On November 4th, Judge Beth Labson Freeman denied the emergency injunction recently filed against Google. Now the plaintiffs are considering all of their legal options.
“I am inclined to deny this temporary restraining order,” Judge Freeman hinted on November 2nd, following the Zoom hearing. The ruling was decided the day following the election.
Following the emergency injunction filed against Google at the end of October, the big tech company’s attorney Lauren White of Wilson Sonsini maintained that the plaintiffs’ videos violated the spirit of their policy, and yet remarkably stated Google/YouTube didn’t have to go into the specifics of the videos to illustrate and prove cyberbullying violations.
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White asserted that there was no breach of contract. She also reiterated the onus on the plaintiffs to prove their content did not violate the harassment policy, but interestingly did not give specifics on which videos violated the policy over a span of six years on the platform. Meanwhile, Judge Freeman was not interested in reviewing content that YouTube won’t provide. In fact, YouTube claimed they’re exercising “their own First Amendment right.”
At 9 a.m on November 2nd, the day before the elections, Judge Beth Labson Freeman, an Obama appointee, heard an emergency injunction filed by Cris Armenta and Credence Sol of ARMENTA & SOL against GOOGLE to reverse the October 15th purge of arguably the largest Trump supporters and newsmakers on YouTube.
Ultimately the judge was unmoved by the breach of contract claim and indicated she would not look at the content to determine whether it was violative of a material violation, that was strange indeed. Below is my transcript of the Zoom call with added commentary.
“I obviously do not know what the sites say and frankly the content is not relevant to my analysis,” said Freeman who admitted not even knowing that YouTube allows users to regularly upload new episodes.
“So was YouTube reasonable in suddenly determining that there was content that was in breach of the agreement and may cause harm to YouTube?” asked Armenta. “Well first off they didn’t say that. What they said in the notices was that it was cyberbullying and harassing, and yet despite requests and the plaintiffs asking for (more) information, they remained quote ‘baffled’ as to what they did.”
Armenta continued by adding: “Can you really interpret in a contract what will take you down if you violate the contract when YouTube will not tell you how you violated the contract? And we’re not going to give you any clue. In fact, even if you sue us … we’re still not going to tell you what you did. And given the general policy in favor of promoting the stability of contracts, it simply seems untenable to allow YouTube to simply hike the ball and say you violated something somewhere but we’re not going to tell you why or what. That certainly isn’t in good faith of what is in a contract.”
In response, Judge Freeman turned to White while expressing concern for the Anonymous Declaration, testimony from an anonymous YouTube employee.
“I need you to respond to the fact these plaintiffs have no idea why their channels were taken down. And no idea how to appeal,” Judge Freeman requested to White.
It appears YouTube took down the influencers’ sites and then changed their policies. And the dates do not seem to work out. If this take-down was based on an October 17th change in policy, that may be an issue with violating the contract, Judge Freeman added.
“Is there something in the contract that requires YouTube to identify the problem with the material? Or whether it’s a material breach of the Community Standards and Terms of Services?” Freeman asked White.
White responded by saying, “The connection between the type of content at issue in the plaintiffs’ channels and the real-world harm and violence is well established and recognized by the FBI and West Point’s Combating Terrorism Center.” Incidentally, West Point educates, advises, and conducts research to equip present and future leaders with the intellectual tools necessary to understand the challenges of terrorism and counterterrorism.
White also stated that they have not revealed identities or specifics for safety reasons, referencing the shooter on the Google campus two years prior. The shooter happened to be a content creator who was dissatisfied with the breach of their content on the platform and objected to YouTube’s guidelines. Not to mention that this lawsuit was titled “Punch Google.” White’s practice focuses on matters raising novel legal questions involving Section 230 of the Communications Decency Act, the First Amendment, the Digital Millennium Copyright Act, the Wiretap Act, and the Video Privacy Protection Act.
There seem to be some legitimate and valid concerns that justify the lack of specificity on the part of Google.
Freeman mentioned wanting to know who exactly had filed the complaints to make sure there was a person involved. She wanted to be assured there was a live person behind the declaration and stated that she could keep that person’s identity confidential.
White then said that YouTube is under no obligation to host content and Armenta then responded by claiming that the plaintiffs have suffered an injury and that they have a right to host their content on YouTube’s platform.
“They do not hold those rights under the contract. There is no contractual right,” said White. “So the merits of the breach and irreparable damage can be decided on those grounds alone.”
White made it a point to state that the plaintiffs still have access to Google’s services. 1) Plaintiffs are free and able to use YouTube to search for other videos. 2) Google has not suspended their account. 3) Plaintiffs have access to other Google services.
White then added that Google has the right to remove content if they feel someone has committed a violation.
“The plaintiffs are asking for a mandatory injunction that will change the status quo to show the laws and the facts clearly favor their position. It strikes me that in order to do so they would need to show evidence that YouTube’s decision here was not reasonable. In light of the FBI’s findings and West Point’s findings of the nature of QAnon Conspiracy theory and the PizzaGate conspiracy theory and the targeted harassment involved in plaintiff’s videos that they do not deny, that is more than enough of a basis to conclude that plaintiffs have no chance of prevailing,” said White.
Judge Freeman then added that the plaintiffs are unsure what content was in question since they have had their channels for a duration of six years, and there was no indication of the type of content that had changed over time. “There was no contractual right for them to know what specific parts of the videos gave rise to the violation and nowhere does YouTube promise to do that,” said White. “All the plaintiffs got notices that their channels had been terminated because they contained targeted harassment. Plaintiffs were on notice that they had to comply with their community guidelines and that they could change from time to time.”
“YouTube has long had policies around hate and harassment and has long taken enforcement action against these types of ‘conspiracy theories’,” added White.
Armenta interjected to ask White, “Are you arguing that the October 17th change in the TOS is not what you acted on? But prior policy or prior TOS?”
“Miss Armenta is incorrect,” replied White. “As we explained in our brief, the policy announcement happened before the enforcement action. But the hate and harassment policies and the principles underlying them have long been in place. As a side note: Facebook Whistleblower Ryan Hartwig says this same mindset at Facebook was referred to as the ‘spirit of the policy.’ Meanwhile, YouTube announced that October 15th was simply a change in its enforcement approach and a refinement of the harassment policy that articulated a concrete example of the type of content that would fall within it and it’s entirely possible that the plaintiff’s content violated the policy before the enforcement action was taken on October 15th and it was entirely consistent with the Community Guidelines.”
Interesting how the term “conspiracy theory” is tossed around without any specifics on what exactly is conspiratorial.
Three Strikes And You Are Out
White informed Judge Freeman and the public listening in to the Zoom call that three strikes are not the only basis for channel termination. The Communist Guidelines outline that channel terminations occur with extreme policy violations or if your channel is ‘dedicated’ to a policy violation, e.g. Covid-19 ‘misinformation.’ (This was why my own channel of four years was expunged within minutes.)
“YouTube does try to inform the user of the reason but they do not promise any level of specificity or advance notice. YouTube can suspend a channel without notice when content could create harm,” says White.
“If the breach is that the plaintiffs did not receive adequate notice then there is no reason that the temporary restraining order would remedy the lack of notice. That is not what the plaintiffs are seeking. They are seeking the immediate restoration of the plaintiffs’ channels but there is nothing in the contract to point to. There is no contractual right and Ms. Armenta has said nothing about YouTube’s own First Amendment right on what speech to allow & what to not allow. Especially when you can consider the nature of the harmfulness of this type of content. YouTube is well aware of its discretion not only under its TOS but under the First Amendment rights.”
It’s own First Amendment?
Armenta went on to show that they purged people on October 15th for a policy that did not exist until October 17th, 2020. They didn’t add the changes to their Terms of Service until the 17th.
Targeting an individual and making claims is a harmful conspiracy. That is the policy of temporary restraining order (TRO) that did not exist on October 15th.
“In their notice that Google provided to the court, they said they informed them that due to repeated violations they were suspending their account. Now they want to say that they didn’t disable their account but only their content. So that does create some ambiguity since it comes from Google itself. Their ambiguity must be interpreted against them.” said Armenta.
“Whether we are looking at account suspension or content removal, we can see a violation. Either way, the plaintiffs did not adhere to their own contract. Under that provision, were there repeated breaches? We do have evidence that these plaintiffs did not have repeated notices. The materiality issue, the only reason they were given was cyberbullying and harassing. So the court says, ‘Where is your evidence of that?’”
Armenta referred to a plaintiffs in the complaint.
“I was not notified by YouTube of the specific reason for the suspension or deletion, other than a general email referencing their cyberbullying and harassment policy. But my content was NOT cyberbullying or harassing in the ways described in the policy. They did not see anything violative of the content. So it falls to YouTube, but other than the FBI does not like QAnon or the FBI does not like this or that, they did not provide the court with a piece of evidence with any of the 15 plaintiffs that have been viewed by more than 800 million people, that shows the content violated or caused harms or created harm or created liability. So the court does have before them that there was no clear violation to give YouTube sufficient jurisdiction to delete their content or delete their account.’
“So what is the context as they have not identified a single video. A single screenshot. A single URL. And it’s not like this is a small company without the resources to do that. We’re literally talking about the largest tech company in the entire world. So for them to not be able to provide any shred of evidence. There are many channels that have NOTHING to do with Qanon and have been swept in to this immediate and sudden PURGE with no knowledge as to why. And they were baffled.”
Freeman stated that “It’s really up to YouTube to decide whether they violate, it’s at their own discretion. So whether I like content or not is immaterial. It’s not up to us. You would need to persuade me to do it.”
The judge did not think it was up to her to view the content.
“It’s really up to YouTube to decide. And I do not know if we are ever going to be in a situation where jurors are deciding whether the content violates the policy because of the extraordinary discretion that the company has. Whether I like the content that the plaintiffs are posting or I don’t is immaterial. It’s not up to me. I haven’t and I would need to be persuaded. I just want to see if the contract was complied with.”
Armenta added, “There has been a question as to whether YouTube can operate purely subjectively or purely objectively when it comes to content removal. I think that applies to its own terms of services as well. The Ninth Circuit case of Malware VS Enigma is very instructive on that point. Just in September, the court held that, NO, YouTube may not subjectively at its will or caprice delete content for reasons that were not made clear.”
Judge Freeman then stated that that is under Section 230, which she was not looking at in this motion.
“Well then from a contractual point of view your honor if you have a contract between two parties, and the contract says it can be terminated, and one party says there has been a material breach, I do not know of an instance where the court doesn’t look at the breach itself to know if it’s material,” responded Armenta.
“How can the court determine without looking at what it was that was the alleged breach? YouTube has come here today talking a lot about QAnon and the FBI says there is no question that this content is violative but the court hasn’t gotten the opportunity or looked at the content because YouTube did not provide any content. And I think the reason why is because it probably got it wrong. The declaration is not reliable and it is hearsay. They even got wrong the attribution of a quote from Andrew Breitbart when they claimed that the plaintiffs said that John Podesta was a ‘sex slave cover upper’ and in fact, it only took about two seconds to find out the quote was from Andrew Brietbart and not any of the plaintiffs. So how can the court believe this anonymous declaration that is replete with hearsay without looking at the actual content itself?” asked Armenta.
“I am not judging materiality on a TRO, remember,” responded Judge Freeman. I am not deciding the ultimate merits of the case; I am determining whether you have established that you have the likelihood of success of the merits and you are asking for a mandatory injunction, and so the standard is higher,” said Judge Freeman.
“If we are looking at the reasonable likelihood of prevailing on the merits, ” responded Armenta, “then we have to decide how good the contract claim is. The contract claim necessarily rests on whether or not, as YouTube is defending, the plaintiffs materially or repeatedly violated the contract. If the plaintiffs have evidence that there were not repeated strikes, then the question goes to materiality. So don’t we look at the content itself?”
At this point Freeman interjects, “But you did not submit the content and I recognize the impediment.” She then turned to Google attorney White on the notion that the Community Guidelines had not been changed on October 15th and on how one decides the materiality issue.
“So regarding the October 15th harassment policy that Ms. Armenta submitted,” White said, “ I don’t know what time of day that policy was pulled but as YouTube indicated in our declaration and our brief, the policy was changed as we indicated before the plaintiffs’ content was removed. The change we are talking about was an addition of a specific example. It was not a change to the policy itself. The policy did not change or the TOS. YouTube simply made the policy more coherent and took an enforcement action consistent with it. It doesn’t matter ultimately when the change occurred. It was an addition to an example. I’d also like to clarify for the record your honor, the notice the plaintiffs received was specifically a notice to a YouTube account which is different from a Google account. The language in the account suspension and termination provision that plaintiffs are relying on refers to a Google account and that is not what is at issue here.”
(Here Hartwig also adds as a sidenote that Facebook does this too. They would tell him and other content moderators to action things a certain way without changing the policy. Or they wouldn’t update the policy until later.)
White then added, “And finally your honor and I appreciate that you seem to recognize this, it’s on the plaintiffs to show that there wasn’t a breach that violated the Community Guidelines. And whether or not the content remains on YouTube, these are their videos that they uploaded. It’s unlikely they do not have copies. At least they should remember the content to give the court an indication as to how the videos comply with the harassment policy, and I think that it is very telling that they have chosen not to do so.”
At this point, an hour later, White said she was drawing this session to a close.
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