# Newman v. Google LLC

> District Court, N.D. California · August 17, 2023

URL: https://www.frixlaw.com/law-library/cases/10076167

## Case

- **Court:** District Court, N.D. California
- **Decided:** August 17, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA

KIMBERLY CARLESTE NEWMAN, et Case No. 20-cv-04011-VC
al.,

Plaintiffs, ORDER GRANTING MOTION TO
DISMISS THE FIFTH AMENDED
v. COMPLAINT

GOOGLE LLC, et al., Re: Dkt. No. 146
Defendants.

The plaintiffs in this proposed class action are African American and Hispanic content
creators who allege that YouTube’s content-moderating algorithm discriminates against them
based on their race. Specifically, they allege that their YouTube videos are restricted when
similar videos posted by white users are not. This differential treatment, they believe, violates a
promise by YouTube to apply its Community Guidelines (which govern what type of content is
allowed on YouTube) “to everyone equally—regardless of the subject or the creator’s
background, political viewpoint, position, or affiliation.” The plaintiffs thus bring a breach of
contract claim against YouTube (and its parent company, Google). They also bring claims for
breach of the implied covenant of good faith and fair dealing, unfair competition, accounting,
conversion, and replevin.
YouTube’s motion to dismiss is granted. Although the plaintiffs have adequately alleged
the existence of a contractual promise, they have not adequately alleged a breach of that promise.
The general idea that YouTube’s algorithm could discriminate based on race is certainly
plausible. But the allegations in this particular lawsuit do not come close to suggesting that the
plaintiffs have experienced such discrimination. The breach of contract claim must therefore be
dismissed. As for the remaining claims, the current version of the complaint adds nothing to
remedy the deficiencies identified in prior rulings, and so those claims must also be dismissed.
See Newman v. Google LLC, No. 20-cv-4011-VC, 2022 WL 2556862, at *1–*3 (N.D. Cal. July
8, 2022); Newman v. Google LLC, No. 20-cv-4011-VC, 2022 WL 20438233, at *2–*3 (N.D.
Cal. Nov. 28, 2022).
The plaintiffs have had six opportunities to adequately plead their claims, and counsel
made clear at the hearing for this motion that this is “the best I got.” Dkt. No. 154 at 31; see also
Dkt. No. 154 at 17, 34. Dismissal is therefore with prejudice.
I
A. Procedural History
The plaintiffs brought this case against YouTube and Google in June 2020, and it was
assigned to Judge Koh. Early on, the case had a constitutional orientation—the plaintiffs alleged
that YouTube’s racially discriminatory treatment violated the First Amendment of the United
States Constitution as well as Article I, Section 2 of the California Constitution. See Dkt. No. 27.
They also pressed claims for discrimination under 42 U.S.C. § 1981 and the Unruh Civil Rights
Act, for false advertising, unfair business practices, breach of the implied covenant of good faith
and fair dealing, promissory estoppel, breach of contract, conversion, replevin, accounting, and
for a declaratory judgment as to the scope and constitutionality of section 230 of the
Communications Decency Act. See Dkt. No. 27.
That version of the complaint was dismissed, largely because YouTube is not a state
actor, and because the plaintiffs failed to allege that any discrimination by YouTube was
intentional, as required for the section 1981 claim. See Newman v. Google LLC, No. 20-cv-4011-
LHK, 2021 WL 2633423, at *5–*9 (N.D. Cal. June 25, 2021); see also id. at *12–*13 (declining
to exercise supplemental jurisdiction over the state law claims after dismissing the federal
claims). Three more amendments and two dismissals later (by the undersigned judge after the
case was reassigned), this case has shed its intentional discrimination and constitutional claims,
becoming—first and foremost—a breach of contract dispute.1
B. The Allegations
To upload a video to YouTube or create a YouTube channel, users must agree to the
platform’s Terms of Service, which incorporate the Community Guidelines. The Community
Guidelines govern what type of content is allowed on YouTube. They address topics such as
graphic content, vulgar language, hate speech, and misinformation, to name only a few. While
YouTube reserves broad discretion with respect to content moderation on its platform, the
Overview section of the Community Guidelines contains the following language: “We enforce
these Community Guidelines using a combination of human reviewers and machine learning,
and apply them to everyone equally—regardless of the subject or the creator’s background,
political viewpoint, position, or affiliation.” Dkt. No. 144-8 at 3.
The plaintiffs allege that this language constitutes an enforceable promise to engage in
race-neutral content moderation. They further allege that YouTube’s machine-learning algorithm
violates this contractual promise by subjecting their videos to adverse moderation decisions
while treating similar videos posted by white users more favorably. This differential treatment
occurs, according to the complaint, because “YouTube uses [its] algorithm[] to get the
information that advertisers want in order to gather and analyze information about creators and
viewers based on Plaintiffs’ Identities, including Race.” Dkt. No. 144 at 22. “[T]his aggregated
personal data is then embedded in [the] algorithm[],” resulting in an algorithm “tainted with and
by identity based information and bias.” Dkt. No. 144 at 8, 34.
The plaintiffs allege that three different types of content-moderation decisions are
infected with race discrimination: removal of videos from the platform; restrictions on who can
view videos on the platform; and demonetization of videos, which is when YouTube prevents
users from making money off their content. Although the plaintiffs purport to base their breach

1 The plaintiffs have adequately pleaded jurisdiction under the Class Action Fairness Act, and so
their state law claims are properly before the Court. See Newman v. Google LLC, No. 20-cv-
4011-VC, 2022 WL 2556862, at *1 (N.D. Cal. July 8, 2022).
of contract claim on all three types of decisions, the complaint focuses almost entirely on
restrictions—that is, decisions by YouTube’s algorithm to tag the plaintiffs’ videos for exclusion
in “Restricted Mode.” Restricted Mode is a setting that shields users who enable it—for example,
a school administration wanting to protect its underaged students—from content that has been
tagged by YouTube’s algorithm as inappropriate for certain audiences. As to removals and
demonetizations, the complaint offers conclusory allegations lacking specific factual content.
See, e.g., Dkt. No. 144 at 49, 51, 56. Indeed, only two specific removals are alleged, but one
appears to have taken place before the relevant promise was made, and no basis is offered to
support the conclusion that the other took place because of the plaintiff’s race. See Dkt. No. 144
at 38, 40. This ruling therefore focuses on the allegations regarding restrictions.
II
A. The Promise
To state a claim for breach of contract under California law, the plaintiffs must
adequately allege: (1) the existence of a contract; (2) performance by the plaintiffs or excuse for
nonperformance; (3) breach by the defendant; and (4) damages resulting from the defendant’s
breach. Oasis W. Realty, LLC v. Goldman, 51 Cal. 4th 811, 821 (2011); First Commercial
Mortgage Company v. Reece, 89 Cal. App. 4th 731, 745 (2001).
As to the first element, YouTube concedes that its Terms of Service, which incorporate
the Community Guidelines, represent a valid agreement supported by adequate consideration and
mutually assented to by the parties. See Dkt. No. 148 at 7. But it argues that the specific language
relied on by the plaintiffs—the language pledging to treat everyone equally regardless of race—
is not enforceable. For support, YouTube turns to a recent decision by the California Court of
Appeal: Prager University v. Google LLC, 85 Cal. App. 5th 1022 (2022) (“Prager II”). YouTube
argues that Prager II resolves the matter because it held that YouTube reserves “unfettered and
unilateral discretion” as to content moderation and rejected the argument that YouTube’s Terms
of Service contemplate “identity neutral content moderation and access” or that “defendants are
bound by a contractual promise to filter content neutrally.” Id. at 1039.
But elsewhere in its briefs, YouTube asserts that the language relevant to this case was
not added to the Community Guidelines until late 2021. See Dkt. Nos. 146 at 11–12; 156 at 22.
Taking judicial notice of earlier versions of the Community Guidelines filed in this case and in a
similar case in this district, YouTube appears to be correct that the relevant language was not
added until sometime between August 12, 2021, and November 16, 2021. Compare Dkt. No. 29-
5 (November 1, 2020, version without the relevant language), and Divino Group LLC v. Google
LLC, No. 19-cv-4749-VKD, Dkt. No. 77-3 (August 12, 2021, version without the relevant
language), with Dkt. No. 144-8 (November 16, 2021, version with the relevant language). This
explains why Prager II contains no discussion of this language—the complaint under review in
that case was filed in May 2019, years before the relevant language was added to the Community
Guidelines. See Prager University v. Google LLC, No. 19-cv-340667, 2019 WL 8645795 (Cal.
Super. May 20, 2019) (First Amended Complaint). Prager II is therefore largely irrelevant.
YouTube also relies on Block v. eBay, Inc., 747 F.3d 1135 (9th Cir. 2014). There, the
Ninth Circuit held that a provision in eBay’s User Agreement explaining that “[eBay is] not
involved in the actual transaction between buyers and sellers” did not constitute an enforceable
promise by eBay. Id. at 1138. The court reasoned that the provision contained no future-tense,
promissory language and could only be interpreted as “a general description of how eBay’s
auction system works,” not as a promise not to be involved in the transaction. Id.
Block does not stand for the proposition that only future-tense statements can constitute
binding promises. See id. (citing cases where present-tense statements constituted binding
promises). In context, the statement in the Community Guidelines does not serve merely an
“explanatory function” like the statement in Block. Id. Notwithstanding its present tense, the
statement reads like a guarantee that users can expect identity-neutral treatment from YouTube
when they use its service. Moreover, the statement is definite enough for the Court to ascertain
YouTube’s obligation under the contract (it must avoid identity-based differential treatment in its
content moderation) and to determine whether it has performed or breached that obligation. See
Weddington Productions, Inc. v. Flick, 60 Cal. App. 4th 793, 811 (1998). The plaintiffs have
therefore adequately alleged an enforceable promise. See Divino Group LLC v. Google LLC, No.
19-cv-4749-VKD, 2023 WL 4372701, at *5 (N.D. Cal. July 5, 2023) (considering the same
Community Guidelines language in a similar case and reaching a similar conclusion).
B. The Alleged Breach
The plaintiffs fail, however, to adequately allege a breach of that promise. YouTube’s
promise is to not treat users who post similar content differently based on individual
characteristics like race. As discussed more fully at the hearing on this motion, the general idea
that YouTube’s algorithm could apply the Community Guidelines in a racially discriminatory
manner is plausible. But at the motion to dismiss stage, the plaintiffs must do more than gesture
at plausible ideas in the abstract. They must allege sufficient factual content to give rise to a
reasonable inference that their content has been treated in a racially discriminatory manner by
YouTube’s algorithm. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
The plaintiffs rely primarily on a chart that purports to compare 32 of their restricted
videos to 58 unrestricted videos posted by white users. Dkt. No. 144 at 26–31. To begin with, the
plaintiffs have dug themselves into a bit of a hole by relying on such a small sample from the
vast universe of videos on YouTube. The smaller the sample, the harder it is to infer anything
other than random chance. But assuming a sample of this size could support a claim for race
discrimination under the right circumstances, the chart provided by the plaintiffs is useless.
As a preliminary matter, 26 of the 58 comparator videos were posted by what the
complaint describes as “Large Corporations.” The complaint alleges that “Large Corporation” is
a proxy for whiteness. See Dkt. No. 144 at 26–31; Dkt. No. 144 at 4 (defining, without support or
elaboration, “users who Defendants identify or classify as white” as “including large media,
entertainment, or other internet information providers who are owned or controlled by white
people, and for whom the majority of their viewership is historically identified as white”). The
plaintiffs have offered no principled basis for their proposition that corporations can be treated as
white for present purposes, nor have they plausibly alleged that YouTube actually identifies or
classifies corporations as white.
In terms of content, many of the comparisons between the plaintiffs’ restricted videos and
other users’ unrestricted videos are downright baffling. For example, in one restricted video, a
plaintiff attributes his recent technical difficulties in posting videos on YouTube to conscious
sabotage by the company, driven by animus against him and his ideas. The chart in the complaint
compares this restricted video with a tutorial on how to contact YouTube Support.2 In another
example, the chart compares a video where a plaintiff discusses the controversy surrounding
Halle Bailey’s casting as the Little Mermaid with a video of a man playing—and playfully
commenting on—a goofy, holiday-themed video game.3
Other comparisons, while perhaps not as ridiculous as the previous examples, nonetheless
hurt the plaintiffs. For instance, the chart compares plaintiff Osiris Ley’s “Donald Trump
Makeup Tutorial” with tutorials posted by two white users likewise teaching viewers how to
create Trump’s distinctive look. But there is at least one glaring difference between Ley’s video
and the comparator videos, which dramatically undermines the inference that the differential
treatment was based on the plaintiff’s race. About a minute and a half into her tutorial, Ley
begins making references to the Ku Klux Klan and describing lighter makeup colors as white
supremacy colors. Ley certainly appears to be joking around, likely in an effort to mock white
supremacists, but this would readily explain the differential treatment by the algorithm. See Dkt.
No. 144-8 (indicating the relevant Community Guidelines prohibition on hate speech, violent
criminal organizations, harassment, and other harmful or dangerous content).4

2 Compare Dr. SYN-Q, Is Someone at YouTube Subverting the Constitution?, YOUTUBE (Mar. 8,
2020), https://www.youtube.com/watch?v=47SZWsNMmwQ, with David Walsh Online,
YouTube Support – How to Contact YouTube, YOUTUBE (Apr. 15, 2014),
https://www.youtube.com/watch?v=h8-6QltZQlk.
3 Compare Nicole’s View, Halle Bailey & the New Little Mermaid Casting “Controversy”,
YOUTUBE (July 5, 2019), https://www.youtube.com/watch?v=iTsgfpOC7JM, with
TheGameSalmon, I'M TRAPPED IN A HOLIDAY NIGHTMARE!! | Helliday Limbo
(MicroHorrorArcade), YOUTUBE (Jan. 10, 2021),
https://www.youtube.com/watch?v=YcScpg9kDMk.
4 Compare Osyley, Donald Trump Makeup Tutorial, YOUTUBE (Mar. 15, 2016),
https://www.youtube.com/watch?v=b96JEAyqdPc, with Kat Sketch, Donald Trump Makeup
Tutorial!, YOUTUBE (Apr. 5, 2016), https://www.youtube.com/watch?v=ucn7KWJcilA, and
Trump the Internet, Donald Trump Makeup Tutorial, YOUTUBE (June 30, 2020),
https://www.youtube.com/watch?v=X01mNubQJx8.
Only a scarce few of the plaintiffs’ comparisons are even arguably viable. For example,
there is no obvious, race-neutral difference between Andrew Hepkins’s boxing videos and the
comparator boxing videos. Both sets of videos depict various boxing matches with seemingly
neutral voiceover commentary.5 The same goes for the comparisons based on Ley’s Halloween
makeup tutorial. It is no mystery why Ley’s video is restricted—it depicts graphic and realistic
makeup wounds. But it is not obvious why the equally graphic comparator videos are not also
restricted.6 YouTube suggests the difference lies in the fact that one of the comparator videos
contains a disclaimer that the images are fake, and the other features a model whose playful
expressions reassure viewers that the gruesome eyeball dangling from her eye socket is fake. But
the content is sufficiently graphic to justify restricting impressionable children from viewing it.
These videos are the closest the plaintiffs get to alleging differential treatment based on their
race.
But the complaint provides no context as to how the rest of these users’ videos are
treated, and it would be a stretch to draw an inference of racial discrimination without such
context. It may be that other similarly graphic makeup videos by Ley have not been restricted,
while other such videos by the white comparator have been restricted. If so, this would suggest
only that the algorithm does not always get it right. But YouTube’s promise is not that its
algorithm is infallible. The promise is that it abstains from identity-based differential treatment.
Another problem is that these restrictions occurred before YouTube added its promise to

5 Compare Dru Story News, Anthony Joshua’s Redemption | The Responsibility of Success,
YOUTUBE (Dec. 9, 2019), https://www.youtube.com/watch?v=68lsRzaRb4Y, and Dru Story
News, Canelo Versus GGG | Who Wins and Why, YOUTUBE (Sept. 15, 2018),
https://www.youtube.com/watch?v=bb84LElBrQU, with Whistle, 10-Year-Old Female Boxing
Prodigy, YOUTUBE (Oct. 22, 2019), https://www.youtube.com/watch?v=HtMdiNrsg00, and The
World of Boxing!, Instant Karma in Boxing | Oleksandr Usyk, YOUTUBE (Sept. 19, 2021),
https://www.youtube.com/watch?v=7l-TaLMZzZA.
6 Compare Osyley, Como hacer cortadas o heridas falsas con maquillaje paso a paso [How to
Make Fake Cuts or Wounds with Makeup Step by Step], YOUTUBE (Oct. 9, 2014),
https://www.youtube.com/watch?v=6O-BXCg0p7I, with ellimacs sfx makeup, Halloween Torn
Out Fake Eye Makeup Tutorial, YOUTUBE (Aug. 2, 2015),
https://www.youtube.com/watch?v=pRhQix-8VeA, and ellimacs sfx makeup, Easy Realistic
Wound Halloween Makeup Tutorial, YOUTUBE (Mar. 10, 2019),
https://www.youtube.com/watch?v=44nhQ48au5Q.
the Community Guidelines. The Fifth Amended Complaint alleges that Ley’s Halloween makeup
tutorial was restricted on December 28, 2022. Dkt. No. 144 at 31. But, as YouTube points out in
its supplemental brief, the plaintiffs alleged the restriction of this video in an earlier complaint
filed on September 21, 2020, long before the promise was added to the Guidelines. Dkt. No. 27
at 122. The same is true for other alleged restrictions. See Dkt. No. 21 at 82 (First Amended
Complaint, filed on August 17, 2020, alleging that Denotra Nicole Lewis’s “Halle Bailey & The
New Little Mermaid” video was already restricted); see also Dkt. No. 21 at 94–97 (suggesting
that Hepkins’s boxing videos were also restricted as of August 17, 2020). These restrictions
cannot support a breach of contract claim because YouTube cannot be liable for breaching a
promise it had not yet made.7
As for the rest of the complaint, only a few allegations—namely, allegations regarding
purported admissions made by YouTube in 2017—merit some discussion. The plaintiffs allege
that, in response to criticism by members of the queer community, Google’s Vice President of
Product Management, Johanna Wright, “acknowledged that its video content review tools were
‘filter[ing] out content belonging to individuals or groups based on gender, race, religion, or
sexual orientation.” Dkt. No. 144 at 22. They also allege that, a few months after Wright’s
alleged admission, YouTube “convened a meeting of approximately 15 aggrieved YouTube
creators … to discuss and explain YouTube’s inherent bias and classification of video content
filtering based on identity[.]” Dkt. No. 144 at 22. At this meeting, YouTube’s representatives
allegedly “stated” that the company’s “algorithms and computerized filtering tools discriminate
and ‘target’ users like Plaintiffs based on their Identities, including Race, when making decisions

7 YouTube also argues that, even if these comparisons plausibly suggested differential treatment,
they would not support the plaintiffs’ claim for breach of contract, because the Community
Guidelines (and therefore the promise the plaintiffs rely on) apply only to removals. The Court
finds no support in the record for that proposition, and it finds support to the contrary. See Dkt.
No. 144-8 at 6 (identifying the act of “age-restrict[ing] content” as an “action [that] YouTube
take[s] for content that violates [the] Community Guidelines”); Dkt. No. 144-8 at 49 (similar);
Dkt. No. 144-13 at 3 (“YouTube monetization policies . . . include YouTube’s Community
Guidelines.” (emphasis added)). But because the plaintiffs fail to state a claim in any event, there
is no need to reach this issue.
regarding [monetization and restriction],” that they do not “consider only the content in the
video,” and that this “results in the ‘targeting’ of historically marginalized consumers, like
Plaintiffs, at rates that are substantially, materially, and disparately higher than those of white
users.” Dkt. No. 144 at 22–23.
These allegations are not meaningless. But they do not come close to making up for the
glaring deficiencies in the plaintiffs’ chart. First, the allegations are vague as to what exactly was
said. For example, the complaint purports to quote Wright, but it is not clear where Wright’s
words end and the plaintiffs’ recitation of legal buzzwords begins. See Dkt. No. 144 at 22
(opening quotation with the word “filter[ing]” but never closing the quotation). Similarly, the
plaintiffs attribute a great many (buzzword-laden) statements to YouTube’s representatives but
barely quote them.
Second, and more importantly, these alleged admissions were made in 2017, four years
before YouTube added its promise to the Community Guidelines. In machine-learning years,
four years is an eternity. There is no basis for assuming that the algorithm in question today is
materially similar to the algorithm in question in 2017. That’s not to say it has necessarily
improved—for all we know, perhaps it has worsened. The point is that these allegations are so
dated that their relevance is, at best, attenuated. Finally, these allegations do not directly concern
any of the plaintiffs or their videos. They are background allegations that could help bolster an
inference of race-based differential treatment if it were otherwise raised by the complaint. But, in
the absence of specific factual content giving rise to the inference that the plaintiffs themselves
have been discriminated against, there is no inference for these background allegations to
reinforce.
III
The motion to dismiss is GRANTED. Dismissal is with prejudice. Both sides are ordered
not to remove or otherwise make unavailable the videos cited in the complaint until the appellate
process has run its course.
IT IS SO ORDERED.
Dated: August 17, 2023
VINCE CHHABRIA
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10076167. Public record. Not legal advice.