YouTube Secures Dismissal of Content Creators’ Gender and Sexual Identity Discrimination Claims

The Northern District of California rejected the discrimination claims of a group of content creators, viewers, and consumers who identify themselves as Lesbian, Gay, Bisexual, Transgender, Transsexual or Queer (LGBTQ+) that filed suit against Google and YouTube for censoring or demonetizing certain video content.

Last week’s 35-page opinion considered a range of arguments from the plaintiffs, but found  them either lacking or barred by YouTube’s Communications Decency Act (CDA) Section 230 defense with the exception of their claim for breach of the implied covenant of good faith and fair dealing, which they have leave to amend.

The putative class action asserts that despite YouTube’s purported viewpoint neutrality, it discriminates against LGBTQ+ content creators and viewers based on their sexual or gender orientation, identity, and viewpoints by interfering with certain videos.

In January 2021, the court dismissed the first amended complaint with leave to amend most claims. In their revised pleading, the plaintiffs stated causes of action for false advertising and for discrimination under the California Constitution and its Unruh Civil Rights Act based on YouTube’s allegedly unfair demonetization of content and placement of videos in Restricted Mode.

In last week’s opinion issued by Magistrate Judge Virginia K. DeMarchi, the Unruh Act claim initially survived, owing to allegations that the plaintiffs’ videos were restricted or demonetized when allegedly similar non-LGBTQ+ content was not, as well as allegations that some videos were restricted even when the content concerned innocuous subject matter. Similarly, the court found their California Unfair Competition Law (UCL) claim sufficient to withstand dismissal scrutiny.  

However, YouTube’s Section 230 CDA defense was upheld, barring both the Unruh and UCL claims that targeted the defendant’s “publishing function.” 

In view of that ruling, the court weighed the plaintiffs’ argument that CDA Section 230 is unconstitutional, but ultimately disagreed. Judge DeMarchi recalled her prior conclusion that the plaintiffs failed to establish the presence of state action in support of their First Amendment claim. 

She pointed to a number of reasons, including that YouTube’s hosting of speech on a private platform is not a traditional and exclusive government function and that the plaintiffs fell short of proving that YouTube is an effective equivalent of state actors. Judge DeMarchi said no newly pleaded allegations alter that conclusion.

The plaintiffs are represented by Ellis George Cipollone O’Brien Annaguey LLP and Google and YouTube by Wilson Sonsini Goodrich & Rosati.