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King v. Facebook, Inc.

United States District Court, N.D. California

September 5, 2019

CHRISTOPHER KING, Plaintiff,
v.
FACEBOOK, INC., and DOES Defendants.

          ORDER GRANTING DEFENDANT'S MOTION TO DISMISS RE: DKT. NOS. 20, 28

          WILLIAM H. ORRICK, UNITED STATES DISTRICT JUDGE

         Section 230(c)(1) of the Communications Decency Act (“CDA, ” 47 U.S.C. § 230(c)(1)) provides broad immunity for interactive computer services providers against claims that treat the providers as publishers. In this case, pro se plaintiff Christopher King alleges six causes of action against defendant Facebook, Inc. (“Facebook”), all of which are predicated on Facebook's acts of removing King's posts from its platform or suspending King's Facebook account.[1] King alleges Facebook removed multiple posts by him, and temporarily suspended his Facebook access on several occasions in 2018, for posts that Facebook deemed a violation of its terms of service (“ToS”). The crux of his claim is that Facebook has violated its ToS in removing his posts and suspending his account, and that Facebook treats black activists and their posts differently than it does other groups, particularly white supremacists and certain “hate groups.” Because each cause of action accuses Facebook of wrongful acts it took as a publisher, none survives the application of Section 230(c)(1) of the CDA, and Facebook's motion to dismiss is granted.[2]

         BACKGROUND

         I. FACTUAL BACKGROUND

         Facebook runs a web-based social media service with over two billion users. SAC ¶¶ 4, II. King asserts that Facebook is the “World's largest single alleged protector of Public Speech Rights the World has ever seen, ” but has a mission to create a “Nation State” that intends to “crush all competition.” Id. ¶¶ 11, 13-14. King is a former civil rights attorney and journalist. Id. ¶¶ 9- 10. He joined Facebook in or around 2010, and often uses the site to post about his activism. Id. ¶¶ 10, 19, 37. He also created the following site: https://howtosuefacebook.blogspot.com. Id. ¶ 38.

         King filed this action to “hold FB accountable to its TOS contractual arrangements.” Id. at 1. Facebook has a contractual, adhesive set of Terms of Service (“ToS”) for its users, which King claims includes provisions that protect minority users from being punished for using certain terms in a “self-referential” or “empowering way.” Id. ¶ 15. He alleges that Facebook removed his access to the service or blocked content he posted on several occasions in 2018 for reasons it labeled as violations of the ToS. In Spring 2018, he “was banned” by Facebook when he posted a complaint regarding a confrontation he had with an attorney where he commented that he “feels like he is being treated like a nigger and cannot fight back physically or he will be at fault.” Id. ¶ 30. On November 2, 2018, Facebook “banned” him again for violating its ToS after plaintiff posted about an argument with a “white male” who “got in his face and dropped 5 F-Bombs.” Id. ¶ 31. King posted the sheriff's report of the incident on Facebook, describing the report as biased and pointing out the race of the witnesses juxtaposed with his own race. Id. He was “banned” four to five more times for posting about this incident, including when he uploaded photos of the confrontation and the following text:

Nigger, Nigger, Nigger.... How dare you challenge me. I am a white male of some sort of privilege. I can basically spit in your face and drop 5 F-Bombs And the local Sheriff will find a way to ignore it. You stupid nigger.

Id. at ¶¶ 32-33.

         King was banned again “on his birthday” for a violation of Facebook's ToS, and banned again in Fall 2018 for another ToS violation. Id. ¶¶ 34-35. He was banned on another occasion for posts referencing Facebook's banning of “politically progressive rapper Lil B the BASEGOD, ” writing that “Facebook gunned down another nigger…” and “we're dropping like flies around here.” Id. ¶ 36. Finally, his blog howtosuefacebook.blogspot.com was blocked from being linked to or shared through Facebook's “Messenger” service due to an unspecified violation of Facebook's “Community Standards.”

         King alleges that Facebook's treatment of black posters is not equivalent to its treatment of others, alleging that Facebook “has allowed whites to say the same thing that blacks have been banned for.” Id. ¶¶ 47-49. He relies on published comments and articles from Facebook users, attorneys, and a former Facebook strategic manager to support his allegation that Facebook treats its black employees and users differently than its white ones, and bans them for the exact sort of activism, content creation, and posting that he himself engages in. Id. at 1-3, ¶¶ 17, 22, 25, 26-28, 44, 47-48. King alleges that Facebook's own breach of its ToS is actionable because Facebook's removal of his posts was in “bad faith” and “retaliatory” based solely on the content of his speech. Id. at 1, ¶¶ 24, 38-40.

         Since the hearing on this motion, King has filed a post-hearing update, explaining more clearly an additional theory of liability; that Facebook has retaliated against him for his speech critical of Facebook. He notes that Facebook has not blocked access to King's First Amendment page but has blocked access to his How to Sue Facebook page. As of August 20, 2019, Facebook has apparently reversed course and now allows linking to and sharing of King's How to Sue Facebook page. Dkt. Nos. 33, 40.

         II. IPROCEDURAL BACKGROUND

         King filed this case on April 12, 2019, days after an action alleging similar claims based on similar allegations was dismissed with prejudice in King County Superior Court (Seattle, Washington). See Declaration of William Hicks (“Hicks Decl.”) [Dkt. No. 20-2], Exs. A & B. In that case, filed on November 7, 2018, King asserted three of the same causes of action against Facebook that he alleges here, Violation of 42 U.S.C. § 1981, Breach of Contract, and Promissory Estoppel. Hicks Decl., Ex. A. Those claims were based on materially similar allegations to ones asserted here, that Facebook improperly removed his posts, suspended his account, and discriminated against him and other black activists. Ex. A at 14.

         In the Washington state court action, King voluntarily dismissed with prejudice his claim for violation of 42 U.S.C. § 1981. Hicks Decl., Ex. B (11.13.2018 Stipulation and Rule 41 Dismissal of Sole Federal Claim with Prejudice). The Washington state court dismissed the remaining claims for improper venue and ordered King to pay Facebook's fees and costs incurred to respond to a premature discovery motion filed before Facebook's responses were even due. See 2/21/2019 Order at 2 (“[T]he court is unable to find that plaintiff's motion was ‘substantially justified or that other circumstances ...


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