provider that provides or e nables computer access by multiple users to a computer ser ver, including specifically a s ervice or system that provides access to the Internet.” Id. § 230(f)(2). Plaintiffs appear t o assume that Facebook, Twitter, and YouTube are providers of interac tive computer services, and cou rts have also so held. See, e.g., Klayman v. Zuckerberg, 753 F.3d 1354, 1357-58 (D.C. Cir. 2014) (holding Facebook is interactive computer-service pr ovider); Lancaster v. Alphabet I nc., 2016 WL 3648608, at *3 (N.D. Cal. July 8, 2016) (same as to YouTube). An “informationcontent provider,” conversely, is “any person or entity that is r esponsible, in whole or in part, for the creation or development of information provided through the I nternet or any other interact ive computer service.” 47 U.S.C. § 230(f)(3). This definition covers Plaintiffs here.8 What is the point of such a provisi on? Interactive computer se rvices like Facebook, YouTube, and Twitter can, for example, “perform some editing on user-generated content without thereby becoming liable fo r all defamatory or otherwise unlawful messages that they didn’t edit or delete.” Roo mmates.Com, 521 F.3d at 1163. “[L] awsuits seeking to hold [them] liable for [their] exercise of apublisher’s traditional editor ial functions — such as deciding whether to publish, withdraw, pos tpone or alter content — are b arred.” Zeran v. Am. Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997). The statutory language makes c lear, moreover, that § 230 is not enforced by the Attorney General, but is instead a form of protection from civil liabili ty for companies such as those mentioned here. Plaintiffs cite Reno v. ACLU, 521 U.S. 844 (19 97), to contend otherwise, see Compl., ¶ 77; Opp. at 10-11, but the ir reliance on Reno is misp laced. That case involved constitutional challenges to tw o other provisions of the CDA, 4 7 U.S.C. § 223(a)(1)(B)(ii) and (d), which criminalized certa in online conduct to protect minor s. See 521 U.S. at 861-64. While the Department of Justice might w ell enforce those provisions, Reno said nothing about § 230. That section does not grant the Attorney General any power to i mpose criminal or civil liability, nor to direct or forbid interactiv e computer services to take a ny particular action vis-à-vis thirdparty users, including deleting obj ectionable content. Indeed, § 230 affords Defendant no role — enforcement or otherwise — of any kind, nor does it delegate an y enforcement role to any federal agency or federal official.
B. Standing Defendant’s lack of enforcement au thority is fatal to Plaintiff s’ standing to bring this action, for it is a “long-standi ng rule that a plaintiff may no t sue a[n] . . . official who is without any power to enforce the complain ed-of statute.” Okpalobi v. F oster, 244 F.3d 405, 426 (5th Cir.9 2001) ( en banc ) (citing Gritts v. Fisher , 224 U.S. 640 (1912); Muskrat v. Uni ted States, 219 U.S. 346 (1911)); see also Digital Recognition Network, Inc. v. Hutc hinson, 803 F.3d 952, 957-58 (8th Cir. 2015) (“[W]hen a plainti ff brings a pre-enforcement c hallenge to the constitutionality of a particular statuto ry provision, the causa tion element of stan ding requires the named defendants to possess authority to enforce th e complained-of provision.”) (quoting Bronson v. Swensen, 500 F.3d 1099, 1110 (10th Cir. 2007)); Hope Clinic v. Ryan, 249 F.3 d 603, 606 (7th Cir. 2001) ( per curiam ) (“Because the public officials named as defendants could not cause the plaintiffs any injury by enforcing the statute s’ private-action provisions . . . [,] the plaintiffs lack standing with respect to these provisions.”); 13A Charles A. Wright & Arthur R. Miller et al. , Federal Practice & Procedure § 3531.5 (3d ed. 2016). Although the cases just cited con cerned suits against state off icials, the Court can discern no principled reason why their logi c as to Article III standing would not apply with equal force to suits against federal official s (or the federal government), and Plaintiffs offer none. Because the Attorney General lacks t he authority to enforce § 230, the injury alleged here is not fairly traceable to her actions. Plaint iffs therefore cannot satisfy the causation prong of Article III’s standing inquiry. For similar reasons, it is not “ likely” that Plaintiffs’ “injur y will be redressed by a favorable decision.” Lujan, 504 U .S. at 561 (internal quotatio n marks and citation omitted). Plaintiffs seek an injunction pr ohibiting Defendant from enforc ing § 230 and a declaration that the provision violates the Fir st Amendment. See Compl. at 24. As the Attorney General has no enforcement authority, such an i njunction would be meaningless. See Digital Recognition Network, 803 F.3d at 958 (citing Bronson, 500 F.3d at 1111; Okp alobi, 244 F.3d at 426-27); Scott v. Taylor, 405 F.3d 1251, 1259 ( 11th Cir. 2005) (Jordan, D.J., concurring) (“[I]n a suit10 against state officials for in junctive relief, aplaintiff does not have Article III standing with respect to those officials w ho are powerless to remedy the alle ged injury.”). It would not constrain Facebook, Twitter , or YouTube from invoking § 230 as a defense to any state-law discrimination or censorship ac tion brought against them by Pla intiffs, nor would it restore Plaintiffs’ removed content or l egally prevent the social-media platforms from deleting or otherwise editing Plaintiffs’ content in the future. The requested declaratory relief suffers from similar redressab ility defects. Plaintiffs’ argument rests on the entirely spe culative implication that Fac ebook, Twitter, and YouTube would voluntarily change course a nd permit Plaintiffs’ censored content to stand were the Attorney General to declare § 230 unconstitution al. Indeed, ev en absent the affirmative defense supplied by § 230, the private social -media companies could arg ue that they cannot be compelled to publish a particular messa ge. See, e.g., Hurle y v. Irish-Am . Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557, 573-74 (1995) ( “[O]ne important manife station of the pr inciple of free speech is that one who chooses to s peak may also decide what no t to say . . . . [That] rule’s benefit [is not] restricted to the press, being enjoyed by busi ness corporations generally . . . as well as by professional publishers.” ) (internal quotation marks and citation omitted); Miami Herald Publ’g Co. v. Torni llo, 418 U.S. 241, 256-58 (1974) (hol ding unconstitutional a Florida statute requiring newspapers to p rovide political candidates wi th free space to reply to attacks on their character); Mazur v. S zporer, 2004 WL 1944849, at *8 (D.D .C. June 1, 2004) (explaining that Miami Herald “held that gove rnmental intru sion into the fu nction of newspaper editors in deciding what to publish is a viol ation of the First Amendment” ). Plaintiffs’ contention that a de claratory judgment against the Attorney General would redress its asserted injury “ overlooks the principle that it mu st be the effect of the court’s11 judgment on the defendant that redr esses the plaintiff’s injury .” Nova Health Sys. v. Gandy, 416 F.3d 1149, 1159 (10th Cir. 2005) (emphasis added). “A declarat ion that [§ 230] is unconstitutional would not redress [Plaintiffs’] injury by virt ue of its effect on the defendant officials.” Digital Reco gnition Network, 803 F.3d at 958. At most, such a declaration might somehow indirectly affect the beh avior of the social-media comp anies as to Plaintiffs’ content — but that, again, is a wholly s peculative proposition. Id. at 9 59 (“Because the defendant officials do not enforce the Act, a declar atory judgment would not meet t he requirement of redressability.”) (cit ing Bronson, 500 F.3d at 1112; Gandy, 416 F.3d at 1159; Okpalobi, 244 F.3d at 423 n.31; id. at 431 (Higginbotha m, J., concurring)). If Plaintiffs remain unhappy with the companies’ content decisi ons, they can sue them and attempt to defeat any § 230 de fense that is raised — e.g. , by invoking the same constitutional arguments offered here. How suc h litigation might fare is, of course, beyond this Court’s power to divine.
IV. Conclusion For the foregoing reasons, the Court will grant Defendant’s Mot ion to Dismiss. A separate Order so stating will issue this day. /s/ James E. Boasberg JAMES E. BOASBERG United States District Judge Date: November 9, 2016