another case says Google’s “free speech” statements are puffery

Ugh, Google’s new Blogger interface is terrible–will I be forced to decamp to WordPress? Anyway:

Lewis v. Google LLC, — F. Supp. 3d —-, No. 20-cv-00085-SK, 2020 WL 2745253 (N.D. Cal. May 20, 2020)

Plaintiff, an antifeminist, is sad that Google considered his YouTube videos to be hate speech. Ignoring the First Amendment/other state-action-requiring claims/claims barred by §230 (for the moment, I guess? Depends on what level of authoritarianism we graduate to), his Lanham Act/similar claims also fail. Lewis argued that YouTube’s statements that “everyone deserves to have a voice,” that it believes “people should be able to speak freely,” “everyone should have a chance to be discovered,” etc. constituted false advertising.

First, Lewis didn’t allege that he was within the Lanham Act’s zone of interests. Even assuming that he was a competitor to YouTube because YouTube also makes videos, his injury was suffered as a consumer and the challenged statements were not about YouTube’s own videos but about the forum YT provides. He didn’t explain how YT’s statements about itself, as opposed to shutting down/demonetizing his videos, caused him harm.

Plus, the Prager case teaches that YT’s statements about its welcoming arms are puffery.

Fraud/fraudulent omission claims also failed. Lewis alleged that Google “failed to disclose that they wrongfully censor hate speech and do so at the behest of foreign governments in contravention of American Constitutional free speech.” But YT discloses that it reviews flagged content and prohibits “hateful content” and other things from being monetized. There was no properly pled omission contradicting the TOS; any reliance on the alleged omissions wouldn’t be reasonable; and Lewis didn’t allege any facts showing that the ability of foreign governments to flag videos was material.

Unsurprisingly, there was also no breach of the implied covenant of good faith and fair dealing, given the TOS, nor tortious interference with prospective economic advantage.

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