Cameron Atkinson v. Meta Platforms, Inc. ( 2021 )

FILED
NOT FOR PUBLICATION
NOV 22 2021
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CAMERON LEE ATKINSON, No. 20-17489
Plaintiff-Appellant, D.C. No. 3:20-cv-05546-RS
v.
MEMORANDUM*
META PLATFORMS, INC.; MARK
ZUCKERBERG,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Richard Seeborg, Chief District Judge, Presiding
Submitted November 18, 2021**
San Francisco, California
Before: THOMAS, Chief Judge, McKEOWN, Circuit Judge, and MOLLOY,***
District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Donald W. Molloy, United States District Judge for the
District of Montana, sitting by designation.
Atkinson appeals the dismissal of his claims without leave to amend. We
have jurisdiction under 28 U.S.C. § 1291. We affirm.
We review de novo dismissals for failure to state a claim under Federal Rule
of Civil Procedure 12(b)(6). Wilson v. Lynch, 835 F.3d 1083, 1090 (9th Cir. 2016),
sub nom. Wilson v. Sessions, 137 S. Ct. 1396 (2017). We review constitutional
issues de novo, Berry v. Dep’t of Soc. Servs., 447 F.3d 642, 648 (9th Cir. 2006)
(First Amendment), and consider factual findings more rigorously when First
Amendment challenges are involved. Cf. Lair v. Bullock, 798 F.3d 736, 748 n.8
(9th Cir. 2015) (“[O]ur review in First Amendment cases is more rigorous than
other cases, [but] we still give some deference to the district court’s factual
findings.”). We review questions of statutory interpretation informing dismissal de
novo, Lemmon v. Snap, Inc., 995 F.3d 1085, 1090 (9th Cir. 2021), and denials of
leave to amend for abuse of discretion, Wilson, 835 F.3d at 1090.
I
The district court properly dismissed Atkinson’s First Amendment claim
because he did not allege sufficient facts to infer that Meta Platforms is a
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government actor.1 Unless certain exceptions apply, the First Amendment only
restricts government action. Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct.
1921, 1928 (2019) (enumerating exceptions). Dismissal is proper when a
complaint lacks “a cognizable legal theory” or “sufficient well-pleaded,
nonconclusory factual allegations” to state a plausible claim for relief. Beckington
v. Am. Airlines, Inc., 926 F.3d 595, 604 (9th Cir. 2019) (internal quotation marks
and citation omitted).
Atkinson does not allege plausibly that the federal government “compel[led]
[Meta Platforms] to take a particular action,” Halleck, 139 S. Ct. at 1928, or
“exercised coercive power,” Blum v. Yaretsky, 457 U.S. 991, 1004 (1982).
Allegations of federal coercion do not support the deprivation under color of state
law that Atkinson pleaded. See 42 U.S.C. § 1983; Heineke v. Santa Clara Univ.,
965 F.3d 1009, 1013 n.3 (9th Cir. 2020) (finding that private actors are only
subject to § 1983 liability under a state action theory). Even if such facts could
support his claim, Atkinson does not allege federal coercion sufficiently. Instead,
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Atkinson does not appeal the district court’s dismissal of his argument that
Meta Platforms’ performance of a traditional, exclusive public function made it a
government actor, see Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921,
1928 (2019), so we do not address it.
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his allegations cast Meta Platforms’ decision to adopt community standards as a
self-interested business decision.
Atkinson also does not plead sufficient facts to infer that Meta Platforms
acted jointly with state governments. Halleck, 139 S. Ct. at 1928. We need not
accept as true factual allegations that Atkinson’s submitted exhibit contradicts.
Gonzalez v. Planned Parenthood of L.A., 759 F.3d 1112, 1115 (9th Cir. 2014). To
the extent that Atkinson’s allegations are not contradicted, they still do not reflect
joint action. Absent more, the fact that state officials responded to Meta Platforms’
unsolicited inquiries does not plausibly allege such a degree of “interdependence . .
. that [the state] must be recognized as a joint participant” in Meta Platforms’
editorial decisions. Tsao v. Desert Place, Inc., 698 F.3d 1128, 1140 (9th Cir.
2012) (citation omitted). Atkinson does not offer other facts that would make a
joint action claim plausible, such as an agreement between state governments and
Meta Platforms; state participation in Meta Platforms’ corporate governance;
financial ties between state governments and Meta Platforms; or Meta Platforms’
regulation of state activities. Cf. Brentwood v. Tenn. Secondary Sch. Athletic
Ass’n, 531 U.S. 288, 298–302 (2001) (explaining state action existed under such
circumstances). We cannot infer that state officials “dominate[d]” Meta Platforms’
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decision making from Atkinson’s allegations. Villegas v. Gilroy Garlic Festival
Ass’n, 541 F.3d 950, 955 (9th Cir. 2008).
Finally, Section 230 of the Communications Decency Act does not
independently transform Meta Platforms into a government actor for First
Amendment purposes. 47 U.S.C. § 230. Here, too, allegations that Meta Platforms
was a federal actor cannot support Atkinson’s § 1983 claim. Heineke, 965 F.3d at
1013 n.3.
II
The district court correctly dismissed Atkinson’s claim pleaded under
Section 230 because the provision does not establish a private right of action.
Private rights of action to enforce federal law “must be created by Congress,” and
without a statutory manifestation of congressional intent, “a [private] cause of
action does not exist and courts may not create one[.]” Alexander v. Sandoval, 532
U.S. 275, 286–87 (2001).
Section 230 does not explicitly create a private right to sue, see 47 U.S.C.
§ 230, nor do its “language, structure, context, [or] legislative history” implicitly
reflect any congressional intent to establish one. Lil’ Man in the Boat, Inc. v. City
and County of San Francisco, 5 F.4th 952, 958 (9th Cir. 2021). Section 230 is not
“phrased in terms of [individual] persons benefited.” Gonzaga Univ. v. Doe, 536
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U.S. 273, 284 (2002) (holding no private cause of action absent such language);
see also UFCW Local 1500 Pension Fund v. Mayer, 895 F.3d 695, 699 (9th Cir.
2018) (stating the statute must place an “unmistakable focus” on the individuals
authorized to sue). In fact, to the extent that it addresses private suits at all, Section
230 only uses “remedy-foreclosing” language. Mayer, 895 F.3d at 699 (stating “a
statute must (at the very least) avoid remedy-foreclosing language” to confer a
private cause of action); see 47 U.S.C. § 230(c) (limiting liability). Finally, in its
broader context, Section 230’s “aggregate focus” on promoting free speech
online—rather than on “the needs of any particular person”—cautions against
concluding that a private cause of action exists. AlohaCare v. Haw. Dep’t of
Human Servs., 572 F.3d 740, 746 (9th Cir. 2009).
III
The district court also properly concluded that Atkinson’s breach of implied
warranty claim targets Meta Platforms’ publishing decisions and is, therefore,
barred under Section 230(c)(1). Barnes v. Yahoo!, Inc., 570 F.3d 1096, 1107 (9th
Cir. 2009) (Section 230(c)(1) “precludes liability when the duty the plaintiff
alleges the defendant violated derives from [its] status or conduct as a publisher or
speaker.”); 47 U.S.C. § 230(c)(1) (“No provider or user of an interactive computer
service shall be treated as the publisher or speaker of any information provided [by
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a third party].”). Atkinson’s implied warranty allegations all center on Meta
Platforms’ removal of his posts. He offers no facts indicating that Meta Platforms
“objective[ly] inten[ded]” to depart from Section 230’s baseline protection or
waive its defenses. Barnes, 570 F.3d at 1108. As a result, his allegations
“necessarily involve[] treating [Meta Platforms] as a publisher of the content it . . .
remove[d].” See id. at 1103 (“removing content is something publishers do”),
1102 n.8 (deciding “what to remove among the published material” is an editorial
decision). Atkinson cannot circumvent Section 230(c)(1) “by changing the name
of the theory” or mislabeling “an action that is quintessentially that of a publisher.”
Id. at 1102–03; see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“A pleading
that offers labels and conclusions or a formulaic recitation of the elements of a
cause of action will not [survive dismissal].” (internal quotation marks and citation
omitted)).
IV
Finally, the district court did not abuse its discretion in denying Atkinson
leave to amend his Connecticut Unfair Trade Practices Act claim to allege a nearly
identical claim under California law. Compare Conn. Gen. Stat. §§ 42-110g(a),
42-110b(a), with 2021 Cal. Legis. Serv. Ch. 140, § 17204 (West) (amending Cal.
Bus. & Prof. Code § 17204), and Cal. Bus. & Prof. Code § 17200. Dismissal with
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prejudice and without leave to amend is appropriate when any amendment would
be futile. Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir.
2003) (per curiam). Atkinson has conceded he has no further facts to allege.
Because Atkinson’s California Unfair Competition Law claim would target the
same publishing conduct as his implied warranty claim—the removal of his
posts—it is also barred by Section 230(c)(1), and we need not reach its merits. See
47 U.S.C. §§ 230(c)(1), (e)(3) (limiting liability for publishing conduct and
preempting contradictory state laws); Barnes, 570 F.3d at 1103 (removing content
is publishing conduct); cf. Parents for Priv. v. Barr, 949 F.3d 1210, 1239 (9th Cir.
2020) (affirming a dismissal with prejudice and without leave to amend where the
plaintiff’s legal theory must fail).
AFFIRMED.
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