[00:00:00] Speaker 01:
15 minutes, and though I note there's more than one person at the other council table, only one person's arguing, is that correct?

[00:00:08] Speaker 01:
All right, thank you.

[00:00:09] Speaker 01:
Good morning.

[00:00:10] Speaker 04:
Good morning, Your Honors, and may it please the court, Scott Street, for the appellant, Mr. Kennedy.

[00:00:14] Speaker 04:
And before I start, Judge Callahan, I'd like to, if I may, try to reserve just two minutes of my time for rebuttal.

[00:00:21] Speaker 04:
Thank you.

[00:00:23] Speaker 04:
Your Honors, in the short time that I have here today,

[00:00:27] Speaker 04:
I'd like to emphasize the limited nature of the relief that my client, Mr. Kennedy, is seeking.

[00:00:35] Speaker 04:
First off, this is an injunction that would last only during the current presidential campaign and only so long as Mr. Kennedy is a candidate for president of the United States.

[00:00:48] Speaker 04:
Second, this is an injunction that would promote speech, promote speech in a forum that is freely accessible to millions, in fact, billions of people worldwide, a place where many Americans go to debate the issues of the day, to learn about the issues that they're going to vote upon.

[00:01:09] Speaker 04:
This is a situation also, Your Honors, where the district court specifically found that the balance of equities tipped in Mr. Kennedy's favor.

[00:01:18] Speaker 04:
and where both under the Fifth Circuit decision.

[00:01:21] Speaker 01:
Well, there is abusive discretion, right?

[00:01:23] Speaker 04:
Correct.

[00:01:24] Speaker 01:
So it just seems that the mountain has to climb.

[00:01:29] Speaker 01:
And I don't think anyone really disagrees that a lot of young people particularly get all their information for elections on these platforms as far as that goes.

[00:01:39] Speaker 01:
But I'm looking at our cases.

[00:01:42] Speaker 01:
And right now, he's smack in the middle of O'Hanley.

[00:01:47] Speaker 01:
but there's a Supreme Court case pending that might change the landscape.

[00:01:55] Speaker 01:
I'm not sure that it will, but we'll probably know that by the end of June.

[00:02:01] Speaker 01:
But it seems that he's basically that

[00:02:08] Speaker 01:
that you're asserting that entirely on the government to decide what speech is false, misleading, or dangerous may be deemed a state actor as it fulfills the state censorship goals by removing speech the government has deemed to be false, misleading, or dangerous.

[00:02:27] Speaker 01:
But I'm just wondering what's your best case to say really that you've, you know, so far these cases have all fallen a little short of being able to show the state action.

[00:02:44] Speaker 01:
And the platforms all say, hey, this is what we want to do.

[00:02:47] Speaker 01:
And you get this platform for free, and everyone wants the platform for free, and they sign an agreement.

[00:02:53] Speaker 01:
that, let's face it, the platforms might be aligned with what the president administration is.

[00:03:00] Speaker 04:
Well, what I would say to that, Judge Callahan, is that first off, as to the best case for us, this may seem paradoxical, but I actually believe that O'Hanley is one of the best cases for us because this case, what's happening here is exactly what this court warned about

[00:03:16] Speaker 04:
in O'Hanley, when this court decided O'Hanley, and it was one of the few published decisions, I know there have been many unpublished decisions involving Facebook, Google, and other, Twitter, other social media platforms, but when this court decided O'Hanley, it did not say that websites, tech companies, social media companies can do whatever they want, whenever they want, regardless of the situation.

[00:03:39] Speaker 04:
It said, in fact, that a constitutional problem would arise if, in that case, it was Twitter,

[00:03:46] Speaker 04:
agreed to serve as an arm of the government, removing speech that the government did not want people to hear.

[00:03:54] Speaker 04:
And that's one of, we raised this with Judge Thompson below, Your Honors, is that one of the reasons why we didn't, and again, this is a motion for a preliminary injunction, so we're still fairly early in this case.

[00:04:05] Speaker 04:
One of the reasons we didn't seek relief based on coercion is because we took Google at its word.

[00:04:12] Speaker 04:
Google says we want to remove this information, and we agree with the public health messaging that the current administration is

[00:04:22] Speaker 04:
is stating, and we want to amplify that.

[00:04:25] Speaker 04:
So I would say, Your Honor, that this is exactly what the Court warned about in O'Hanley.

[00:04:30] Speaker 04:
And the constitutional problem does arise.

[00:04:32] Speaker 04:
And when we apply the proper test here, which is, as this Court well knows, the serious questions, are there serious questions about whether this action is constitutional under the First Amendment?

[00:04:45] Speaker 04:
This is a situation where the Court should adhere to its longstanding tradition and uphold

[00:04:51] Speaker 04:
speech, not forced speech, not enforced silence.

[00:04:55] Speaker 02:
Mr. Street, I found the evidence in support of your arguments sort of weak, because it seems you have this timing issue where one of the claims you make in the brief is that the Google developed this medical misinformation policy in response to the government's demands for censorship.

[00:05:19] Speaker 02:
But as evidence in support of that and with Mr. Kennedy's involvement with YouTube, it seems as if the policy started far earlier than these videos were taken down over a year before in 22.

[00:05:34] Speaker 02:
So explain to me what evidence you rely on in support of the notion that Google has been converted into this arm of the state in order to censor Mr. Kennedy.

[00:05:45] Speaker 04:
Well, the evidence just just Sanchez is that I would agree with you.

[00:05:49] Speaker 04:
There are there does appear to have been a some sort of misinformation policy that was adopted back in 2020 or 2021.

[00:05:58] Speaker 04:
um, by, uh, by YouTube, but the policy that was used, we argued this, we alleged this, we put in evidence to support this, including through Mr. Kennedy's declaration that, uh, Google was not using any policy to remove his speech prior to the summer fall of 2021, which was the key time period

[00:06:18] Speaker 04:
where we included evidence, evidence that was obtained primarily from the Fifth Circuit case that's now up at the Supreme Court, where the government, the federal government, the surgeon general, the White House and the surgeon general were demanding more removal of speech from tech platforms like YouTube.

[00:06:35] Speaker 04:
They were specifically identifying Mr. Kennedy as someone whose speech needed to be removed, curtailed on these platforms.

[00:06:42] Speaker 04:
And we have evidence that, again, emails.

[00:06:45] Speaker 02:
Do you have a record site for the proposition that the government was saying, take down Kennedy's videos?

[00:06:52] Speaker 04:
Well, we have.

[00:06:52] Speaker 04:
So we have the evidence we have.

[00:06:54] Speaker 04:
We have a few things.

[00:06:56] Speaker 04:
First, we have what I call the partnership email, which is that ER 1079 White House official, Rob Flaherty, discussing the White House's desire to remove speech

[00:07:11] Speaker 04:
viewpoints like Mr. Kennedy's from Google.

[00:07:15] Speaker 04:
We then have evidence of statements made by the president and other administration officials, which appear between, I don't have the exact pin site, but generally between pages 1,100 and 1,200 of the excerpts of record, where during July of 2021, the Surgeon General and the White House were specifically identifying Mr. Kennedy as somebody who they wanted to see the tech platforms

[00:07:41] Speaker 04:
uh, remove speech of.

[00:07:43] Speaker 04:
And then we have, uh, culminating, I believe on, uh, I don't have the exact site.

[00:07:50] Speaker 04:
It's around, it's around 12, around 1200 of the excerpts of record, um, is where the Google officials, Google YouTube executives are communicating with White House officials during September of 2021.

[00:08:05] Speaker 04:
about, quote, a new policy that they have developed during this time, July to September of 2021, that they are now going to use to remove more speech critical of public health messages from YouTube.

[00:08:21] Speaker 02:
And what do you, to Judge Callahan's question before, what makes it about these communications that suggest to you that Google was either coerced into doing this or lost its own agency in deciding

[00:08:33] Speaker 02:
whether to remove videos or not, because that seems to be the dividing line.

[00:08:38] Speaker 02:
If the platforms want to work hand in glove with the government and their interests are aligned to take down what they consider to be misinformation, O'Hanley tells us, we don't have a problem.

[00:08:50] Speaker 02:
But it's when the platforms somehow lose their own agency in this matter is when a claim might be raised.

[00:08:56] Speaker 02:
So what is it about those communications that suggest to you that it was a command or a directive of some kind?

[00:09:01] Speaker 04:
What's a combination, Judge Sanchez, of not just the timing, but also the policies themselves.

[00:09:11] Speaker 04:
So in this case, as amended, it was the medical misinformation policy that looks entirely to the government, to the incumbent government to decide which viewpoints get removed.

[00:09:23] Speaker 04:
So there is no, and there's no evidence in the record of any kind of independent decision making

[00:09:28] Speaker 04:
by Google, and I would actually use that point to distinguish this policy from, say, I think it's Twitter's civic integrity policy.

[00:09:37] Speaker 02:
Well, there's an important distinction that I think we should draw here.

[00:09:40] Speaker 02:
One is, if Google's policy looks to government expertise to tell us what, or to tell it what it considers to be accurate information about vaccines or about medical information in general,

[00:09:53] Speaker 02:
and then it makes its own decision to take down videos that it seems inconsistent with those, with that government information.

[00:10:00] Speaker 02:
That's not an actionable claim, is it?

[00:10:03] Speaker 02:
Well, I think it is under these circumstances because Google is not allowed to rely on government expertise to determine the accuracy of videos on its platforms?

[00:10:11] Speaker 04:
Well, I think, Judge Sanchez, that Google can do.

[00:10:14] Speaker 04:
First of all, I don't believe that Google can engage in viewpoint discrimination for any reason.

[00:10:19] Speaker 04:
I think that is inconsistent with

[00:10:21] Speaker 04:
the statutory immunity that it got under Section 230 of the communications agency?

[00:10:27] Speaker 02:
But that's begging the question whether Google is a state actor.

[00:10:30] Speaker 02:
Stick to my question.

[00:10:33] Speaker 02:
Is Google allowed to rely on government expertise about vaccines and medical information in order to make its own decisions about what videos to take down that seem inconsistent or misinformed?

[00:10:45] Speaker 04:
I would say that if Google is making a truly independent decision that certain information is dangerous, then yes, it could do that.

[00:10:54] Speaker 04:
But there's no evidence of that here.

[00:10:56] Speaker 01:
Well, but how's the court to determine whether a private entity such as YouTube is acting on its own volition or pursuant to coercion from the government?

[00:11:04] Speaker 01:
If the government's entitled to express its opinion, how do we draw the line between persuasion and coercion?

[00:11:14] Speaker 01:
Well, I'd say- Because private entities certainly are not, the private entities in the First Amendment don't live in the same house.

[00:11:23] Speaker 01:
You got to pull in, as Judge Sanchez said, you got to go to the state action to pull them in.

[00:11:29] Speaker 04:
Sure.

[00:11:30] Speaker 04:
But I would say, and actually to echo a point that I made earlier to Judge Sanchez, I think that this case is not as simple as saying this is a

[00:11:39] Speaker 04:
a private decision that's being made based on.

[00:11:42] Speaker 04:
This is not, for example, like the case of the Pasadena Republican Center versus the Western Justice Center, where the Western Justice Center, which is a building near my house in Pasadena, says we are gonna exclude certain people from this.

[00:11:54] Speaker 04:
We have a right to decide who comes here.

[00:11:56] Speaker 04:
You can't do the constitutional analysis, the state action analysis here, without looking at the inherently public nature of the forum.

[00:12:04] Speaker 04:
And one of the distinctions I would make between this case and all of the other cases that have come before this court

[00:12:09] Speaker 04:
the technology, the censorship cases, is no one has done that type of analysis.

[00:12:13] Speaker 04:
No one has done the analysis that you, Judge Sanchez, did in the Kavenzid case, where you looked at the different types of public forums that can be created, where you consider Section 230, you consider the fact that YouTube has said that we are a public forum for some purposes, including, for example, California's anti-SLAP statute,

[00:12:32] Speaker 04:
You need to take that all into consideration and say, under those circumstances, when you have a forum that is freely accessible, I can log on to Google from anywhere in the world, YouTube from anywhere in the world, and listen to debates about public issues.

[00:12:45] Speaker 04:
And you have a nominally private entity engaging in selecting which viewpoints people hear and looking to the government to say, that is not proper.

[00:12:57] Speaker 04:
Now, that may be fine, but all I'm suggesting, Your Honor, is in that situation is that,

[00:13:02] Speaker 04:
When Google does that, which it does not have to do, its actions should be subject to constitutional scrutiny.

[00:13:08] Speaker 04:
And that just means that it can act, so for example under section 230, if it determines that information is dangerous, it can remove that.

[00:13:16] Speaker 04:
But that has not been done here.

[00:13:18] Speaker 04:
And in this situation, we have speech, including in the way this case started with a speech in New Hampshire that I was at, of Google removing a two-hour political speech

[00:13:30] Speaker 04:
that had basically nothing to do with vaccines that many people were interested in, but pointing to the government and saying, that can't be heard.

[00:13:39] Speaker 04:
And I will save the balance of my time.

[00:13:41] Speaker 01:
Thank you.

[00:13:54] Speaker 00:
Good morning.

[00:13:55] Speaker 00:
Good morning.

[00:13:55] Speaker 00:
May I please the court?

[00:13:56] Speaker 00:
I'm Ginger Anders, representing Google and YouTube.

[00:13:59] Speaker 00:
The district court here did not abuse its discretion in denying Kennedy a preliminary injunction.

[00:14:03] Speaker 00:
If I can start with Judge Sanchez's question about the standard here.

[00:14:06] Speaker 00:
The legal standard here is very well established.

[00:14:09] Speaker 00:
Did the private party make its own decision?

[00:14:13] Speaker 00:
Did it exercise its own agency, or has it been so overcome by government coercion, inducement, or entanglement

[00:14:19] Speaker 00:
that the decision must be deemed in law to be that of the state.

[00:14:22] Speaker 01:
I guess that goes back to the question I just was asking at the end.

[00:14:25] Speaker 01:
How do we determine whether a private entity is succumbing to government coercion or only exercising its independent judgment in a manner consistent with the government's position?

[00:14:36] Speaker 01:
Of course, the private entity is likely to deny being coerced.

[00:14:42] Speaker 01:
How do we look behind that denial?

[00:14:44] Speaker 01:
Well, I think what the court does- I mean, you don't want to get sued.

[00:14:47] Speaker 00:
So- I think the standard constitutional handling, which in turn took it from Blum, I think what the court does is it looks to the objective circumstances and it asks, is this a situation in which the government has threatened concrete legal consequences, some sort of concrete adverse consequences that would be sufficient to overcome the private party's will so that it says, I'd better do what the government tells me to?

[00:15:08] Speaker 00:
So what if they said, we're pulling 230 if you don't-

[00:15:12] Speaker 00:
take this down?

[00:15:13] Speaker 00:
So I think there could be some circumstances in which, if the government's threatened to change the law, that that could amount to coercion.

[00:15:21] Speaker 00:
The reason I want to be a little bit careful there is that, of course, this Court has said that this is a context-specific analysis and you have to look at all of the context.

[00:15:29] Speaker 00:
That could potentially be enough, but of course we don't have anything that comes even close to that here.

[00:15:34] Speaker 00:
I think the closest thing in the record would be where the White House talked about Section 230.

[00:15:40] Speaker 00:
But I think what is key there, a couple points, one is that the government immediately said, that's up to Congress.

[00:15:47] Speaker 00:
That's not up to us as the administration.

[00:15:49] Speaker 00:
That is relevant to whether this is threatening.

[00:15:52] Speaker 00:
And the president himself said, I'm not trying to hold any of the platforms accountable.

[00:15:56] Speaker 00:
I think that's incredibly important as well.

[00:15:58] Speaker 00:
And then I do want to just highlight the timing issue here, because I think

[00:16:02] Speaker 00:
that I think just forecloses any conclusion that there was any sort of coercion or inducement here.

[00:16:09] Speaker 00:
Kennedy challenges Google's adoption of its COVID vaccine misinformation policy.

[00:16:13] Speaker 00:
That adoption occurred in December 2020.

[00:16:15] Speaker 00:
That is eight months before any of the public statements at issue about 230 or

[00:16:23] Speaker 00:
any of the things in the press.

[00:16:24] Speaker 00:
And so I don't think that there's any reasonable argument that that policy was adopted because of any sort of government coercion or inducement.

[00:16:33] Speaker 00:
And with respect to the fact that the policy, to some extent, relies on government information, I do think this is a situation in which

[00:16:40] Speaker 00:
Private parties have a right, and we want them to have leeway to be persuaded by what the government says, to rely on the government's advice, its expertise, its research.

[00:16:51] Speaker 00:
And so I think that's what happened here.

[00:16:52] Speaker 00:
I don't think that can be taken as any sort of indication that Google was acting out of coercion or any sort of joint action for a couple of reasons.

[00:17:01] Speaker 01:
Well, when we have coercion or persuasion, do you think it's possible that the Mersey v. Missouri could have an impact

[00:17:08] Speaker 01:
on that definition?

[00:17:11] Speaker 00:
So I don't think it will have an impact on this case because of the weakness of the evidence in this case.

[00:17:16] Speaker 00:
So I think it's undisputed that this is a fact-specific analysis.

[00:17:20] Speaker 00:
And the record there is incredibly different.

[00:17:23] Speaker 00:
I think it's night and day from this case.

[00:17:25] Speaker 00:
Again, I think the most straightforward distinction here is the timeline issue.

[00:17:29] Speaker 00:
So that's with respect not only to the adoption of the policy, but also the takedown of the Kennedy videos, which was two years.

[00:17:36] Speaker 00:
after the communications at issue here.

[00:17:39] Speaker 00:
And there is just no evidence in the record that that removal had anything to do with anything that the government said two years earlier.

[00:17:46] Speaker 00:
And just quickly, I think that it is not the case that there's any communication here with Google about taking down Kennedy's videos.

[00:17:54] Speaker 00:
None of the instances of government speech mentioned Kennedy.

[00:17:58] Speaker 00:
None of them asked to take down particular videos.

[00:18:01] Speaker 00:
This is all just sort of general information sharing.

[00:18:04] Speaker 03:
If there had been evidence that the government had coerced Google at that time period you mentioned two years earlier, would that continue to apply later when Google took down videos pursuant to its new policy?

[00:18:16] Speaker 00:
I think the burden would be on Kennedy to present evidence suggesting that it did, and there's just no evidence here.

[00:18:23] Speaker 00:
We have the set of communications in 2021, right when the vaccine first came out, and then we don't have anything.

[00:18:30] Speaker 01:
But that's kind of a Weasley answer.

[00:18:33] Speaker 01:
You're saying it would, but his hypothetical, if there was evidence that the government had coerced back at the time prior, could that be evidence that it was ongoing?

[00:18:49] Speaker 00:
I think it would be some evidence.

[00:18:51] Speaker 00:
I'm not sure that it would be enough evidence because, of course, you'd have to look at the whole context and ask whether other things had happened in between those two time periods.

[00:18:58] Speaker 00:
So that's why I'm caveating it a little bit.

[00:19:02] Speaker 00:
And just to go back to the policy itself, I think that this is a policy that doesn't rely entirely on the government.

[00:19:09] Speaker 00:
It looks to the WHO and to the local authorities of various nations.

[00:19:15] Speaker 00:
And so Google is exercising discretion under that policy when it takes down videos pursuant to that policy.

[00:19:23] Speaker 00:
And of course, it's that December 2020 policy that Kennedy's videos were removed pursuant to.

[00:19:28] Speaker 00:
And just to make a point.

[00:19:30] Speaker 02:
If the federal agencies were to take a more active role in saying, we think this video is misinformed, you should take it down, this one, this one, this one, but there's no command.

[00:19:41] Speaker 02:
And let's say Google as a platform decides to accept all of those recommendations.

[00:19:46] Speaker 02:
I guess we're getting closer to the Ohanley example.

[00:19:48] Speaker 02:
Would that be enough to start to look like it's converting Google into a state actor?

[00:19:54] Speaker 00:
I think under O'Hanley, no.

[00:19:56] Speaker 00:
I think that is essentially the fact scenario of O'Hanley.

[00:19:59] Speaker 00:
And so in that situation, the court said this is just information sharing, but Twitter is exercising its own discretion as to what it does with the government's information, with the government's views on whether particular tweets are missing.

[00:20:12] Speaker 02:
But there still has to be a coercive element in your view to bring us over to the line.

[00:20:19] Speaker 00:
I think for joint action, there has to be, as O'Hanley says, inextricable intertwinement with respect to the specific decision at issue.

[00:20:26] Speaker 00:
And so if it is the case that the platform is exercising its own judgment with respect to that decision, just sort of looking at recommendations from the government, then that is not sufficient for joint action.

[00:20:37] Speaker 00:
And I do think sort of an important overarching point here is one that the court made both in O'Hanley and that the Supreme Court made in Halleck, which is that these tests for state action have to be applied rigorously.

[00:20:48] Speaker 00:
They can't be watered down, as my friend on the other side is suggesting.

[00:20:51] Speaker 00:
And the reason for that is that there are significant consequences to finding that a private party is a state actor.

[00:20:58] Speaker 00:
Because when that happens, we are saying that the constitutional constraints limit that private party's conduct.

[00:21:04] Speaker 00:
And so it loses the right to exclude from its property.

[00:21:07] Speaker 00:
It loses its own First Amendment rights to engage in editorial discretion, to take down a content with which it disagrees.

[00:21:14] Speaker 00:
And so that is a really substantial

[00:21:16] Speaker 00:
consequence and so you know what the what this court in the Supreme Court has said is that you know these tests have to be applied in a rigorous way this has to be it has to be limited circumstances and I just don't think that the evidence here comes anywhere close to that.

[00:21:29] Speaker 02:
So I think there are many videos still posted by Kennedy on YouTube, I think hundreds perhaps, and we're talking about two videos.

[00:21:40] Speaker 02:
Should that weigh in our analysis of irreparable harm, that there are still a significant number of videos still put up on the platform, as opposed to these two that were taken down, or not at all?

[00:21:51] Speaker 00:
So I think it does weigh in the equitable factors.

[00:21:54] Speaker 00:
I believe it's four videos that were taken down total, but I do think that it establishes that Kennedy can't show irreparable harm and that the balance of equities heavily favors Google here.

[00:22:06] Speaker 00:
And the reasons for that are that one of his main contentions, of course, is that this has hurt his campaign.

[00:22:13] Speaker 00:
We are talking about four videos that were removed for the specific reason that they contained vaccine misinformation under Google's policy.

[00:22:21] Speaker 00:
So everything else has stayed up.

[00:22:24] Speaker 00:
So it is true that, as Kennedy himself says, he has a campaign channel.

[00:22:28] Speaker 00:
There are many videos about him, by him, that are on the website.

[00:22:32] Speaker 00:
So that is all still available.

[00:22:34] Speaker 00:
So this was a very, very targeted removal of just four videos.

[00:22:39] Speaker 00:
proposition that this harm the campaign I think is just one that is not supported on this record and with respect to the balance of equities I'd say on Google side of course Google has a First Amendment right to engage in editorial discretion and that is what it has done here it is exercising its own right to decide you know this is speech that it doesn't want to promote or publish

[00:22:58] Speaker 00:
because it's decided that it's harmful to its users.

[00:23:01] Speaker 00:
And of course, Google has the right to do that.

[00:23:03] Speaker 00:
And that, of course, is, I think, a reason that the court should be very hesitant to find that a platform like Google exercising this right is acting as a state actor when there's just no evidence of coercion or any sort of entanglement here.

[00:23:20] Speaker 01:
I don't think we have any additional questions.

[00:23:24] Speaker 03:
Just one last question.

[00:23:26] Speaker 03:
With respect to what you just stated about no evidence, was it an abuse of discretion for the district court to decline to grant relief in terms of further discovery?

[00:23:35] Speaker 00:
I don't think it was.

[00:23:36] Speaker 00:
So just as a preliminary matter, I think that that argument is forfeited because Kennedy didn't raise it in his opening brief.

[00:23:42] Speaker 00:
But on its merits, I don't think it was an abuse of discretion.

[00:23:45] Speaker 00:
Kennedy had access here to the Murthy record, which itself included productions of contact between the government and YouTube and Google.

[00:23:54] Speaker 00:
And so I think we can assume he put in, to this record, everything that he found helpful when the district court asked him to identify what else he thought would be helpful.

[00:24:05] Speaker 00:
He said more communications between April and September 2021, which of course was already in the record.

[00:24:12] Speaker 00:
And so I think the district court made a very reasonable decision deciding that, as it said, there was a full record here already.

[00:24:18] Speaker 02:
I do actually have one more question.

[00:24:19] Speaker 02:
I'm sorry.

[00:24:21] Speaker 02:
Under the first step in Luger, could we resolve this under step one, whether Twitter exercised a state created right when it, sorry, I'm thinking about O'Hanley, but similar thing here.

[00:24:35] Speaker 02:
Did Google exercise a state created right when it took down the videos?

[00:24:40] Speaker 02:
It would seem not because it was based on its content moderation policy and its user agreement.

[00:24:48] Speaker 02:
Could we resolve this on that step one analysis alone, or do you think that, like O'Hanley, it would be important to look at this at the second step as well?

[00:25:00] Speaker 00:
I think the court could resolve it under that ground.

[00:25:02] Speaker 00:
I think Lugar supports that.

[00:25:03] Speaker 00:
But the court has moved away from that way of looking at the analysis.

[00:25:08] Speaker 00:
And so that's why we've made arguments under all these tests.

[00:25:12] Speaker 00:
I do think the fact that Google clearly is not exercising any sort of state created right here does.

[00:25:17] Speaker 00:
as the court said in O'Hanley, make it much harder to show state action because, of course, Google is acting as a private party sort of deciding what speech to exclude from its own property.

[00:25:26] Speaker 00:
And so that is the type of thing that private parties have done for a very long time.

[00:25:30] Speaker 00:
And so I think it becomes particularly difficult to show that somehow Google has assumed some sort of arm of the state type characteristics.

[00:25:42] Speaker 01:
We don't appear to have any additional questions.

[00:25:44] Speaker 01:
Thank you.

[00:25:44] Speaker 03:
Thank you, Ms.

[00:25:45] Speaker 03:
Anderson.

[00:25:46] Speaker 01:
Thank you for your argument.

[00:25:56] Speaker 04:
I would urge the court to read two things before you decide this appeal.

[00:26:02] Speaker 04:
The first is the dissent from Justice Sotomayor in the Halleck case.

[00:26:08] Speaker 04:
The second is the dissent from Justice Marshall

[00:26:12] Speaker 04:
in the Lloyd Corporation case, decided in 1972, because I think what the court will see when you look at those dissents and then compare the reasoning in those dissents to the way this court has traditionally treated the state action doctrine, looking, as the Supreme Court said in Brentwood Academy and as this court said in Howerton versus Gabbica, that the criteria used to determine state action are not rigid and should be applied

[00:26:42] Speaker 04:
to see solely to determine whether seemingly private action is fairly attributable to the state.

[00:26:50] Speaker 04:
And when you look at what's happened, Your Honor, starting in the case of the Marsh versus Alabama case, the Logan Valley case, the Lee versus Katz case, historically,

[00:27:02] Speaker 04:
this Court and the Supreme Court have given, have shown preference to speech.

[00:27:07] Speaker 04:
And in this debate between private property and speech, as Justice Marshall said in his Lloyd Corp.

[00:27:14] Speaker 04:
dissent, when the competing interests are fairly weighed between those two, the balance can only be struck in favor of speech.

[00:27:23] Speaker 04:
So I would submit that that is the difference here.

[00:27:26] Speaker 04:
That is something that we call on this Court to respect and to remember.

[00:27:30] Speaker 04:
and to grant the injunction in Mr. Kennedy's favor.

[00:27:34] Speaker 04:
So unless the court has any questions, I would submit.

[00:27:36] Speaker 01:
I don't appear to.

[00:27:37] Speaker 01:
Thank you both for your argument.

[00:27:38] Speaker 01:
This matter will stand submitted.