Case 5:17-cv-06064-LHK Document 54 Filed 03/26/18 Page 17 of 27 1 express their views in a private facility, such as a shopping center, have a constitutional right to do 2 so”); Cyber Promotions, Inc. v. Am. Online, Inc., 948 F. Supp. 436, 442 (E.D. Pa. 1996) (“AOL 3 has not opened its property to the public by performing any municipal power or essential public 4 service and, therefore, does not stand in the shoes of the State.”). The Court likewise declines to 5 find that Defendants in the instant case are state actors that must regulate the content on their 6 privately created website in accordance with the strictures of the First Amendment. As a result, 7 the Court concludes that Plaintiff has failed to state a claim against Defendants under the First 8 Amendment. United States District Court Northern District of California 9 Accordingly, the Court GRANTS Defendants’ motion to dismiss (1) Plaintiff’s substantive 10 cause of action for violation of the First Amendment; and (2) Plaintiff’s claim for declaratory 11 relief, to the extent that it is premised on a violation of the First Amendment. The Court affords 12 leave to amend because Plaintiff may be able to allege sufficient facts to support a First 13 Amendment claim. See Lopez, 203 F.3d at 1127 (holding that “a district court should grant leave 14 to amend . . . unless it determines that the pleading could not possibly be cured by the allegation of 15 other facts” (internal quotation marks omitted)). 16 17 b. Lanham Act Plaintiff also asserts a cause of action against Defendants for false advertising in violation 18 of the Lanham Act, 15 U.S.C. § 1125(a)(1)(B). Section 1125(a)(1)(B) forbids a person from 19 making any false or misleading statements of fact “in commercial advertising or promotion” that 20 “misrepresent[] the nature, characteristics, qualities or geographic origin of his or her or another 21 person’s goods, services, or commercial activities.” In order to prevail on a false advertising claim 22 under § 1125(a)(1)(B), a plaintiff must demonstrate: “(1) false statement of fact by the defendant 23 in a commercial advertisement about its own or another’s product; (2) the statement actually 24 deceived or has the tendency to deceive a substantial segment of its audience; (3) the deception is 25 material, in that it is likely to influence the purchasing decision; (4) the defendant caused its false 26 statement to enter interstate commerce; and (5) the plaintiff has been or is likely to be injured as a 27 28 17 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