Case 5:17-cv-06064-LHK Document 54 Filed 03/26/18 Page 10 of 27 1 amount to state action: (1) the public function test; (2) the joint action test; (3) the state 2 compulsion test; and (4) the governmental nexus test.’” Tsao v. Desert Palace, Inc., 698 F.3d 3 1128, 1140 (9th Cir. 2012) (alteration adopted) (quoting Franklin v. Fox, 312 F.3d 423, 444–45 4 (9th Cir. 2002)). Plaintiff contends that Defendants are state actors under the “public function” test. See United States District Court Northern District of California 5 6 Compl. ¶ 87 (stating that “Defendants further act as state actors because Defendants and the 7 YouTube site perform an exclusively and traditionally public function”). Under the public 8 function test, “[p]rivate activity becomes a ‘public function’ only if that action has been 9 ‘traditionally the exclusive prerogative of the State.’” Brunette v. Humane Soc’y of Ventura Cty., 10 294 F.3d 1205, 1214 (9th Cir. 2002) (quoting Rendell-Baker v. Kohn, 457 U.S. 830, 842 (1982)). 11 The United States Supreme Court has stated that “[w]hile many functions have been traditionally 12 performed by governments, very few have been ‘exclusively reserved to the State.’” Flagg Bros., 13 Inc. v. Brooks, 436 U.S. 149, 158 (1978) (quoting Jackson v. Metro. Edison Co., 419 U.S. 345, 14 352 (1974)). Examples of functions that have been deemed to be “traditionally the exclusive 15 prerogative of the State” include “hold[ing] [public] elections,” “govern[ing] a town,” and 16 “serv[ing] as an international peacekeeping force.” Brunette, 294 F.3d at 1214 (citing Terry v. 17 Adams, 345 U.S. 461, 484 (1953), Marsh v. Alabama, 326 U.S. 501, 507–09 (1946), and Dobyns 18 v. E-Systems, Inc., 667 F.2d 1219, 1226–27 (5th Cir. 1982)). Plaintiff does not point to any persuasive authority to support the notion that Defendants, 19 20 by creating a “video-sharing website” and subsequently restricting access to certain videos that are 21 uploaded on that website, Compl. ¶¶ 35, 41–46, have somehow engaged in one of the “very few” 22 functions that were traditionally “exclusively reserved to the State.” Flagg Bros., 436 U.S. at 158. 23 Instead, Plaintiff emphasizes that Defendants hold YouTube out “as a public forum dedicated to 24 freedom of expression to all” and argues that “a private property owner who operates its property 25 as a public forum for speech is subject to judicial scrutiny under the First Amendment.” Opp. at 26 18. 27 28 10 Case No. 17-CV-06064-LHK ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS PLAINTIFF’S FEDERAL CAUSES OF ACTION; DISMISSING PLAINTIFF’S STATE LAW CAUSES OF ACTION; AND DENYING PLAINTIFF’S MOTION FOR A PRELIMINARY INJUNCTION