Court Dismisses YouTube Content Creators’ Race-Based Discrimination Suit

Ten individuals who sued Google LLC and its video platform YouTube LLC have 30 days to file an amended complaint in their case contending that YouTube restricts and “demonetizes” their videos in violation of equal rights laws. In last Friday’s opinion, Judge Lucy H. Koh ruled on multiple federal and state claims, ultimately finding that the African American, Mexican, and Puerto Rican-descent complainants failed to state a claim upon which relief could be granted.

The order explained that YouTube, the world’s largest and most popular video platform, permits users to upload videos to a central location known as a channel. Select content creators can earn money by partaking in YouTube’s advertising program. In addition, videos with adult content so designated by YouTube are reportedly available to users on an opt-in basis only known as “Restricted Mode.”

The plaintiffs contended that the defendants discriminate against them in several ways, ultimately demoting their videos and limiting their earning abilities. The complaint, originally filed in June 2020, first contended that videos are improperly included in Restricted Mode not because of qualifying content, but because of the plaintiffs’ racial identities or viewpoints. 

In addition, Google and YouTube allegedly demonetized the plaintiffs’ videos by blocking advertisements from running on them. The complaint asserted that other misconduct, including removing videos or channels from search results, violates the plaintiffs’ civil rights, infringes trademark laws, and is anticompetitive.

The content creators sought a declaratory judgment that Section 230 of the Communications Decency Act either does not protect the defendants’ purported misconduct or is unconstitutional. During dismissal briefing, the United States intervened to defend the constitutionality of Section 230. Last week’s opinion did not reach the issue, however.

As to the plaintiffs’ federal discrimination claim, the court held that they failed to state a claim under 42 U.S.C. § 1981 because they did not plead facts supporting a finding that the defendants “‘intentionally and purposefully discriminated against them.’” Judge Koh noted that the plaintiffs neither alleged that their videos have been removed from YouTube, nor have they been blocked from posting videos.

Moreover, the opinion said, some plaintiffs’ Restricted Mode videos are still available for monetization, earning them thousands in advertising revenue. “Were race the motivating factor behind Defendants’ moderation decisions, the Court would expect that Plaintiffs’ videos would be largely unavailable and demonetized,” the order explained.

The court rejected the plaintiffs’ First Amendment free speech claim after finding that the companies were not state actors. Under Ninth Circuit precedent, non-governmental entities are not subject to constitutional liability for editorial choices, the opinion said. 

Judge Koh declined to exercise jurisdiction over the plaintiffs’ nine substantive state law claims, and likewise would not address their Communications Decency Act claim “because such adjudication is avoidable and unnecessary to decide Defendants’ motion to dismiss.” The court did however grant the plaintiffs leave to amend.

The content creators are represented by Browne George Ross O’Brien Annaguey & Ellis and Henkel & Cohen. Google and YouTube are represented by Wilson Sonsini Goodrich & Rosati.