Petition for Writ of Certiorari — Laura Loomer, Individually and as a Candidate for United States Congress, et al., Petitioners v. Mark Zuckerberg, Individually and as CEO of Meta Platforms, Inc., et al.

APPENDIX TABLE OF CONTENTS

OPINIONS AND ORDERS

Memorandum Opinion, U.S. Court of Appeals

for the Ninth Circuit (March 27, 2025) ............. 1a

Order Granting Motions to Dismiss,

United States District Court,

Northern District of California

(September 30, 2023).......................................... 7a

App.1a

MEMORANDUM OPINION, U.S. COURT OF

APPEALS FOR THE NINTH CIRCUIT

(MARCH 27, 2025)

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

________________________

LAURA LOOMER, as an individual and in her

capacity as a Candidate for United States Congress;

LAURA LOOMER FOR CONGRESS, INC.,

Plaintiffs-Appellants,

v.

MARK ZUCKERBERG, in his capacity as CEO of

Meta Platforms, Inc. and as an individual;

TWITTER, INC.; JACK DORSEY, in his capacity as

former CEO of Twitter, Inc. and as an individual;

META PLATFORMS, INC.; THE PROCTER &

GAMBLE COMPANY, and DOES 1-100, individuals,

Defendants-Appellees.

________________________

No. 23-3158

D.C. No. 3:22-cv-02646-LB

Appeal from the United States District Court

for the Northern District of California

Laurel Beeler, Magistrate Judge, Presiding

Argued and Submitted March 19, 2025

San Francisco, California

App.2a

Before: S.R. THOMAS, OWENS,

and COLLINS, Circuit Judges.

MEMORANDUM*

Laura Loomer and Laura Loomer for Congress,

Inc. (collectively “Loomer”) appeal the dismissal of

their civil claims under the Racketeer Influenced and

Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1961

et seq., against (1) Mark Zuckerberg and Meta Platforms (formerly known as Facebook) (collectively

“Meta”), (2) Jack Dorsey and X Corp. (formerly known

as Twitter) (collectively “X Corp”), (3) the Procter &

Gamble Company (“Procter & Gamble”), and (4) Does

1–100.

We review a dismissal for failure to state a claim

de novo. Dyroff v. Ultimate Software Grp., Inc., 934

F.3d 1093, 1096 (9th Cir. 2019). In reviewing a motion

to dismiss, we accept all well-pleaded factual allegations in the complaint as true. Ashcroft v. Iqbal, 556

U.S. 662, 678–79 (2009). To avoid a dismissal under

Federal Rule of Civil Procedure 12(b)(6), a complaint

must plead “enough facts to state a claim to relief that

is plausible on its face.” Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 570 (2007). We affirm.

Loomer alleges two claims against the Defendants:

a substantive civil RICO violation and a RICO

conspiracy violation. Loomer alleges that all Defendants are part of the “Community Media Enterprise,”

a “wide-ranging conspiracy . . . to unlawfully censor

* This disposition is not appropriate for publication and is not

precedent except as provided by Ninth Circuit Rule 36-3.

App.3a

conservative voices and interfere with American

elections.”1

I

The district court correctly concluded that Loomer

failed to state plausible RICO claims.

A

A substantive civil RICO claim has five elements:

“(1) conduct (2) of an enterprise (3) through a pattern

(4) of racketeering activity (known as ‘predicate acts’)

(5) causing injury to the plaintiff’s ‘business or

property.’” Grimmett v. Brown, 75 F.3d 506, 510 (9th

Cir. 1996) (citing 18 U.S.C. §§ 1964(c), 1962(c)).

Loomer fails to plausibly allege the existence of a

RICO “enterprise.” “To show the existence of an

enterprise under the second element, plaintiffs must

plead that the enterprise has (A) a common purpose,

1 This action is Loomer’s fourth lawsuit about this alleged

conspiracy. See Freedom Watch, Inc. v. Google, Inc., 368 F. Supp.

3d 30, 34 (D.D.C. 2019) (explaining that Loomer and a nonprofit

claimed that Facebook, Twitter, and other technology companies

have “work[ed] together to ‘intentionally and willfully suppress

politically conservative content’”), aff’d, 816 F. App’x 497 (D.C.

Cir. 2020); Illoominate Media, Inc. v. CAIR Found., No. 19-CIV81179-RAR, 2019 WL 13168767, at *1–2 (S.D. Fla. Nov. 19, 2019)

(explaining that Loomer sued Twitter, but not Facebook, over

Twitter’s decision to ban her); Loomer v. Facebook, Inc., No. 9:19cv-80893-RS, 2020 WL 2926357, at *1 (S.D. Fla. Apr. 13, 2020)

(explaining that Loomer sued Facebook, but not Twitter, over

Facebook’s decision to ban her and label her a “dangerous

individual”). All three previous lawsuits were dismissed. See

FreedomWatch, 368 F. Supp. 3d at 33–34; Illoominate Media,

2019 WL 13168767, at *1 & n.1; Loomer v. Facebook, Inc., No.

4:20-cv-03154-HSG (N.D. Cal. Aug. 13, 2020), Dkt. No. 88.

App.4a

(B) a structure or organization, and (C) longevity

necessary to accomplish the purpose.” Eclectic Props.

E., LLC v. Marcus & Millichap Co., 751 F.3d 990, 997

(9th Cir. 2014) (citing Boyle v. United States, 556 U.S.

938, 946 (2009)).

Here, Loomer claims a RICO violation against

Meta and X Corp. for their content-based actions in

managing their platforms and against Procter &

Gamble for doing business with Meta and X Corp.

Meta and X Corp. operate social media platforms, on

which users place content under terms and conditions

established by the corporations and to which users

agree as a condition of the corporations allowing them

to place content on the platforms. The gravamen of

Loomer’s complaint is to hold Meta and X Corp liable

for deciding whether to block or restrict certain

content provided by others. Loomer claims a RICO

violation against Procter & Gamble for doing business

with Meta and X Corp by placing advertisements on

their platforms.

The allegations in Loomer’s complaint are not

sufficient to establish an “enterprise” within the meaning of RICO. In order to constitute an “enterprise,” the

plaintiff must allege “a continuing unit that functions

with a common purpose.” Boyle, 556 U.S. at 948. The

operative complaint simply alleges that there was a

RICO enterprise because the Defendants had the

“common goals of making money, acquiring influence

over other enterprises and entities, and other

pecuniary and non-pecuniary interests.” These

allegations are not sufficient to plausibly allege Defendants constitute “a continuing unit that functions with

a common purpose.” Id.

App.5a

In addition, Loomer does not plausibly allege an

enterprise structure. The complaint only alleges that

the Defendants, including Does 1-100, “along with

YouTube and Google and others” constitute an

enterprise, without any allegations of an actual

structure.

Further, there are no allegations of the alleged

enterprise’s longevity in the complaint. In briefing,

Loomer only contends the longevity requirement was

satisfied because of the Defendants’ alleged “longlasting relationship.”

With the complaint lacking plausible allegations

of a common purpose, a structure, and the longevity

necessary to accomplish the purpose, the district court

properly concluded that the complaint fails to state a

viable substantive RICO violation.2 See Eclectic Props.

E., LLC, 751 F.3d at 997; Boyle, 556 U.S. at 946.

B

The complaint also fails to state a RICO conspiracy claim. “Plaintiffs cannot claim that a conspiracy

to violate RICO existed if they do not adequately plead

a substantive violation of RICO.” Howard v. Am.

Online Inc., 208 F.3d 741, 751 (9th Cir. 2000). Thus,

for the reasons already stated, the district court

correctly dismissed the RICO conspiracy claim.

II

“We have held that in dismissals for failure to

state a claim, a district court should grant leave to

2 Because the complaint fails to plausibly allege a RICO enterprise,

we need not address whether it satisfies any other RICO

requirement.

App.6a

amend . . . unless it determines that the pleading

could not possibly be cured by the allegation of other

facts.” Cook, Perkiss & Liehe, Inc. v. N. Cal. Collection

Serv. Inc., 911 F.2d 242, 247 (9th Cir. 1990). “It is

generally our policy to permit amendment with

‘extreme liberality,’ although when a district court has

already granted a plaintiff leave to amend, its

discretion in deciding subsequent motions to amend is

‘particularly broad.’” Chodos v. W. Publ’g Co., 292 F.3d

992, 1003 (9th Cir. 2002) (citations omitted).

Here, the district court was within its discretion to

deny Loomer’s motion to amend. Loomer had already

amended the complaint once, so the district court had

broad discretion to deny the second amendment. The

district court correctly determined that the new

allegations in the Second Amended Complaint would

not affect the decision to dismiss the complaint.

III

In sum, the district court properly dismissed the

amended complaint and denied leave to amend. Given

our resolution of these issues, we need not, and do not,

reach any other issue raised by the parties.3

AFFIRMED.

3 The district court also concluded that Loomer’s claims against

Meta and X Corp were barred by res judicata and Section 230 of

the Communications Decency Act, 47 U.S.C. § 230(c)(1). Given

our resolution of the claims against all Defendants, it is

unnecessary for us to reach those issues.

App.7a

ORDER GRANTING MOTIONS TO DISMISS

(SEPTEMBER 30, 2023)

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION

________________________

LAURA LOOMER, et al.,

Plaintiffs,

v.

MARK ZUCKERBERG, et al.,

Defendants.

________________________

Case No. 22-cv-02646-LB

Re: ECF Nos. 79–81, 114

Before: Laurel BEELER,

United States Magistrate Judge.

ORDER GRANTING MOTIONS TO DISMISS

INTRODUCTION

The plaintiff is a former congressional candidate

who was banned from Twitter and Facebook in 2018

and 2019 for alleged hateful conduct and for appearing

with others banned for hateful conduct. She sued

Facebook and Twitter over those bans several times

before. In this case, she alleges that providers of

social-media platforms, Procter & Gamble (which

App.8a

advertises on those platforms), and unnamed government officials constitute a racketeering enterprise that

“unlawfully censors conservative voices and interfere[s]

with American elections.” She claims that the enterprise violates the Racketeer Influenced and Corrupt

Organizations (RICO) Act by engaging in interference

with commerce by threats or violence, interstate transportation in aid of racketeering, wire fraud, providing

material support to terrorists, and advocating overthrow of the government.

The plaintiff sued the members of the alleged

enterprise: Mark Zuckerberg, Meta Platforms (Facebook), Jack Dorsey, X Corp. (Twitter), and Procter &

Gamble. The defendants moved to dismiss the First

Amended Complaint (FAC) under Federal Rule of

Civil Procedure 12(b)(6). The Twitter and Facebook

defendants contend that the claims are barred by the

doctrine of res judicata and § 230 of the Communications Decency Act, and all defendants contend that the

plaintiff cannot plausibly plead RICO claims. In

addition to opposing the motions to dismiss, the

plaintiff moved for leave to amend her complaint to

add new allegations, which are mostly about internal

Twitter documents that allegedly show coordination

between Twitter and the federal government.

The court grants the motions to dismiss with

prejudice because res judicata bars the claims against

Twitter and Facebook, § 230 also bars those claims,

and the RICO claims are futile.

App.9a

STATEMENT

1. The Alleged Enterprise and its Banning

the Plaintiff from Facebook and Twitter

The plaintiff, who lives in Florida, ran for Congress

in 2020 and 2022. In 2020, she was the Republican

nominee in the general election to represent Florida’s

21st congressional district in the U.S. House of

Representatives.1 In 2022, she ran in the Republican

primary election for Florida’s 11th congressional

district.2 She is the CEO of Laura Loomer for Congress,

Inc., which is also a plaintiff in this case.3

Defendants X Corp. (Twitter) and Meta Platforms

(Facebook) operate social-media platforms that are

“the new public town square.”4 Mr. Zuckerberg is the

Chairman and CEO of Facebook.5 Mr. Dorsey is the

former CEO of Twitter.6 The Procter & Gamble

Company is an Ohio corporation that advertises on

Twitter and Facebook.7 “Defendants Does 1–100 are

persons within the [FBI], and potentially others

1 First Am. Compl. (FAC) – ECF No. 69 at 3 (¶¶ 5–6). Citations

refer to material in the Electronic Case File (ECF); pinpoint

citations are to the ECF-generated page numbers at the top of

documents.

2 Id. at 4 (¶ 7).

3 Id. (¶¶ 8, 10).

4 Id. at 4–5 (¶¶ 11, 13), 9–10 (¶¶ 25–26, 30–31); Corp. Disclosure

Statement – ECF No. 123.

5 FAC – ECF No. 69 at 4 (¶ 12).

6 Id. at 5 (¶ 14).

7 Id. at 5 (¶¶ 15–16), 71–72 (¶¶ 238–39).

App.10a

within the Executive Branch of the United States

government and corporate America, including executives and advertising officials at [Procter] & Gamble,

who conspired with other [d]efendants to commit the

[alleged] unlawful acts[.]”8

The plaintiff alleges that the defendants constitute

an enterprise engaged in a pattern of racketeering.

The general premise is that “big tech” companies and

the U.S. government are conspiring to ban conservatives from social-media platforms, and thereby interfere

in elections, by “fraudulently us[ing] the pretext of

‘hate speech.’”9 The plaintiff is allegedly “one of the

primary victims of that conspiracy.”10

On August 12, 2018, Facebook suspended the

plaintiff for thirty days.11 On November 21, 2018,

Twitter banned the plaintiff “for ‘hateful’ conduct.”12

On May 2, 2019, Facebook banned the plaintiff and

others after designating them as “dangerous individuals” due to “their alleged off-platform associations

with affiliates of the Proud Boys.”13 The plaintiff had

appeared with Gavin McInnes and praised Faith

Goldy, both designated previously by Facebook as

“hate figures.”14

8 Id. at 4 (¶ 16).

9 Id. at 2–3 (¶¶ 2–3), 11–12 (¶ 37).

10 Id. at 3 (¶ 4).

11 Id. at 66 (¶ 216).

12 Id. (¶ 217).

13 Id. at 48 (¶ 160).

14 Id. at 66 (¶ 218).

App.11a

On August 2, 2019, the plaintiff announced her

candidacy for the Republican nomination for Florida’s

21st congressional district.15 Her campaign created a

Facebook page for her “as a candidate rather than a

private citizen” on November 11, 2019.16 But the next

day, Facebook banned that page “and subsequently

deleted all messages and correspondence with the

campaign.”17 This was allegedly done “under the pretext of violations of [Facebook’s] ‘hate speech policy.’”18

On November 14, 2019, in response to inquiries about

the plaintiff and her campaign being banned,

Facebook changed its policy on political candidates to

exclude candidates who had already been banned.19

Later, in July 2020, the plaintiff was told that if a

Political Action Committee tried to promote her

campaign on Facebook with ads, the ads “would be

taken down.”20 The next day, that happened, and

Facebook allegedly adopted a “new policy . . . that

nothing about [the plaintiff] is permitted on Facebook,

and that for the duration of the election cycle[,] the

[plaintiff’s] campaign [would] not have access to run

any of its own ads.”21

15 Id. at 67 (¶ 219).

16 Id. at 68 (¶ 225).

17 Id. (¶ 226).

18 Id. at 69 (¶ 227).

19 Id. (¶ 230).

20 Id. at 72 (¶ 241).

21 Id. at 72–73 (¶¶ 242, 244).

App.12a

No other federal candidate in the country was

banned from advertising on Facebook.22 Twitter also

did not allow the plaintiff to use its platform during

the election.23 At the time, the pandemic “mandate[ed]

reliance on digital and social media to reach and

interact with prospective voters.”24 On August 18,

2020, the plaintiff won the Republican primary election.25 Her Democratic opponent Lois Frankel advertised on Facebook throughout the campaign, which

allegedly gave Ms. Frankel an unfair advantage.26

Ms. Frankel won the election in November 2020.27

The plaintiff also ran in the Republican primary

election for Florida’s 11th congressional district prior

to the 2022 mid-term elections. She sought to unseat

forty-year incumbent Daniel Webster, and she “outfundraised” him consistently. As in 2020, her campaign was “the only de-platformed campaign in the

nation.” In August 2022, Mr. Webster won the primary

election by 5,210 votes, “the smallest margin for any

incumbent who ran for re-election” in Florida.28

There are also allegations about defendant

Procter & Gamble. On April 11, 2019, at the annual

meeting of the Association of National Advertisers,

22 Id. at 72 (¶ 245).

23 Id. at 74 (¶ 247).

24 Id. at 69–70 (¶¶ 231–32).

25 Id. at 73 (¶ 246).

26 Id. at 72–73 (¶¶ 242–43).

27 Id. at 74 (¶ 248).

28 Id. at 74–75 (¶¶ 249–51).

App.13a

Procter & Gamble’s Chief Brand Officer “announced

the creation of a ‘New Media Supply Chain’ wherein

[Procter & Gamble] would require advertising platforms to ‘prove’ that their content was ‘under their

complete control.’”29 In May 2019 (the same month

the plaintiff was banned from Facebook for her

affiliation with the Proud Boys), Procter & Gamble

allegedly demanded that Facebook designate a list of

individuals as “dangerous” and ban them unless they

“disavowed the Proud Boys.”30 Later, in June 2020,

Procter & Gamble’s Chief Brand Officer said that

Procter & Gamble would not advertise “on or near

content that we determine is hateful, denigrating or

discriminatory.”31 “Where we determine our standards

are not met, we will take action, up to and including

stopping spending, just like we’ve done before.”32 On

the same day, Facebook said that it routinely discusses

policy matters with advertisers and would continue

doing so.33

The FAC has allegations about government officials. In 2019, the FBI red-flagged the plaintiff in its

“[NICS] database,” causing her to be prohibited from

possessing a firearm.34 In the weeks leading up to the

2020 presidential election, Facebook allegedly

“algorithmically suppressed stories about the Hunter

29 Id. at 70 (¶ 233).

30 Id. at 70–71 (¶¶ 234–35).

31 Id. at 71 (¶ 237).

32 Id. at 72 (¶ 239).

33 Id. at 71 (¶ 236).

34 Id. at 79 (¶ 261).

App.14a

Biden laptop scandal” at the FBI’s request or warning.35 And COVID-19 vaccine skeptic Alex Berenson

was allegedly banned from Twitter at the White

House’s request.36

2. The Alleged Predicate Acts

The plaintiff alleges that the racketeering enterprise has engaged in the following criminal acts (or

“predicate acts”): interference with commerce by threats

or violence, 18 U.S.C. § 1951; interstate transportation

in aid of racketeering, id. § 1952; wire fraud, id.

§ 1343; providing material support to terrorists, id.

§ 2339B; and advocating overthrow of the government,

id. § 2385.

As to interference with commerce by threats or

violence, the plaintiff alleges that Facebook and Google

induce changes in their users’ behavior “by the threat

of banning and labeling.” For example, when Facebook

users try to share a post that has been fact-checked,

Facebook displays a warning that “[p]ages and websites

that repeatedly publish or share false news will see

their overall distribution reduced and [will] be

restricted in other ways.” Google induced the website

Zero Hedge to delete much of its comment section by

telling Zero Hedge that if it did not do so, it would not

be able to earn revenue through Google ads.37 And the

plaintiff alleges that Facebook threatened to ban her

and label her a “dangerous individual” to compel her

35 Id. at 2 (¶ 1), 76–77 (¶¶ 254–55, 258).

36 Id. at 2–3 (¶ 2), 78 (¶ 259).

37 Id. at 80–84 (¶¶ 262–78).

App.15a

to refrain from associating with other people labeled

by the defendants as dangerous.38

In support of her claim of interstate transportation in aid of racketeering, the plaintiff alleges

that Facebook has banned or limited hate speech and

false content. In September 2019, Facebook removed

two posts by the head of the “Angel Families” organization and permanently removed the group’s

donation button because the posts violated Facebook’s

hate-speech policy. In August 2020, Facebook banned

ads by the “Committee to Defend the President” due

to the Committee’s “repeated sharing of content

determined by third-party fact-checkers to be false.”39

As for the plaintiff, the defendants allegedly exposed

her to disgrace to compel her “to refrain from

associating or speaking.”40

The plaintiff also asserts wire fraud. She alleges

that “Facebook and Procter & Gamble schemed . . . to

deprive [her] of honest services due to her as a user of

Facebook.” Also, during the 2020 election campaign,

Facebook allegedly falsely promised that candidates

would not be subject to restrictions “as a way to

procure millions of dollars in advertisement purchases,”

but then “changed its policies to subject [Donald

Trump’s Facebook] advertisements to third-party

review and censorship.”41

38 Id. at 110–11 (¶ 365).

39 Id. at 84–87 (¶¶ 279–87).

40 Id. at 112 (¶ 370).

41 Id. at 87–92 (¶¶ 288–305), 109–10 (¶ 362).

App.16a

For the predicate act of providing material support

to terrorists, the plaintiff alleges that “Hezbollah and

Hamas maintained a widespread presence on Facebook, YouTube and Twitter.” A Hamas television

station and leaders of each organization had accounts

on Facebook and Twitter. On September 18, 2019,

Facebook allegedly “was found to have automatically

generated hundreds of business pages promoting the

terrorist groups ISIS and Al Qaida” and allowed those

pages to remain online for up to six weeks. In October

2019, a U.S. policy director for Twitter said that

“Twitter allows accounts associated with political arms

of groups designated by the U.S. government as

‘foreign terrorist organizations.’” Taliban supporters

and spokesmen also maintained accounts on Facebook

and Twitter.42

The last alleged predicate act is advocating overthrow of the government. Facebook “facilitated” the

group “Abolish ICE Denver” when it “organize[d]

gatherings outside the home of ICE warden Johnny

Choate” and “post[ed] direct threats, such as ‘FIRE

TO THE PRISON.’” Facebook “refused to remove a

page celebrating ‘dead cops’ titled ‘The Only Good Cops

Are Dead Cops.’” On January 7 and 8, 2021, Facebook

and Twitter banned Donald Trump’s accounts. And in

August 2021, members of the Taliban used Twitter “to

provide updates and propaganda messaging in

furtherance and support of the Taliban[‘s] overthrow

of United States governmental entities and interests

in Afghanistan.”43

42 Id. at 93–97 (¶¶ 306–18), 113 (¶ 372).

43 Id. at 97–101 (¶¶ 319–30), 113–14 (¶¶ 374–76).

App.17a

3. Allegations in the Proposed Second

Amended Complaint

The plaintiff moved for leave to amend her

complaint and submitted a proposed Second Amended

Complaint (SAC).44 In the SAC, the defendants,

racketeering-enterprise members, predicate acts, and

claims are the same.45 The new allegations are as

follows.

In the months after Elon Musk became the owner

of Twitter in October 2022, internal Twitter

documents were released by independent journalists.

The documents allegedly show “Twitter’s coordination

with federal government agents (primarily the [FBI])

to fraudulently censor core political speech” protected

by the First Amendment, including the plaintiff’s, and

to “defraud hundreds of millions of American[s]

(including [the plaintiff]) by interfering in multiple

elections, including the 2020 [p]residential election.”46

In December 2022, Mr. Musk tweeted that “[t]he

evidence is clear and voluminous” that Twitter

interfered in the 2020 election. He also said that

Twitter was “both a social media company and a crime

scene.”47

The Twitter documents allegedly “revealed the

extraordinary measures that Twitter implemented to

44 SAC, Ex. A to Pierce Decl. in Supp. of Mot. for Leave – ECF

No. 114-2.

45 See generally Blackline – ECF No. 126.

46 SAC, Ex. A to Pierce Decl. in Supp. of Mot. for Leave – ECF

No. 114-2 at 5–6 (¶¶ 1, 3), 78–79 (¶¶ 233–34).

47 Id. at 92–93 (¶¶ 247–50).

App.18a

suppress the Hunter Biden laptop scandal.” Twitter’s

Trust and Safety chief Yoel Roth, who met weekly

with the FBI from 2018 to 2020, “wasn’t immediately

comfortable” removing the New York Post’s article on

the matter, but then ordered that it be suppressed

based on expert consensus that it “look[ed] a lot like a

hack-and-leak.” This order was allegedly given “[a]t

the consistent prompting of Twitter special counsel

and former FBI agent James Baker.” Twitter removed

links to the article, posted warnings that the article

may be unsafe, and blocked its transmission via direct

message. These actions allegedly “interfered in the

2020 [p]residential election, because[] as a 2020 MRC

poll found, ‘9.4 percent of Biden voters would have

abandoned him [if they had been fully aware of the

scandal], flipping all six of the swing states he won to

former President Donald Trump.’”48

The internal Twitter documents allegedly also

showed how easily “outside forces” could “manipulate”

Twitter to “censor” content on the platform. The FBI

and Mr. Roth “exchanged more than 150 emails from

January 2020 until November 2022. Many of these

emails were requests by the FBI for Twitter to take

action on election misinformation.” Other federal

agencies also requested that Twitter take action,

“sending lists of hundreds of problem accounts and

content identified as possible terms of service violation[s].”49

Twitter engaged in “shadowbanning” or “visibility

filtering” of users’ accounts. Twitter shadowbanned

48 Id. at 79–80 (¶¶ 236, 238).

49 Id. at 81–82 (¶¶ 239–40).

App.19a

“prominent conservatives.” Mr. Musk said that this

was done with political candidates. It is “extremely

likely” that Twitter shadowbanned the plaintiff’s

account.50

Twitter, Facebook, and persons within the federal

government allegedly communicated with each other

using software called Jira. According to the plaintiff,

this communications channel strengthens her alleations about a conspiracy to eliminate “unwanted

political speech” and interfere in elections.51 In light

of this communications channel, the plaintiff alleges

that the FBI’s red-flagging her in its NICS database

was likely related to the defendants’ de-platforming

her.52

In February 2023, the House Committee on

Oversight and Accountability held a hearing on the

Twitter documents.53 Representative Gary Palmer

cited a Princeton University study saying that Twitter

“allowed terrorist organizations, such as the Taliban,

to have Twitter accounts.” According to Mr. Palmer,

as the United States withdrew from Afghanistan

between April and September 2021, “[t]here were

more than 126,000 accounts in the Taliban support

network,” even though “the US government classifies

the Taliban as an insurgent group.” Mr. Roth

responded that “Twitter’s policies at the time

distinguished between some of the more violent

50 Id. at 82–83 (¶ 241), 88–90 (¶ 245), 93 (¶ 251).

51 Id. at 7–8 (¶¶ 8–9).

52 Id. at 77–78 (¶ 232).

53 Id. at 6–7 (¶¶ 5–7).

App.20a

portions of the Taliban and some of [its] more political

portions.”54

The proposed SAC also has new allegations about

the plaintiff. In May 2019, a Public Policy Manager at

Facebook named Josh Althouse called the plaintiff

and one of her associates and said that Procter &

Gamble had sent Facebook a list of people “who were

to be banned from [Facebook] unless [they] disavowed

the Proud Boys,” if Facebook “wished to maintain its

advertising revenue agreement” with Procter &

Gamble. Mr. Althouse encouraged the plaintiff to

make a statement disavowing the Proud Boys “as a

way to placate [Procter & Gamble].” He also said that

Procter & Gamble was Facebook’s largest advertiser at

the time. Later that month, Mr. Althouse told the

plaintiff that Procter & Gamble had demanded that

Facebook label her a “dangerous individual” and ban

her.55

After Twitter banned the plaintiff, there allegedly

were “smear campaigns” targeting her, including by

accusing her of being anti-Muslim and a conspiracy

theorist. After she won the Republican primary election

in 2020, Twitter Global Partnership Solutions lead

Lara Cohen re-tweeted a tweet calling the plaintiff a

bigot and an extremist. Articles at that time called the

plaintiff an “Islamophobe” and a “white supremacist,”

which “caused Florida voters to view [the plaintiff] in

a negative light.”56 And there were many imposter

54 Id. at 90–92 (¶ 246).

55 Id. at 98–99 (¶¶ 270–71).

56 Id. at 105–06 (¶¶ 291–92).

App.21a

accounts purporting to be the plaintiff and using slurs

“to make her look bad.”57

The plaintiff created an account on “free speech

social media platform Parler” after Twitter banned

her, and she gained 1.6 million followers there. But

after January 6, 2021, Parler was removed from the

Apple and Google app stores and from Amazon Web

Services, in a “conspiracy” between the FBI and bigtech platforms.58 Parler came back online one month

later, but “the vast majority of its previous active

users did not return, and [the plaintiff] did not have

the ability to reach anywhere near as great an

audience as she previously had.”59

The proposed SAC also adds predicate-act allegations, mostly centered on wire fraud.

The defendants allegedly misrepresented that

the plaintiff is “hateful” and a “dangerous individual,”

when in fact the defendants were acting on “her

political speech and political views.” In doing so, the

defendants “persuaded users that [the plaintiff] [was]

not worthy of donations.” The defendants falsely

induced the public to believe that political candidates

would be treated fairly: for example, Mr. Zuckerberg

said “I don’t think it’s right for tech companies to

censor politicians in a democracy.” Mr. Musk said that

“election interference by social media companies . . . is

wrong.” But the defendants “chang[ed] their rules

regarding political candidates and campaigns as a

57 Id. at 108 (¶ 296).

58 Id. at 109 (¶ 298).

59 Id. at 110 (¶ 300).

App.22a

reaction to [the plaintiff’s] filing to run for political

office.” This denied the plaintiff “the ability to spread

her message to voters” and denied users “the right to

decide on which candidate they wanted to follow, or

whether or not to donate to a political candidate of

their choosing.”60

The defendants’ “material support of terrorists

and terrorist organizations” is allegedly “part and

parcel of their wire fraud.” They represented that they

had a policy of removing users who are dangerous

individuals, “but intentionally did not remove known

and designated terrorists,” and instead “simply

target[ed] non-violent conservatives for their political

speech.”61

The defendants’ “advocating the overthrow of

government” also allegedly “involved wire fraud.” Their

“attempt to overthrow the government” is “associated

with” terrorist presence on their platforms and their

“manipulation of and interference [with] the election

process.”62

4. The Plaintiff’s Previous Lawsuits Against

Twitter and Facebook

The plaintiff brought four previous lawsuits in

connection with her suspensions and bans from

Twitter and Facebook.

First, in Freedom Watch, Inc. v. Google, Inc., the

plaintiff and a non-profit claimed that Google, Face60 Id. at 123–26 (¶¶ 346, 348–50).

61 Id. at 131 (¶¶ 365–66).

62 Id. at 136 (¶ 379).

App.23a

book, Twitter, and Apple “work[ed] together to ‘intentionally and willfully suppress politically conservative

content,’” in violation of federal antitrust and other

laws. 368 F. Supp. 3d 30, 34 (D.D.C. 2019).63 The

plaintiff alleged that Facebook suspended her for

thirty days (her Facebook ban had not occurred yet)

and Twitter banned her.64 Id. The court dismissed the

complaint because it did not “state viable legal

claims.” Id. at 37.

Second, in Illoominate Media, Inc. v. CAIR Found.,

the plaintiff and Illoominate Media sued the CAIR

Foundation and Twitter over the plaintiff’s Twitter

ban. No. 19-CIV-81179-RAR, 2019 WL 13168767, at

*1–2 (S.D. Fla. Nov. 19, 2019). The plaintiffs

voluntarily dismissed Twitter before service. Id. at *1

n.1.

Third, the plaintiff claimed in another case that

Facebook defamed her when it suspended and then

banned her. Am. Compl., Loomer v. Facebook, Inc.,

No. 9:19-cv-80893-RS (S.D. Fla. Aug. 5, 2019), ECF

No. 7. The case was transferred to the Northern

District of California. Loomer v. Facebook, Inc., No.

63 ”A defense of res judicata is appropriately addressed at the

motion to dismiss stage of litigation, and in so doing, the court

can take judicial notice of the earlier proceedings that give rise

to the defense.” Nnachi v. City of San Francisco, No. C 10-00714

MEJ, 2010 WL 3398545, at *2 (N.D. Cal. Aug. 27, 2010) (cleaned

up).

64 The plaintiff also alleged the tweet that led to her Twitter ban:

“Ilhan [Omar] is pro Sharia Ilhan is pro- FGM Under Sharia

homosexuals are oppressed & killed. Women are abused & forced

to wear the hijab. Ilhan is anti Jewish.” Am. Compl., Freedom

Watch, Inc. v. Google, Inc., No. 1:18-cv-02030-TNM (D.D.C. Dec.

6, 2018), ECF No. 28 at 14 (¶ 68).

App.24a

19-CV-80893, 2020 WL 2926357, at *4 (S.D. Fla. Apr.

13, 2020). The plaintiff later voluntarily dismissed the

case with prejudice. Notice of Voluntary Dismissal,

Loomer v. Facebook, Inc., No. 4:20-cv-03154-HSG

(N.D. Cal. Aug. 13, 2020), ECF No. 88.

Fourth, the plaintiff also sued Facebook for

defamation in state court in Florida, and Facebook

removed the case to federal court. Notice of Removal,

Loomer v. Facebook, Inc., No. 9:20-cv-80484-RS (S.D.

Fla. Mar. 24, 2020), ECF No. 1. The plaintiff then

voluntarily dismissed the case without prejudice.

Notice of Voluntary Dismissal, id. (S.D. Fla. Apr. 22,

2020), ECF No. 20.

5. Relevant Procedural History

The FAC asserts two RICO claims under 18

U.S.C. § 1964(c), which provides for civil remedies for

violations of 18 U.S.C. § 1962, which contains the

criminal provisions of the RICO Act. Claim one is for

violation of § 1962(c), which prohibits participation in

an enterprise through a pattern of racketeering

activity.65 Claim two is for violation of § 1962(d),

which prohibits conspiracies to violate § 1962(c).66

The plaintiff alleges damages “in the form of

reputational damage,” “lost employment opportunities,” “lost future profits,” “deprivation of equal

access to voters and campaign donations,” and “loss of

votes in a federal election.”67

65 FAC – ECF No. 69 at 106–15 (¶¶ 345–80).

66 Id. at 116–17 (¶¶ 381–87).

67 Id. at 75–76 (¶¶ 252–53).

App.25a

The court has federal-question jurisdiction. 28

U.S.C. § 1331. All parties consented to magistratejudge jurisdiction.68 The court held a hearing on May

11, 2023.

STANDARD OF REVIEW

A complaint must contain a “short and plain

statement of the claim showing that the pleader is

entitled to relief” to give the defendant “fair notice” of

(1) what the claims are and (2) the grounds upon

which they rest. Fed. R. Civ. P. 8(a)(2); Bell Atl. Corp.

v. Twombly, 550 U.S. 544, 555 (2007). Thus, “[a]

complaint may fail to show a right to relief either by

lacking a cognizable legal theory or by lacking

sufficient facts alleged under a cognizable legal

theory.” Woods v. U.S. Bank N.A., 831 F.3d 1159, 1162

(9th Cir. 2016).

A complaint does not need detailed factual

allegations, but “a plaintiff’s obligation to provide the

‘grounds’ of his ‘entitlement to relief’ requires more

than labels and conclusions, and a formulaic

recitation of the elements of a cause of action will not

do. Factual allegations must be enough to raise a right

to relief above the speculative level.” Twombly, 550

U.S. at 555 (cleaned up). A complaint must contain

factual allegations that, when accepted as true, are

sufficient to “state a claim to relief that is plausible on

its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009);

NorthBay Healthcare Grp., Inc. v. Kaiser Found.

Health Plan, Inc., 838 F. App’x 231, 234 (9th Cir.

2020). “[O]nly the claim needs to be plausible, and not

the facts themselves. . . . ” NorthBay, 838 F. App’x at

68 Consents – ECF Nos. 26, 35, 36, 50, 77.

App.26a

234 (citing Iqbal, 556 U.S. at 696); see Interpipe Contracting, Inc. v. Becerra, 898 F.3d 879, 886–87 (9th

Cir. 2018) (the court must accept the factual

allegations in the complaint “as true and construe

them in the light most favorable to the plaintiff”)

(cleaned up).

Put another way, “[a] claim has facial plausibility

when the plaintiff pleads factual content that allows

the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Iqbal,

556 U.S. at 678. “The plausibility standard is not akin

to a ‘probability requirement,’ but it asks for more

than a sheer possibility that a defendant has acted

unlawfully.” Id. “Where a complaint pleads facts that

are merely consistent with a defendant’s liability, it

stops short of the line between possibility and

plausibility of ‘entitlement to relief.’” Id. (cleaned up).

If a court dismisses a complaint because of insufficient factual allegations, it should give leave to

amend unless “the pleading could not possibly be

cured by the allegation of other facts.” Cook, Perkiss

& Liehe, Inc. v. N. Cal. Collection Serv. Inc., 911 F.2d

242, 247 (9th Cir. 1990). If a court dismisses a

complaint because its legal theory is not cognizable,

the court should not give leave to amend. United

States v. United Healthcare Ins. Co., 848 F.3d 1161,

1184 (9th Cir. 2016); see Steele-Klein v. Int’l Bhd. of

Teamsters, Loc. 117, 696 F. App’x 200, 202 (9th Cir.

2017) (leave to amend may be appropriate if the

plaintiff “identifie[s] how she would articulate a

cognizable legal theory if given the opportunity”).

App.27a

ANALYSIS

The defendants moved to dismiss the FAC under

Rule 12(b)(6). Twitter and Facebook contend that the

claims are barred by res judicata and § 230 of the

Communications Decency Act, and all defendants

contend that the plaintiff cannot plausibly plead

RICO violations. In addition to opposing the motions

to dismiss, the plaintiff moved for leave to amend her

complaint.69 The court dismisses the claims with

prejudice: res judicata and § 230 bar the claims

against Twitter and Facebook, and the RICO claims

are futile.

1. Res Judicata

The Twitter and Facebook defendants contend

that the plaintiff’s claims are barred by the doctrine of

res judicata, because like her prior lawsuits against

Twitter and Facebook, this case is an attack on their

banning her.70 The plaintiff responds that new facts

(and thus new claims) have developed since the

previous cases, including new “conspiratorial acts”

constituting “First Amendment violations.”71

The doctrine of res judicata, or “claim preclusion,”

bars parties from relitigating claims that they raised

or could have raised in a prior lawsuit between the

same parties. Whole Woman’s Health v. Hellerstedt, 136

S. Ct. 2292, 2305 (2016); Taylor v. Sturgell, 553 U.S.

69 Mots. to Dismiss – ECF Nos. 79–81; Opp’n – ECF No. 87; Mot.

for Leave to Amend – ECF No. 114.

70 Twitter Mot. – ECF No. 79 at 18–22; Facebook Mot. – ECF No.

80 at 17–19.

71 Opp’n – ECF No. 87 at 12–13 & n.2.

App.28a

880, 892 (2008); C.D. Anderson & Co. v. Lemos, 832

F.2d 1097, 1100 (9th Cir. 1987). For the doctrine to

apply, there must be (1) an identity of claims, (2) a

final judgment on the merits, and (3) privity among

the parties. Tahoe-Sierra Pres. Council, Inc. v. Tahoe

Reg’l Plan. Agency, 322 F.3d 1064, 1077 (9th Cir.

2003).

The plaintiff does not dispute that some of her

previous lawsuits ended in final judgments on the

merits. As for Facebook, the court dismissed the

plaintiff’s defamation suit with prejudice under Rule

41(a)(2). Loomer v. Facebook, Inc., No. 4:20-cv-03154HSG (N.D. Cal. Aug. 14, 2020), ECF No. 89. That

qualifies as a final judgment on the merits. Marlow v.

Winston & Strawn, 19 F.3d 300, 305 (7th Cir. 1994);

Schwarz v. Folloder, 767 F.2d 125, 130 (5th Cir. 1985).

As for Twitter, the Freedom Watch court dismissed

the complaint under Rule 12(b)(6). 368 F. Supp. 3d at

37. That is also a final judgment on the merits.

Stewart v. U.S. Bancorp, 297 F.3d 953, 957 (9th Cir.

2002).

The plaintiff also does not dispute that there is

privity among the parties. Mr. Zuckerberg and Mr.

Dorsey were not defendants in the previous lawsuits,

but officers and former officers of a corporation are in

privity where the corporate conduct at issue is the

same as before. Pedrina v. Chun, 97 F.3d 1296, 1302

(9th Cir. 1996). And even though the plaintiff’s

campaign committee was not a party in the previous

cases, she controls the campaign committee and there

is privity between a party and her “litigating agent,”

or an agent whose “conduct of the [new] suit is subject

to the control of the party who is bound by the prior

adjudication.” Taylor, 553 U.S. at 906.

App.29a

The issue thus is whether there is an identity of

claims between this case and the previous cases. The

previous cases, like this one, centered on the plaintiff’s

removal from Facebook and Twitter. Specifically, the

plaintiff was banned by Twitter and suspended by

Facebook before she filed her previous cases. But some

of the allegations here postdate her filing the previous

cases: Facebook banned her, she ran for political office

twice, and her political campaigns were not allowed to

create accounts on Facebook or Twitter. And she now

claims that a racketeering enterprise interfered in her

elections. The exact issue, then, is whether the new

allegations and RICO theory amount to new “claims”

for purposes of res judicata.

The court first clarifies that federal preclusion

rules apply here. The previous judgments were

rendered by federal courts, so “federal common law

applies.” Camofi Master LDC v. Associated Third

Party Administrators, No. 16-cv-00855-EMC, 2016

WL 3345427, at *2 (N.D. Cal. June 16, 2016). It is true

that the plaintiff’s defamation lawsuit against

Facebook was a diversity case decided by a federal

court in California, meaning that federal common law

incorporates California’s preclusion rules. Id. (citing

Semtek Int’l Inc. v. Lockheed Martin Corp., 531 U.S.

497, 508–09 (2001), and Taylor, 553 U.S. at 891 n.4).

But that only leads back to federal common law,

because “California law . . . determines the res

judicata effect of a prior federal court judgment by

applying federal standards.” Miletak v. AT&T Servs.,

Inc., No. 17-cv-00767-EMC, 2017 WL 2617961, at *3

(N.D. Cal. June 16, 2017) (quoting Costantini v. Trans

World Airlines, 681 F.2d 1199, 1201 (9th Cir. 1982)).

App.30a

Under the federal common law of res judicata, the

Ninth Circuit considers four factors in determining

whether there is an identity of claims between the

present and previous cases:

(1) Whether rights or interests established in

the prior judgment would be destroyed or

impaired by prosecution of the second action;

(2) whether substantially the same evidence

is presented in the two actions; (3) whether

the two suits involve infringement of the

same right; and (4) whether the two suits

arise out of the same transactional nucleus

of facts.

Headwaters Inc. v. U.S. Forest Serv., 399 F.3d 1047,

1052 (9th Cir. 2005) (cleaned up). The fourth factor “is

the most important.” Id.

A key question is whether the facts pleaded in the

present case occurred before or after the plaintiff filed

the operative complaints in her previous cases. The

Ninth Circuit often phrases this question as whether

the claims in the present case “could have been

brought” in the previous case. Turtle Island

Restoration Network v. U.S. Dep’t of State, 673 F.3d

914, 918 (9th Cir. 2012) (“In most cases, the inquiry

into the ‘same transactional nucleus of facts’ is

essentially the same as whether the claim could have

been brought in the first action.”) (cleaned up). Thus,

“claim preclusion does not apply to claims that accrue

after the filing of the operative complaint” in the

previous case. Howard v. City of Coos Bay, 871 F.3d

1032, 1040 (9th Cir. 2017); Media Rts. Techs., Inc. v.

Microsoft Corp., 922 F.3d 1014, 1021–22 (9th Cir.

2019).

App.31a

Identifying when a claim has “accrued” requires

distinguishing between completed and continuing

conduct. Completed conduct “gives rise to a single

claim for all resulting harm,” including harm that

“continue[s] into the future.” Wright & Miller, 18 Fed.

Prac. & Proc. Juris. § 4409 (3d ed. 2023); see, e.g.,

Anderson v. City of St. Paul, 849 F.3d 773, 777–78 (8th

Cir. 2017). On the other hand, “[a]ggravation of an

original injury by separate or continuing conduct may

support a new claim.” Wright & Miller, 18 Fed. Prac.

& Proc. Juris. § 4409 (3d ed. 2023) (collecting federal

appellate cases); Frank v. United Airlines, Inc., 216

F.3d 845, 851 (9th Cir. 2000) (“A claim arising after

the date of an earlier judgment is not barred, even if

it arises out of a continuing course of conduct that

provided the basis for the earlier claim.”).

As these principles suggest, the claim-preclusion

analysis may present a difficult line-drawing problem

in the case of continuing conduct (as, for example, in

the case of a plaintiff who was banned from social

media and then subject to renewed bans once she

became a congressional candidate). In that regard,

appellate decisions have analyzed whether continuing

or renewed conduct gives rise to a new claim in the

RICO context.

In Monterey Plaza Hotel Ltd. P’ship v. Loc. 483 of

Hotel Emps. & Rest. Emps. Union, AFL-CIO, the

Ninth Circuit addressed — under California law — a

continuing series of alleged predicate acts. 215 F.3d

923, 927–28 (9th Cir. 2000). A hotel sued a union in

two prior cases for business interference caused by

mass picketing and for defamation. Id. at 927. In the

new case, the hotel brought a federal RICO claim and

alleged mail and wire fraud, witness intimidation,

App.32a

and vandalism. Id. “[M]any of the alleged predicate

acts charged in the RICO complaint occurred after the

filing of [the hotel’s] state court actions.” Id. at 928.

The court held that res judicata applied. “[T]o

state a federal RICO claim, the [plaintiff] must allege

that all of the predicate acts, taken together,

constitute a single course of conduct aimed at

benefitting the wrongdoer by harming the [plaintiff].”

Id. at 927–28 (citing Sedima, S.P.R.L. v. Imrex Co.,

473 U.S. 479, 496 & n.14 (1985)). “The [plaintiff] thus

cannot attempt to separate out prior torts . . . from

recent ones in an effort to create and preserve a new

RICO claim distinct from its [earlier] causes of

action.” Id. at 928.

It is true that the Monterey Plaza court applied

California law, which “approaches the [res judicata]

issue by focusing on the ‘primary right’ at stake: if two

actions involve the same injury to the plaintiff and the

same wrong by the defendant[,] then the same

primary right is at stake even if in the second suit the

plaintiff pleads different theories of recovery . . . or

adds new facts supporting recovery.” Henry v.

Clifford, 32 Cal. App. 4th 315, 321 (1995). Indeed,

“California courts have specifically rejected the

contention that new predicate acts might give rise to

a different pattern of racketeering activity and

consequently a new primary right.” Monterey Plaza,

215 F.3d at 928 (citing Abdallah v. United Savings

Bank, 43 Cal. App. 4th 1101, 1110 (1996)). Still, the

court described “federal RICO claim[s]” as requiring

that “all of the predicate acts, taken together,

constitute a single course of conduct.” Id. at 927–28

(citing Sedima, 473 U.S. at 496 & n.14). Also,

California law’s “primary right” concept is very

App.33a

similar to the third Headwaters factor. 399 F.3d at

1052.

The result in Feminist Women’s Health Ctr. v.

Codispoti was similar to that in Monterey Plaza. 63

F.3d 863, 867–68 (9th Cir. 1995). The court applied

Washington res judicata law, which is virtually (if not

entirely) the same as federal law for purposes of

determining whether two cases have an identity of

claims. Compare id., with Headwaters, 399 F.3d at

1052. The plaintiff, a health clinic that provided

abortions, had filed a previous lawsuit against alleged

arsonists, and it argued that res judicata should not

apply because the evidence necessary to sustain its

new RICO claim against the arsonists was not

available at the time of its earlier case. Feminist

Women’s Health Ctr., 63 F.3d at 868. The court held

that res judicata applied, reasoning in part that

sufficient events had occurred in time to assert a

RICO claim in the first case, even if “the third fire

[and] the decision to close the clinic” had not occurred

in time. Id. at 868 n.4.

Other appellate decisions have taken a somewhat

different approach to claim preclusion in the RICO

context by holding in effect that the alleged predicate

acts should be divided according to whether they

occurred in time to be raised in the previous case. In

Howard v. Am. Online, Inc., for example, the Ninth

Circuit held that alleged billing fraud that was the

subject of a prior suit could not be relied on as a

predicate act in a new suit. 208 F.3d 741, 747–48 (9th

Cir. 2000). But the court analyzed the other predicate

acts alleged by the plaintiffs on the merits. Id. at 748–

51. Similarly, in Spiegel v. Cont’l Ill. Nat’l Bank, the

Seventh Circuit held that claim preclusion barred

App.34a

only those alleged predicate acts that could have been

raised in the prior case. 790 F.2d 638, 645–46 (7th Cir.

1986).

Here, the analysis is different as to Facebook and

Twitter, but the court generally follows the reasoning

of Monterey Plaza and Feminist Women’s Health Ctr.

The plaintiff has two previous cases against these

defendants that ended in judgments on the merits,

and the analysis should take into account what

conduct by Twitter and Facebook occurred after the

filing of the operative complaints in those cases.

Howard, 871 F.3d at 1040; Media Rts. Techs., 922

F.3d at 1021–22.

As for Facebook, the operative complaint in the

plaintiff’s defamation suit was filed on August 5, 2019.

Am. Compl., Loomer v. Facebook, Inc., No. 4:20-cv03154-HSG (N.D. Cal. Aug. 5, 2019), ECF No. 7. This

was after the plaintiff was banned from Facebook

(May 2, 2019) and after she first became a political

candidate (August 2, 2019).72 It was also after a

Facebook Public Policy Manager allegedly told the

plaintiff about Procter & Gamble’s pressuring

Facebook to ban her.73 Given this timing, the plaintiff

could have raised her RICO claim (that the

defendants suppressed her political speech and

interfered with her elections by banning her from

social-media platforms) in the defamation case, even

though it was not until after the operative complaint

72 FAC – ECF No. 69 at 48 (¶ 160), 67 (¶ 219).

73 SAC, Ex. A to Pierce Decl. in Supp. of Mot. for Leave – ECF

No. 114-2 at 98–99 (¶¶ 270–71). The court considers the SAC

allegations here for purposes of determining whether

amendment would be futile.

App.35a

was filed in the defamation case that Facebook

banned the plaintiff’s campaign page. Feminist

Women’s Health Ctr., 63 F.3d at 868 & n.4.

The analysis is somewhat different for Twitter,

but with the same result. The operative complaint in

Freedom Watch (the plaintiff’s antitrust suit against

Twitter, Facebook, and others) was filed on December

6, 2018. Am. Compl., Freedom Watch, Inc. v. Google,

Inc., No. 1:18-cv-02030-TNM (D.D.C. Dec. 6, 2018),

ECF No. 28. Twitter banned the plaintiff before then,

but it was not until later that the plaintiff became a

political candidate. Twitter announced after the

plaintiff’s primary-election victory that she would

remain banned,74 and around that time, Twitter’s

Global Partnership Solutions Lead re-tweeted a tweet

calling the plaintiff a bigot.75 As Twitter emphasized

at the hearing, though, the plaintiff’s broad array of

racketeering allegations don’t have much — if

anything — to do with Twitter’s conduct toward the

plaintiff. The FAC and the proposed SAC have

separate sections for the alleged predicate acts, and

neither section has any allegation about Twitter’s

harming or otherwise interacting with the plaintiff.76

(By contrast, the plaintiff alleges that Facebook

engaged in wire fraud by telling its users that political

74 FAC – ECF No. 69 at 74 (¶ 247).

75 SAC, Ex. A to Pierce Decl. in Supp. of Mot. for Leave – ECF

No. 114-2 at 105 (¶ 292).

76 FAC – ECF No. 69 at 80–101 (¶¶ 262–330); SAC, Ex. A to

Pierce Decl. in Supp. of Mot. for Leave – ECF No. 114-2 at 111–

36 (¶¶ 302–79).

App.36a

candidates wouldn’t be banned but then banning the

plaintiff’s campaign page.77)

Twitter has engaged only in “a single course of

conduct” that the plaintiff cannot split into two cases.

Monterey Plaza, 215 F.3d at 927–28. The plaintiff

already asserted a concerted effort to “willfully

suppress politically conservative content” the first

time around. Freedom Watch, 368 F. Supp. 3d at 34.

And the many allegations that are unrelated to

Twitter don’t change this result. Kahr v. Damm, No.

207CV00231DAERJJ, 2007 WL 9728869, at *13 (D.

Nev. Dec. 18, 2007) (rejecting the plaintiff’s argument

that res judicata did not apply as to the “state

defendants” despite an alleged “ongoing pattern of

racketeering activity” by the defendants “subsequent

to the raids of May 29, 2003,” because the state

defendants were not alleged to have engaged in that

post-raid conduct), aff’d, 342 F. App’x 267 (9th Cir.

2009).

The plaintiff contends that “new material facts”

occurred after Freedom Watch: individuals within the

federal government worked with Twitter and

Facebook to “suppress[] . . . the Hunter Biden laptop

scandal,” ban Alex Berenson from Twitter, and

prevent the plaintiff from possessing a firearm. The

plaintiff further argues that these allegations show

that the defendants are state actors engaged in First

Amendment violations.78 She does not allege or claim

First Amendment violations in this case, though. In

77 FAC – ECF No. 69 at 88–90 (¶¶ 291–92, 296), 91 (¶ 302).

78 Opp’n – ECF No. 87 at 12–13 (citing FAC – ECF No. 69 at 76–

79 (¶¶ 254–61)).

App.37a

any event, the purported “new material facts” are not

material because they are unrelated to Twitter’s

conduct towards the plaintiff.

In sum, the doctrine of res judicata bars the

plaintiff’s claims against the Twitter and Facebook

defendants (including Mr. Dorsey and Mr.

Zuckerberg).

2. Section 230

The Twitter and Facebook defendants also contend

that § 230(c)(1) of the Communications Decency Act

bars the claims against them.79 The court considers

the § 230 issue as an alternative ground for dismissal

and dismisses the claims against the Twitter and

Facebook defendants on this ground too.

Under the Communications Decency Act, website

operators generally are immune from liability for

third-party content posted on their websites and for

removing such content, but website operators are not

immune when they create or develop the information,

in whole or in part. 47 U.S.C. § 230(c)(1) & (f)(3). Thus,

“[i]mmunity from liability exists for (1) a provider or

user of an interactive computer service (2) whom a

plaintiff seeks to treat . . . as a publisher or speaker

(3) of information provided by another information

content provider.” Dyroff v. Ultimate Software Grp.,

Inc., 934 F.3d 1093, 1097 (9th Cir. 2019) (cleaned up).

For the first factor, an “interactive computer

service” is “any information service [or] system . . .

that provides or enables computer access by multiple

79 Twitter Mot. – ECF No. 79 at 33–36; Facebook Mot. – ECF

No. 80 at 34–36.

App.38a

users to a computer server.” 47 U.S.C. § 230(f)(2).

“Twitter qualifies as an interactive computer service.”

Brittain v. Twitter, Inc., No. 19- cv-00114-YGR, 2019

WL 2423375, at *2 (N.D. Cal. June 10, 2019) (collecting

cases). So does Facebook. Fraley v. Facebook, Inc., 830

F. Supp. 2d 785, 801–02 (N.D. Cal. 2011). As for Mr.

Dorsey and Mr. Zuckerberg, where a plaintiff sues

them based on Twitter and Facebook’s conduct, they

are immune under § 230 to the same extent as Twitter

and Facebook. Igbonwa v. Facebook, Inc., No. 18-cv02027-JCS, 2018 WL 4907632, at *5 (N.D. Cal. Oct. 9,

2018), aff’d, 786 F. App’x 104 (9th Cir. 2019); Klayman

v. Zuckerberg, 753 F.3d 1354, 1357–58 (D.C. Cir.

2014).

For the second and third factors, courts evaluate

“whether the cause of action inherently requires the

court to treat the defendant as the publisher or

speaker of content provided by another.” Gonzalez v.

Google LLC, 2 F.4th 871, 891 (9th Cir. 2021) (cleaned

up), rev’d on other grounds by Twitter, Inc. v.

Taamneh, 598 U.S. 471 (2023). “[P]ublication involves

reviewing, editing, and deciding whether to publish or

to withdraw from publication third-party content.”

Barnes v. Yahoo!, Inc., 570 F.3d 1096, 1102 (9th Cir.

2009). Thus, “any activity that can be boiled down to

deciding whether to exclude material that third parties

seek to post online is perforce immune under section

230.” Fair Hous. Council of San Fernando Valley v.

Roommates.com, LLC, 521 F.3d 1157, 1170–71 (9th

Cir. 2008).

Here, the plaintiff’s RICO claims depend on

Twitter and Facebook’s acting as publishers. Her

RICO theory generally is that the alleged enterprise

unlawfully bans conservatives from social-media

App.39a

platforms and thereby interferes in elections.80 She

alleges that she became a victim of this scheme when

she was banned from Twitter and Facebook and then

her political campaign was banned, too.81 Those were

decisions by Facebook and Twitter to exclude third

parties’ content, meaning that Facebook and Twitter

are immune from liability for those decisions. Id.; Fed.

Agency of News LLC v. Facebook, Inc., 432 F. Supp. 3d

1107, 1117–18 (N.D. Cal. 2020) (section 230(c)(1)

immunity applies where plaintiffs “seek to hold

Facebook liable for removing [their] Facebook

account, posts, and content”).

Similarly, the alleged predicate acts consist of

decisions by Facebook and Twitter about whether to

publish, remove or restrict third parties’ content. For

example, regarding interference with commerce by

threats or violence, the plaintiff alleges that when

Facebook users try to share a post that has been factchecked, Facebook displays a warning that “[p]ages

and websites that repeatedly publish or share false

news will see their overall distribution reduced and

[will] be restricted in other ways.”82 This again is

“activity that can be boiled down to deciding whether

to exclude material that third parties seek to post

online.” Roommates.com, 521 F.3d at 1170–71; Lewis

v. Google LLC, 461 F. Supp. 3d 938, 954 (N.D. Cal.

2020) (“[R]estricting [as opposed to removing] postings

80 FAC – ECF No. 69 at 2–3 (¶¶ 2–3), 11–12 (¶ 37).

81 Id. at 48 (¶ 160), 66 (¶¶ 216–17), 68 (¶ 226), 72–74 (¶¶ 242,

244, 247).

82 Id. at 83 (¶ 276).

App.40a

falls within a publisher’s traditional functions.”), aff’d,

851 F. App’x 723 (9th Cir. 2021).

As another example, for the predicate act of

providing material support to terrorists, the plaintiff

alleges that “Hezbollah and Hamas maintained a

widespread presence on Facebook . . . and Twitter.”83

This is an allegation that Facebook acted as a

publisher. Force v. Facebook, Inc., 934 F.3d 53, 65 (2d

Cir. 2019) (rejecting the plaintiffs’ attempt “to hold

Facebook liable for giving Hamas a forum with which

to communicate” because “that alleged conduct by

Facebook falls within the heartland of what it means

to be the ‘publisher’ of information under [§] 230(c)(1)”).

Furthermore, the fact that the plaintiff alleges a

broad racketeering enterprise does not bring her

claims outside the scope of § 230 immunity, even

though § 230 provides that it does not “impair the

enforcement of . . . Title 18[] or any other Federal

criminal statute.” 47 U.S.C. § 230(e)(1). “Courts have

consistently held that § 230(e)(1)’s limitation on § 230

immunity extends only to criminal prosecutions, and

not to civil actions based on criminal statutes.”

Gonzalez, 2 F.4th at 890 (collecting cases).

Because the plaintiff’s RICO theory against

Twitter and Facebook is predicated entirely on their

acting as publishers, § 230(c)(1) bars the claims.

The plaintiff contends that § 230 immunity does

not apply because Twitter and Facebook act as

“information content providers,” not just “interactive

computer services.” She cites Roommates.com for the

proposition that “even displaying user information

83 Id. at 95 (¶ 312).

App.41a

such as age, hometown, college, likes, and occupation

would make [the] [d]efendants information content

providers.” Similarly, the plaintiff argues that Twitter

and Facebook rearrange user content to group it with

third-party logos, “employ fact checkers to flag posts

that could be misleading,” “collect[], stor[e], and us[e]

consumers’ data,” allow targeted and deceptive ads,

“subject[]

users

to

scams

and

counterfeit

merchandise,” and “control[] the narrative.”84 These

arguments fail.

Again, website operators are not immune from

liability for third-party content posted on their

websites when the operators create or develop the

information, in whole or in part. 47 U.S.C. § 230(c)(1)

& (f)(3). For example, in Roommates.com, the defendant

operated a website that matched people renting rooms

to people looking for a place to live. 521 F.3d at 1161.

It required subscribers to create profiles and answer

questions — about themselves and preferences in

roommates — regarding criteria including sex, sexual

orientation, and whether they would bring children to

the household. Id. The Ninth Circuit held that the

defendant

was

not

immune

for

eliciting

discriminatory preferences that violated federal and

state fair-housing laws:

By requiring subscribers to provide the

information as a condition of accessing its

service, and by providing a limited set of prepopulated answers, [the defendant] [became]

much more than a passive transmitter of

information provided by others; it [became]

the developer, at least in part, of that

84 Opp’n – ECF No. 87 at 21–23.

App.42a

information. And section 230 provides

immunity only if the interactive computer

service does not “creat[e] or develop[]” the

information “in whole or in part.”

Id. at 1166 (citing 47 U.S.C. § 230(f)(3)). Thus, the

court “interpret[ed] the term ‘development’ [in § 230]

as referring not merely to augmenting the content

generally, but to materially contributing to its alleged

unlawfulness.” Id. at 1167–68.

The conduct of Twitter and Facebook at issue

here is not enough to make them information-content

providers, for several reasons. First, content that

“comes entirely from subscribers and is passively

displayed by [the website operator]” does not make the

website operator an information-content provider. Id.

at 1173–74. Second, the plaintiff has not cognizably

alleged that Twitter and Facebook’s manipulating or

editing users’ content contributes to any illegality. For

example, she does not explain how flagging posts as

factually misleading amounts to anticompetitive

conduct. See Dangaard v. Instagram, LLC, No. C 2201101 WHA, 2022 WL 17342198, at *2, *4 (N.D. Cal.

Nov. 30, 2022) (the “Meta defendants [were] not

entitled to [§ 230] immunity for operation of their

filtering system,” because the filtering system allegedly

demoted competitors of the website OnlyFans while

favoring OnlyFans, which materially contributed to

anticompetitive conduct). Third, what is at issue here

is not the “alleged unlawfulness” of any content on

Twitter and Facebook, but rather Twitter and Facebook’s removal of the plaintiff’s accounts. See Roommates.com, 521 F.3d at 1167–68.

App.43a

3. RICO

The next issue is whether the plaintiff has

plausibly pleaded RICO claims against Procter &

Gamble. Procter & Gamble argues generally that it “is

alleged only to have asserted its own legitimate

business interest in not having its advertisements

appear next to hateful, denigrating, discriminatory, or

other similarly offensive content.” It also joins in

Facebook and Twitter’s motions to dismiss, which

argue that the plaintiff “failed to validly allege any of

the required elements of a RICO claim, including a

RICO enterprise, a pattern of racketeering activity,

causation, injury, predicate acts, or conspiracy.”85

The RICO Act was enacted to “develop new

methods for fighting crime.” Sedima, 473 U.S. at 498.

To state a civil RICO claim, a plaintiff must allege “(1)

conduct (2) of an enterprise (3) through a pattern (4)

of racketeering activity (known as ‘predicate acts’) (5)

causing injury to the plaintiff’s ‘business or property.’”

Grimmett v. Brown, 75 F.3d 506, 510 (9th Cir. 1996);

Synopsys, Inc. v. Ubiquiti Networks, Inc., No. 17-cv00561-WHO, 2017 WL 3485881, at *12 (N.D. Cal.

Aug. 15, 2017) (citing Eclectic Props. E., LLC v.

Marcus & Millichap Co., 751 F.3d 990, 997 (9th Cir.

2014)).

Procter & Gamble contends that because it was

pursuing its individual economic interests in an

ordinary commercial transaction, the plaintiff’s

85 Procter & Gamble Mot. – ECF No. 81.

App.44a

allegations do not satisfy the “common purpose”

element of a RICO enterprise.86

Generally, a RICO enterprise “includes any union

or group of individuals associated in fact.” United

States v. Turkette, 452 U.S. 576, 580 (1981); 18 U.S.C.

§ 1961(4). To plausibly plead an associated-in-fact

enterprise, a plaintiff must allege that the enterprise

has (1) “a common purpose,” (2) “a structure or

organization,” and (3) “longevity necessary to

accomplish the purpose.” Eclectic Props., 751 F.3d at

997 (citing Boyle v. United States, 556 U.S. 938, 946

(2009)). Stated somewhat differently, the enterprise’s

existence “is proved by evidence of an ongoing

organization, formal or informal, and by evidence that

the various associates function as a continuing unit.”

Odom v. Microsoft Corp., 486 F.3d 541, 549 (9th Cir.

2007) (quoting Turkette, 452 U.S. at 583).

As for the “common purpose,” “RICO liability

‘depends on showing that the defendants conducted or

participated in the conduct of the ‘enterprise’s affairs,’

not just their own affairs.” In re JUUL Labs, Inc.,

Mktg., Sales Pracs., & Prod. Liab. Litig., 497 F. Supp.

3d 552, 598 (N.D. Cal. 2020) (quoting Cedric Kushner

Promotions, Ltd. v. King, 533 U.S. 158, 161 (2001)).

Thus, in the corporate context, “[c]ases recognize that

where the individual constituents of an asserted

enterprise are alleged only to have conducted the

regular business of the corporate entity or business in

their own interests, those allegations are insufficient

to support a RICO enterprise.” Id. at 599–600

(collecting cases); Woodell v. Expedia Inc., No. C190051JLR, 2019 WL 3287896, at *8 (W.D. Wash. July

86 Id. at 6–8.

App.45a

22, 2019) (collecting other cases). If, on the other hand,

“the common purpose of the enterprise is fraudulent

or unlawful,” the result is different. Gilbert v.

MoneyMutual, LLC, No. 13-cv-01171-JSW, 2018 WL

8186605, at *13 (N.D. Cal. Oct. 30, 2018).

Here, even granting generous inferences to the

plaintiff, she alleges essentially that Procter &

Gamble pressured Facebook to ban her by threatening

to pull advertisements from Facebook if it did not do

so, and that Facebook capitulated.87 The proposed

SAC makes these inferences explicit by alleging that

a Public Policy Manager at Facebook told the plaintiff

that Procter & Gamble — Facebook’s largest

advertiser at the time — demanded that Facebook

label the plaintiff a “dangerous individual” and ban

her if Facebook “wished to maintain its advertising

revenue agreement with [Procter & Gamble].”88

These are allegations that Facebook and Procter

& Gamble each conducted “business in their own

interests.” In re JUUL Labs, 497 F. Supp. 3d at 599.

Procter & Gamble did not want to advertise “on or

near content that [it] determine[s] is hateful,

denigrating or discriminatory.”89 Facebook has a

“Community Standards” policy for its users and

routinely discusses policy issues with its advertisers.90 These are lawful business decisions, and the

plaintiff thus has not plausibly pleaded that Procter

87 FAC – ECF No. 69 at 48 (¶ 160), 70–72 (¶¶ 233–37, 239)

88 SAC, Ex. A to Pierce Decl. in Supp. of Mot. for Leave – ECF

No. 114-2 at 98–99 (¶¶ 270–71).

89 FAC – ECF No. 69 at 71 (¶ 237).

90 Id. at 32 (¶ 106), 71 (¶ 236).

App.46a

& Gamble is part of a RICO enterprise. Id. at 598–600

(no RICO enterprise where the defendants’ alleged

common purpose “was to increase the number of

nicotine addicted consumers and to target the youth

market to create a new generation of nicotine

addicts”); Odom, 486 F.3d at 552 (a RICO enterprise’s

common purpose was adequately alleged where

“Microsoft and Best Buy had a common purpose of

increasing the number of people using Microsoft’s

Internet service through fraudulent means”). The

court grants Procter & Gamble’s motion to dismiss.

The court will not reach all of the defendants’

other (valid) arguments that the plaintiff’s RICO

claims aren’t plausibly pleaded. But it bears

emphasizing that the “predicate acts” a plaintiff must

plausibly allege are crimes, not torts. See, e.g., Oscar

v. Univ. Students Coop. Ass’n, 965 F.2d 783, 786 (9th

Cir. 1992), abrogated on other grounds by Diaz v.

Gates, 420 F.3d 897 (9th Cir. 2005). The defendants

here have not committed crimes. For example, the

plaintiff alleges that Facebook engaged in

“interference with commerce by threats” by

threatening to ban her and label her a “dangerous

individual.”91 But rather than economic extortion, she

has alleged only “legally acceptable business

dealings.” Levitt v. Yelp! Inc., 765 F.3d 1123, 1133 (9th

Cir. 2014) (Hobbs Act extortion requires the plaintiff

to allege that she “had a pre-existing right to be free

from the threatened harm”).

91 Id. at 110–11 (¶ 365).

App.47a

4. Amendment

The final issue is whether amendment would be

futile. That depends on whether the proposed SAC,

submitted with the plaintiff’s motion for leave to

amend, changes any of the outcomes above.92 It does

not.

The new allegations are about Twitter’s allegedly

coordinating with the federal government to suppress

users’ content (as revealed by internal Twitter

documents), Procter & Gamble’s allegedly demanding

that Facebook ban the plaintiff (as already

addressed), the plaintiff’s injuries after being banned

from social media, and wire fraud. None changes the

court’s conclusions that (1) res judicata applies as to

Facebook and Twitter, (2) the claims against

Facebook and Twitter would require the court to treat

Facebook and Twitter as publishers, in violation of

§ 230, and (3) the allegations against Procter &

Gamble are about lawful business decisions, not a

racketeering enterprise. The court thus dismisses the

plaintiff’s claims with prejudice.

CONCLUSION

The court grants the motions to dismiss with

prejudice. This resolves ECF Nos. 79, 80, 81, and 114.

IT IS SO ORDERED.

Dated: September 30, 2023

/s/ Laurel Beeler

United States Magistrate Judge

92 Mot. for Leave – ECF No. 114.