The opinion
NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 26 2024
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERT F. KENNEDY, Jr., No. 23-3411
D.C. No.
Plaintiff - Appellant, 3:23-cv-03880-TLT
v.
MEMORANDUM*
GOOGLE LLC, a Delaware
corporation; YOUTUBE, LLC, a Delaware
corporation,
Defendants - Appellees.
Appeal from the United States District Court
for the Northern District of California
Trina L. Thompson, District Judge, Presiding
Argued and Submitted May 14, 2024
San Francisco, California
Before: CALLAHAN and SANCHEZ, Circuit Judges, and KRONSTADT, District
Judge.**
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable John A. Kronstadt, United States District Judge for the
Central District of California, sitting by designation.
After YouTube1 removed at least two of Robert F. Kennedy, Jr.’s videos for
allegedly containing misinformation about vaccines, Kennedy filed this action
asserting that the removals violated his rights under the First Amendment because
YouTube’s actions should be fairly treated as action by the government. The
District Court denied Kennedy’s request for a preliminary injunction finding that
he had not shown that Google was a “state actor.” Kennedy appeals from the
denial. We have appellate jurisdiction pursuant to 28 U.S.C. § 1292, and we
affirm.
Injunctive relief requires assessment of the following factors: (1) likelihood
of success on the merits, (2) likelihood of irreparable harm absent an injunction,
(3) a balance of equities, and (4) whether the injunction is in the public interest.
Winter v. Nat. Res. Def. Council, 555 U.S. 7, 20 (2009). We employ a sliding scale
allowing the issuance of a preliminary injunction where serious questions going to
the merits are raised and the balance of hardships tips sharply in the plaintiff’s
favor. All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1133–34 (9th Cir.
2011). A denial of a preliminary injunction is reviewed for abuse of discretion.
Am. Hotel & Lodging Ass’n v. City of Los Angeles, 834 F.3d 958, 962 (9th Cir.
2016).
1
YouTube, LLC is a subsidiary of Google LLC. “YouTube” and “Google”
are used interchangeably by the parties and in this memorandum.
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A private company is not ordinarily subject to the First Amendment’s
constraints. See Prager University v. Google, LLC, 951 F.3d 991, 996 (9th Cir.
2020). Accordingly, Kennedy premises his claims on the assertion that Google
was a “state actor” when it removed his videos. A private entity may be
considered a state actor when “the alleged constitutional violation was caused by
the ‘exercise of some right or privilege created by the State or by a rule of conduct
imposed by the State or by a person for whom the State is responsible.’”
O’Handley v. Weber, 62 F.4th 1145, 1156 (9th Cir. 2023) (quoting Lugar v.
Edmondson Oil Co., 457 U.S. 922, 937 (1982)).
Kennedy asserts that Google acted as a state agent under the nexus test or
the joint action test. A private entity may be a state actor under the nexus test
where it is shown that “government officials have ‘exercised coercive power or
[have] provided such significant encouragement, either overt or covert, that the
choice must in law be deemed to be that of the State.’” Id. at 1157 (quoting Blum
v. Yaretsky, 457 U.S. 991, 1004 (1982)). Alternatively, a private entity may be
shown to be a state actor under the joint action test “when the State ‘significantly
involves itself in the private parties’ actions and decisionmaking’ in a ‘complex
and deeply intertwined process.’” Id. at 1159 (quoting Rawson v. Recovery
Innovations, Inc., 975 F.3d 742, 753 (9th Cir. 2020)).
Google asserts that it is a private entity with its own First Amendment rights
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and that it removed Kennedy’s videos on its own volition pursuant to its own
misinformation policy and not at the behest of the federal government. Kennedy
has not rebutted Google’s claim that it exercised its independent editorial choice in
removing his videos.2 Nor has Kennedy identified any specific communications
from a federal official to Google concerning the removed Kennedy videos, or
identified any threatening or coercive communication, veiled or otherwise, from a
federal official to Google concerning Kennedy.3 As Kennedy has not shown that
Google acted as a state actor in removing his videos, his invocation of First
Amendment rights is misplaced. The district court’s denial of a preliminary
injunction is AFFIRMED.
2
See Moody v. NetChoice, LLC, 144 S. Ct. 2383, 2401–02 (2024) (stating that
exercising editorial discretion in the selection and presentation of content is speech
activity).
3
See Murthy v. Missouri, 144 S. Ct. 1972, 1987 (2024) (noting that “the
platform[], acting independently, had strengthened [its] pre-existing content-
moderation policies before the Government . . . got involved.”).
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