Case 3:18-cv-06295-JD Document 19 Filed 06/18/19 Page 1 of 2
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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HARRY J. WILLIBY,
Plaintiff,
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Case No. 18-cv-06295-JD
v.
MARK ZUCKERBERG, et al.,
Defendants.
SECOND ORDER RE IFP
APPLICATION AND
TRO/INJUNCTION MOTIONS
Re: Dkt. Nos. 11, 15, 16
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United States District Court
Northern District of California
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The Court dismissed the original complaint with leave to amend, and denied the TRO
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application, in the course of reviewing plaintiff’s request to proceed in forma pauperis. 28 U.S.C.
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§ 1915(e)(2)(B); Dkt. No. 9. Plaintiff filed an amended complaint, which again tries to state a
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First Amendment claim against defendants under 42 U.S.C. § 1983 for blocking posts on
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Facebook that violated its hate speech standards, and related conduct. Dkt. No. 10.
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The amended complaint is dismissed with prejudice with respect to the First Amendment
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and Section 1983 claim. The gravamen of the claim is that Facebook is a private entity that
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operates a public forum for speech and consequently is bound by the First Amendment’s speech
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guarantees. See, e.g., id. ¶¶ 19-20. The problem that plaintiff cannot overcome is that the First
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Amendment applies only to governmental abridgements of speech, and not to alleged
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abridgements by private companies like Facebook. Manhattan Community Access Corp. v.
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Halleck, ___ S.Ct. ___, No. 17-1702, 2019 WL 2493920, at *4 (June 17, 2019). Plaintiff’s effort
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to find a First Amendment hook in a state actor theory is not tenable. A private entity that
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provides a forum for speech does not engage in an activity that the government has traditionally
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and exclusively performed, and so does not qualify as a state actor subject to First Amendment
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constraints. Id. at *5-6. “The private entity may thus exercise editorial discretion over the speech
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and speakers in the forum.” Id. at *5.
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