Case 5:17-cv-06064-LHK Document 54 Filed 03/26/18 Page 11 of 27 United States District Court Northern District of California 1 Plaintiff primarily relies on the United States Supreme Court’s decision in Marsh v. 2 Alabama to support its argument, but Marsh plainly did not go so far as to hold that any private 3 property owner “who operates its property as a public forum for speech” automatically becomes a 4 state actor who must comply with the First Amendment. Opp. at 18. In Marsh, a “company 5 town” that was entirely owned by a private corporation, Gulf Shipbuilding Corporation, imposed a 6 criminal penalty on a Jehovah’s Witness who distributed religious literature “on the premises of 7 the company-owned town contrary to the wishes of the town’s management.” 326 U.S. at 502. 8 The company town had “all the characteristics of any other American town,” including 9 “residential buildings, streets, a system of sewers, a sewage disposal plant and a ‘business block’ 10 on which business places [were] situated.” Id. In short, there was “nothing to distinguish” the 11 company town “from any other town and shopping center” except for the fact that a private 12 corporation owned all the property and ran all aspects of the town, including all of its municipal 13 functions. Id. Ultimately, despite the fact that Gulf Shipbuilding Corporation was a private entity, 14 the Supreme Court held that it was a state actor that was required to run the town in compliance 15 with the Constitution. Id. at 505–08. As a result, the criminal penalty imposed on the Jehovah’s 16 Witness was due to be reversed because it violated her First Amendment rights. Id. at 504–05. 17 Marsh’s holding stands for the proposition that a private entity that owns all the property 18 and controls all the municipal functions of an entire town is a state actor that must run the town in 19 compliance with the Constitution. Thus, contrary to Plaintiff’s position, Marsh does not compel 20 the conclusion that Defendants are state actors that must comport with the requirements of the 21 First Amendment when regulating access to videos on YouTube. Unlike the private corporation in 22 Marsh, Defendants do not own all the property and control all aspects and municipal functions of 23 an entire town. Far from it, Defendants merely regulate content that is uploaded on a video- 24 sharing website that they created as part of a private enterprise. 25 26 27 28 To be sure, Marsh does contain some broader language that could be construed to support Plaintiff’s position that because Defendants hold out and operate their private property (YouTube) 11 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