First Amended Complaint for Damages and Injunction, p. 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 T. Matthew Phillips, Esq . T Matthew [email protected]10040 West Cheyenne Avenue #170 Las Vegas, Nev. 89129 Telephone: (323) 314-6996 Plaintiff’s Counsel CALIFORNIA SUPERIOR COURT LOS ANGELES COUNTY, CALIFORNIA _____________________________ ) Case No: BC 714 084 CHRISTIE SCARBOROUGH, ) GREG FESSLER, ) FIRST AMENDED COMPLAINT RUDY TWOMOON, ) FOR DAMAGES AND INJUNCTION. GENA SIMKINS, ) ) Violation of the ‘Right to Freely Speak’ Plaintiffs, ) [Calif. Const., Art. 1, Sec. 2] ) vs. ) ) FACEBOOK, INC., ) a Delaware Corporation ) and DOES 1 – 9, ) ) Defendants. ) Hon. Samantha P. Jessner, Judge ______________________________ ) Dept. 31 – (No Trial Date) / / / / / / / / / / / /
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Plaintiff’s Counsel€¦ · 07/09/2018 · Defendant’s online entities, Facebook and Instagram. Plaintiffs’ allegations are made interchangeably as against both Facebook and
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First Amended Complaint for Damages and Injunction, p. 1
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T. Matthew Phillips, Esq. T Matthew [email protected] 10040 West Cheyenne Avenue #170 Las Vegas, Nev. 89129 Telephone: (323) 314-6996 Plaintiff’s Counsel
CALIFORNIA SUPERIOR COURT
LOS ANGELES COUNTY, CALIFORNIA
_____________________________
) Case No: BC 714 084
CHRISTIE SCARBOROUGH, )
GREG FESSLER, ) FIRST AMENDED COMPLAINT
RUDY TWOMOON, ) FOR DAMAGES AND INJUNCTION.
GENA SIMKINS, )
) Violation of the ‘Right to Freely Speak’
Plaintiffs, ) [Calif. Const., Art. 1, Sec. 2]
)
vs. )
)
FACEBOOK, INC., )
a Delaware Corporation )
and DOES 1 – 9, )
)
Defendants. ) Hon. Samantha P. Jessner, Judge
______________________________ ) Dept. 31 – (No Trial Date)
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First Amended Complaint for Damages and Injunction, p. 2
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JURISDICTIONAL ALLEGATIONS
(1) Plaintiff, CHRISTIE SCARBOROUGH, is an individual and resident of the
Commonwealth of Virginia. Plaintiff is a stay-at-home mom who uses Facebook
and Instagram. The Virginia Constitution provides as follows: “[A]ny citizen may
freely speak, write, and publish his sentiments on all subjects,” [Virginia
Constitution, Art. 1, Sec. 2]
(2) Plaintiff, RUDY TWOMOON, is an individual and resident of the State of
Michigan. The Michigan Constitution provides as follows: “Every person may
freely speak, write, and publish his sentiments on all subjects,” [Michigan
Constitution, Art. 1, Sec. 7]
(3) Plaintiff, GENA SIMKINS, is an individual and resident of the State of
Montana. The Montana Constitution provides as follows: “Every person shall be
free to speak or publish whatever he will on any subject,” [Montana Constitution,
Art. 2, Sec. 7]
(4) Plaintiff, GREG FESSLER, is an individual and resident of the State of Ohio.
The Ohio Constitution provides as follows: “Every citizen may freely speak, write,
and publish his sentiments on all subjects,” [Ohio Constitution, Art. 1, Sec. 11].
(5) Plaintiffs are politically active and outspoken in their opinions. Plaintiffs’
claims arise out of alleged censorship policies and practices maintained by
Defendant’s online entities, Facebook and Instagram. Plaintiffs’ allegations are
made interchangeably as against both Facebook and Instagram.
(6) Defendant, FACEBOOK, INC. (“FACEBOOK”), is an active corporation duly
registered with the California Secretary of State. Defendant, FACEBOOK, is a
Delaware corporation, entity number: C2711108. Defendant maintains a principal
place of business at: 1601 Willow Road, Menlo Park, Calif. 94025. As a
California corporation, Defendant, FACEBOOK, must abide by the California
Constitution, case law, and statutes; (it’s irrelevant where any Plaintiff resides).
Defendant owns and operates the online entities “Facebook” and “Instagram.”
First Amended Complaint for Damages and Injunction, p. 3
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(7) Defendants, DOES 1 – 9 are sued under fictitious names. When Plaintiffs
learn their true and correct names, Plaintiffs will amend. Plaintiffs allege that all
DOE Defendants are a proximate cause of Plaintiffs’ harm.
(8) This Court has jurisdiction to hear this matter because Defendants do
business in California and the Court may resolve these issues under California law.
Plaintiffs seek damages in a dollar amount that exceeds the jurisdictional minimum
of this Court. Plaintiffs also seek injunctive relief. Plaintiffs demand a jury trial.
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First Amended Complaint for Damages and Injunction, p. 4
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CAUSE of ACTION No. 1
(9) Violation of the Right to Freely Speak: Plaintiffs, and each of them,
now bring this Cause-of-Action No. 1—violation of the Right to Freely Speak—
as against Defendant, FACEBOOK, INC., (“FACEBOOK”), pursuant to California
Constitution, Art. 1, Sec. 2.
(10) The California Constitution: The California Constitution, Art. 1, Sec. 2,
in relevant part provides—
“(a) Every person may freely speak, write and publish his or her
sentiments on all subjects, being responsible for the abuse of this right.
A law may not restrain or abridge liberty of speech or press.”
[Calif. Const., Art. 1, Sec. 2; underscores and italics added]
(11) The Right to Freely Speak: California law guarantees to all persons the
right to “freely speak,” [Calif. Const., Art. 1, Sec. 2]. Under California state law,
Plaintiffs enjoy the constitutional right to “freely speak, write and publish [their]
sentiments on all subjects,” [Calif. Const., Art. 1, Sec. 2].
(12) State vs. Federal Constitutions: Notably, while the First Amendment merely
restrains government, (“Congress shall make no law”), the California Constitution
affirmatively empowers individuals—to “freely speak, write and publish [their]
sentiments on all subjects,” [Calif. Const., Art. 1, Sec. 2].
(13) Plaintiffs Demand Their Right to Freely Speak: By bringing this lawsuit,
Plaintiffs demand their constitutional right to “freely speak, write and publish”—
at FACEBOOK’S website—“[their] sentiments on all subjects”—as guaranteed by
California Constitution, Art. 1, Sec. 2.
(14) Defendant Denies to Plaintiffs the Right to Freely Speak: At its website,
FACEBOOK wrongfully denies to Plaintiffs the constitutional right to “freely speak,
write and publish [their] sentiments on all subjects,” [Calif. Const., Art. 1, Sec. 2].
Indeed, FACEBOOK engages in continuous and systematic violations of the
constitutional “right to freely speak.”
First Amended Complaint for Damages and Injunction, p. 5
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(15) FACEBOOK is a Business Establishment: FACEBOOK is a website where
members of the public post opinions, comments, criticisms, and photographs.
FACEBOOK is a business establishment because it is open to the general public.
FACEBOOK’S website is not private, but rather, a place of public accommodations.
(16) How FACEBOOK Violates the Law: FACEBOOK violates California law by
infringing on the constitutional “right to freely speak,” [Calif. Const., Art. 1, Sec. 2].
First, FACEBOOK censors Plaintiffs, i.e., by deleting their posts, and second,
FACEBOOK punishes Plaintiffs, i.e., by suspending their ability to post, which is
known as being sentenced to “Facebook Jail.” (Note: “Facebook Jail” sentences
range from 24 hours to 30 days; first-time offenders receive 24-hour sentences,
while repeat offenders, like Plaintiffs, receive 30-day sentences.)
(17) How FACEBOOK Violates Plaintiffs’ Rights: FACEBOOK violates Plaintiffs’
“right to freely speak” in two separate and distinct ways:
(i) FACEBOOK wrongfully censors Plaintiffs, by deleting their posts—
which results in violations of the “right to freely speak.”
[Calif. Const., Art. 1, Sec. 2]; and further,
(ii) FACEBOOK wrongfully punishes Plaintiffs, with “Facebook Jail”
by suspending their ability to post—for periods of up to 30 days—
which likewise results in violations of the “right to freely speak.”
[Calif. Const., Art. 1, Sec. 2].
(18) FACEBOOK Censorship & FACEBOOK Jail: On many occasions, FACEBOOK
has censored Plaintiffs by deleting their posts, in addition, FACEBOOK has punished
Plaintiffs by sentencing them to “Facebook Jail,” for periods of up to 30 days,
during which FACEBOOK suspended Plaintiffs’ ability to post. Again, FACEBOOK
violates Plaintiffs’ rights in two different ways, essentially, by restricting access:
(i) by deleting Plaintiffs’ posts, (i.e., censorship), and (ii) by suspending Plaintiffs’
ability to post, (i.e., “Facebook Jail”), both of which result in violations of the
constitutional “right to freely speak,” [Calif. Const., Art. 1, Sec. 2].
First Amended Complaint for Damages and Injunction, p. 6
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(19) Federal Internet Law: Under federal law, FACEBOOK is deemed an