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No.

20-15188

IN THE UNITED STATES COURT OF APPEALS


FOR THE NINTH CIRCUIT

CHRISTOPHER KING, J.D.


A/K/A KINGCAST

Plaintiff-Appellant,

v.

FACEBOOK, INC.; JENNIFER MARIE MALONE

Defendants-Appellees.

APPELLANT’S OPENING BRIEF

Oral Argument Requested

On Appeal from the United States District Court


Northern District of California
No. 3:19-CV-01987-WHO
Honorable William H. Orrick

_________________________
Christopher King, J.D.
A/K/A KingCast
c/o Stafne Law and Advocacy
239 N. Olympic Avenue
Arlington, WA 98223
617.543.8085

APPELLANT PRO SE
TABLE OF CONTENTS……………………………………………………i

TABLE OF AUTHORITIES……………………………………..…………ii

INTRODUCTION………………...………………………………….…..….1

DEDICATION TO BETTY JEAN KING……….…………......………..….1

JURISDICTIONAL STATEMENT……………………..……………....….3

ISSUE(S) PRESENTED……………………..…………………………..….3

STATEMENT OF THE CASE………………………..………………..…..4

SUMMARY OF THE ARGUMENT……………………..……………..….5

ARGUMENT………………………………………………..…….……..….6

A. Standard Of Review………………………………………………….6

B. The Proper Analysis of this Case was Not Addressed


by the Lower Court………………………………………………..….7

C. Facebook’s Unconscionable Conduct Provides an Avenue of


Relief…………………………………………………………….……9

D. Facebook is Liable for First Amendment Violations………………..16

CONCLUSION……………….………………………………….……..….26

STATEMENT OF RELATED CASES………………………….……..….27

CERTIFICATE OF COMPLIANCE……………………….…………..….28

CERTIFICATE OF
SERVICE……………………………………...………………………..….29

i
TABLE OF AUTHORITIES

Cases

Wadler et al v. Custard Insurance Adjusters, Inc, 17-CV-05840


(11 April 2018)………………………………………………………….15

Bridge Fund Capital Corp. v. Fastbucks Franchise Corp.,


622 F.3d 996, 1004 (9th Cir. 2010)………………………..……………16

Lhotka v. Geographic Expeditions, 181 Cal. App. 4th 816 …….…..…..16

Taxpayers Watchdog, Inc. v. Stanley, 819 F.2d 294, 297


(D.C. Cir. 1987) ….……………………………………………………..17

Pruneyard v. Robins, 447 U.S. 74 (1980)………………………...….…. 18,


20, 22

Marsh v. Alabama, 326 US 501 (1946)………………………...……18, 19

Amalgamated Food Employees Union Local 590 et al. v. Logan Valley


Plaza, Inc 390 U.S. 308 (1968)………………………..…………………18

Lloyd Corp., Ltd. v. Tanner et al. ……………………………………...…18

Marsh v. Alabama and Amalgamated Food Employees Union Local 590 et


al. v. Logan Valley Plaza, Inc……………………………………..…..…18, 19

Hudgens v. National Labor Relations Board 424 U.S. 507


(1976)…………………………………………………………………..…..19

Freedom Watch/Laura Loomer v. Google et. Al. U.S. Ct. App D.C.
19-730 …………………………....……………...…………… 20, 23, 25, 27

Ralphs Grocery Co. v. United Food and Commerical Workers Union Local
8, No. S185544 (Dec. 27, 2012)………………………..…………………20

Fashion Valley Mall, LLC v. National Labor Relations Bd, 451 F.3d 241
(D.C. Cir. 2006)………………………………………………….…..…………. 21

ii
DVD Copy Control Assn., Inc. v. Bunner, 31 Cal.4th 864, 877,
4 Cal.Rptr.3d 69, 75 P.3d 1.) (2003). ……………………………….…….21

Fed. Agency of News LLC v. Facebook, Inc 395 F. Supp. 3d 1295


(ND Cal 2019)…………………………….………………………………..22

Lloyd and Landgon v. Google, 474 F.Supp.2d 622 (2007)…….....……22, 23

Prager Univ. v. Google LLC 2018 WL 1471939 (2019) ……...…………..22

Packingham v. North Carolina, 137 S. Ct. 1730 (2017)…………………...23

Reno v. American Civil Liberties Union, 521 U. S. 844 (1997)………...…23

Statutes

28 U.S.C. §1331 ………………………………………………………..….3

28 U.S.C. §1332 ………………………………………………………..….3

47 U.S.C. §230 ….……………………………….……………………..….3

Fed. R. App. P. 32(a)(7)…………………………………………………..17

iii
Media and Treatises

Facebook now faces 47 attorneys general in antitrust probe


CNET, Oct. 22, 2019 ……………………………………….. ………..….6

The Communication Decency Act Gone Wild: A Case for Renewing the
Presumption Against Preemption (2014 Seattle University JD Candidate
Ryan JP Dyer).
https://digitalcommons.law.seattleu.edu/cgi/viewcontent.cgi?article=2223&c
ontext=sulr …………………………………….…………………………..7

Can the Courts Tame the Communications Decency Act? The


Reverberations of Zeran v. America Online David Lukmire NYU Law Oct.
2010
https://www.law.nyu.edu/sites/default/files/upload_documents/NYU-
Annual-Survey-66-2-Lukmire.pdf………………………………………..7

Facebook while black: Users call it getting 'Zucked,' say talking about
racism is censored as hate speech
Jessica Guynn, USA Today, April 24, 2019
https://www.usatoday.com/story/news/2019/04/24/facebook-while-black-
zucked-users-say-they-get-blocked-racism-
discussion/2859593002/?fbclid=IwAR1v3n_Duzo3ynbDepsmjtdfYDJyrkgm
pIT8LpDXiW2M7vLzJ_V22NsxjoQ……………………………………..24

Platform Access is a Civil Right.


A reflection on Lyndon Baines Johnson and the 1964 Civil Rights Act.
HumanEvents.com
By Will Chamberlain
May 3, 2019……………………………………………………………….24

iv
INTRODUCTION

This Court is called upon to examine one of the more pressing concerns of

our contemporary digital age: Exactly how much of our liberty are we willing to

abdicate to private global corporate communication behemoths that usurp the

function as governmental entities? These entities then proceed to censor at their

whimsy while they farm their users for information used to make billions of dollars

every year. Appellant respectfully contends that this Honorable Court has the full

authority and Jurisdiction to properly interpret existing statutory and decisional law

to help stem the tide of this unprincipled conduct. It is a matter so pressing that 77

Civil Rights groups have joined to complain about unfair treatment and Facebook's

own co-founder Chris Hughes stated in the New York Times that Facebook must

be broken up in order to protect our Democracy.

DEDICATION TO BETTY JEAN KING

This Lawsuit and its attendant documentary are dedicated to my mother,

Betty Jean King. She came from nothing in rural Tennessee to become a respected

mother who cooked dinner nearly every day, Human Resource Specialist and

college graduate at fifty (50) years of age. She told Appellant in no uncertain terms

“Son you need to get yourself a blog” in 1998. As a result Appellant ended up

posting public videos on the Internet before YouTube and Facebook ever existed,

in 2004. And the rest is history in the making not only on this case but other
research projects that Appellant is involved in that cannot be discussed in this

space at this time.

Unfortunately Facebook had Defendant on a bogus, unwarranted 30-day

user ban when she passed from this Earth from early onset frontal lobe dementia.

As such, Plaintiff could not even publicly discuss her life or his love for her during

this time. You only lose your Mother exactly once……When Plaintiff explained

this to Facebook the powers-that-be at Facebook and their attorneys did not care.

Plaintiff-Appellant does care, and that is why we are here today – after substantial

research and reflection.

https://www.youtube.com/watch?v=IYdgFL28WNI

2
JURISDICTIONAL STATEMENT
The Lower Court obtained Jurisdiction pursuant to Diversity Jurisdiction 28
U.S.C. §1332 and Federal Question 28 U.S.C. §1331 owing to the First
Amendment and 47 U.S.C. §230.
ISSUE(S) PRESENTED

1. Whether this Court has authority to find that Congress did not intend the

absurd result that Facebook should have carte blanche to create the World’s largest

speech platform devoid of any and all potential liability under 47 U.S.C. §230?

2. Whether Facebook Amicus Counsel David P. Lukmire’s analysis is

prevailing as he claims that Courts should almost never dismiss other claims, such

as allegations under civil rights laws or breach of contract claims, on section 230

grounds, for they are much too far removed from the tort of defamation.

3. Whether the Court failed to address applicable First Amendment Law.

4. Whether the Lower Court failed to review this case as a matter of and

Unconscionable Adhesion Clause Contract.

3
STATEMENT OF THE CASE

Plaintiff filed suit in the Northern California San Francisco District Court on

April 15, 2019 (Dkt. 1) Oral Argument was held July 17, 2019.

The Court Granted Summary Judgment to Defendant on all Claims on

September 5, 2019 (Dkt. 44) granting Plaintiff Leave to Amend after reviewing

Plaintiff’s post-Hearing memoranda on First Amendment and Contractual matters.

After Plaintiff filed a First Amended Complaint alleging First Amendment

and Unconscionable Contract on September 29, 2019 (Dkt. 47) the Court issued a

Final Order dismissing all Claims on December 3, 2020 (Order to Show Cause

Dkt. 55).

Plaintiff filed a Rule 59 Motion to Alter Judgment on December 31, 2019

(Dkt. 57) and the Court denied same on January 9, 2020 without requiring

Defendant to respond. Plaintiff filed a Request for Clarification on January 22,

2020 (Dkt. 60 ) and the Court denied same on January 30, 2020, again without

required response from Defendant. Plaintiff timely filed his Notice of Appeal on

February 10, 2020 (Dkt. 62) and now files this timely Opening Brief.

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SUMMARY OF THE ARGUMENT

Appellant cuts right to the chase: Facebook is the sort of company that needs

to be broken up in order to protect our Democracy and the facts of this particular

case clearly demonstrate that Plaintiff is entitled to relief.

To wit: Facebook’s co-founder Chris Hedges noted in the New York Times that
Facebook needs to be broken up, just as Plaintiff has been arguing for the better
part of a year now.
https://howtosuefacebook.blogspot.com/2019/05/kingcast-and-national-review-
writer.html

To wit: This is the first case of its kind to incorporate actual claims of viable
systemic Civil Rights issues against Defendant by 77 Civil Rights, media and legal
associations including a boycott by the NAACP, Country’s oldest Civil Rights
Organization & a forced Civil Rights Audit

To wit: This is the first case of its kind to incorporate legal tools of analysis
provided by legal scholars including a Facebook Amicus lawyer that provide a
legal framework for this Court to help regulate Defendant without engaging in
imprudent Judicial Activism.

To wit: This is the first case in which we have a Facebook Vice President of
Diversity who publicly stated in his resignation that discrimination is palpable and
is occurring all over the place – in the workplace and on the platform according to
its former VP of Diversity Mark S. Luckie.

To wit: New York Attorney General Letitia James on Tuesday said 47 attorneys
general are now part of an investigation into Facebook on antitrust matters. The
investigation, which was announced in September, will focus on Facebook's
dominance and potential anticompetitive conduct stemming from that position.

"Our investigation now has the support of 47 attorneys general from around the
nation, who are all concerned that Facebook may have put consumer data at risk,
reduced the quality of consumers' choices, and increased the price of advertising,"
James said in a press release. "We will use every investigative tool at our disposal
to determine whether Facebook's actions stifled competition and put users at risk."
5
And Facebook doesn't just face an antitrust investigation from these states. In June,
the House antitrust subcommittee said it was launching an investigation of
Facebook, Google and other tech companies. The Federal Trade Commission and
the Department of Justice are also both reportedly investigating Facebook over
antitrust concerns.

CNET,
“FACEBOOK NOW FACES 47 ATTORNEYS GENERAL IN ANTITRUST
PROBE”
The investigation has picked up support from across the US.

CNET, October 22, 2019


https://www.cnet.com/news/facebook-now-faces-47-attorneys-general-in-
antitrust-probe/

ARGUMENT

A. Standard Of Review

This Court reviews the Lower Court on conclusions of law de novo and its

conclusions of fact for clear error. Under both standards it is clear that the Court

did not make any reasonable inferences in Appellant’s favor or the Case would

have continued to trial because the Court at once ignored salient facts and also

reached the wrong conclusions of Law. In so doing the Court also refused to

address its own recent case law on Unconscionable Adhesion Clauses, i.e. Wadler

et al v. Custard Insurance Adjusters, Inc, 17-CV-05840 (11 April 2018). See

Bertelsen v. Harris, 537 F.3d 1047, 1056 (9th Cir. 2008) and Plaintiff’s Request for

Clarification on Rule 59 Denial (Dkt. 60).

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B. Proper Analysis of this Case was Not Addressed by the Lower Court.

Seattle area attorney Ryan JP Dyer weighed in just for years ago:

The first courts to apply section 230 inferred an exaggerated statutory


meaning and intent to the statute’s immunity-granting provision, rarely
reexamining the basis of those findings.

Turning the tide against a lawless no-man’s-land on the Internet starts with a
reexamination of Congress’s intended scope of immunity and the implicit
preemptive effect of section 230. Beginning with the presumption that
Congress did not intend to preempt an entire field of traditional state police
power, and after closely examining the textual components of section 230 as
well as the legislative history, it soon becomes apparent that immunity is
only applicable in a specific set of circumstances. In applying this analysis,
courts could incorporate some form of objective bad faith determination to
distinguish between websites that are furthering the purposes of section 230,
as opposed to those that are merely posing as good Samaritans.

The Communication Decency Act Gone Wild: A Case for Renewing the
Presumption Against Preemption (2014 Seattle University JD Candidate Ryan JP
Dyer).
https://digitalcommons.law.seattleu.edu/cgi/viewcontent.cgi?article=2223&context
=sulr

Defendant argued at p.9 of its Motion to Dismiss:

“The terms of use to which Plaintiff agreed gave Facebook the express
permission to “remove any content or information you post on Facebook if
we believe that it violates this Statement.” Duffey Decl., ¶¶ 4-6, Exs. A-D §
5.2 (emphasis added).

The problem is that nobody reasonably believes that Plaintiff violated anything;

same with the USA Today Facebook victims in Plaintiff’s Judicial Notice Motion.

Facebook is hiding behind a law and using it as sword and shield to play Thought

Police on the Internet, and this Court is entitled to – indeed must – allow a Jury to

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take an objective look into this because it completely dovetails with Attorney

Lukmire’s analysis and Plaintiff’s analysis.1

See David Lukmire's excellent piece, Can the Courts Tame the

Communications Decency Act? The Reverberations of Zeran v. America Online.

Attorney Lukmire has written Amici Briefs alongside and in support of Facebook

and Microsoft: He is an Industry expert:


https://www.law.nyu.edu/sites/default/files/upload_documents/NYU-Annual-Survey-66-2-Lukmire.pdf

Second, before deciding whether an online entity is immune because of the


type of entity it is or the type of role it played in disseminating illegal content,
courts should consider whether section 230 should apply based on the theory of
liability advanced by the plaintiff. The case for restricting the subject matter of
section 230 immunity is equally strong......
One thing is for certain: unless courts narrow their interpretations of
section 230, deserving plaintiffs will be without redress. As discussed, the
statute should be interpreted in light of its language, which clearly sounds in
defamation law. Allowing certain claims that are close to textbook
defamation will help clear up whether the plaintiff has artfully pleaded
garden variety tort claims in order to evade the proper boundaries of section
230. Courts should almost never dismiss other claims, such as
allegations under civil rights laws or breach of contract claims, on
section 230 grounds, for they are much too far removed from the tort of
defamation. (emphasis added)

1
This Court must now find that Congress meant to vitiate any and all objective analysis in order
to Affirm the Decision of the District Court, and that would be an absurd result. However, the
first rule of Statutory Construction is that Congress does not intend for an absurd result to its
legislative efforts.
8
C. Facebook’s Unconscionable Conduct Provides an Avenue of Relief.

The Lower Court held: Assuming that the contractual basis for King’s
breach claim is the Terms of Use (Terms) which Facebook requires users to agree
to, the claim lacks merit. As courts in this District have explained, while
Facebook’s Terms “place restrictions on users’ behavior,” they “do not create
affirmative obligations” on Facebook. (Dkt. 55)
This is a problem: A hard and fast ruling like this allows facebook not only
to censor individual posts at whim, but to commit a whole host of other actions too,
up to and including adverse retaliatory actions against third parties who supported
Plaintiff in his underlying lawsuit against Facebook. See the Appendix at Dkt. 53
showing how two women suffered adverse actions on their Instagram accounts
after posting T-Shirts supporting Plaintiff.2 (Excerpt of Record #1 herein).

2
Facebook owns Instagram.
9
10
Facebook also retaliated against Plaintiff by hiding his Civil Rights posts in

the United Kingdom without ever explaining why this was done because the

content did not violate any ToS whatsoever. They also knew that Plaintiff was not

engaged in hate speech in the first place when he complained of being “treated like

a nigger,” or when he accused Facebook of discriminating against rapper Lil’B

when he said “Facebook gunned down another nigger – we’re dropping like flies.”

As a member of a protected class the Facebook Terms of Service purportedly

protect exactly that sort of speech when self-reflective but instead the Lower Court

allowed Defendant to completely ignore such ToS without any recompense

whatsoever.

11
Meanwhile Facebook allows a white female (actually a friend of a friend of

Plaintiff’s) to call herself “Cracker Trash!”

The crowning point of achievement came when Plaintiff filed his

Complaints to the Internet juggernaut: Whilst promising prompt and meaningful

review, Facebook instead maliciously sat on Plaintiff’s Appeal for two (2) whole

weeks of a four (4) week suspension, also without recompense. Therefore

Facebook truly can do exactly whatever it chooses to do, to whomever it chooses

to do it at its own whimsy with absolutely zero accountability. Frankly, that is

scary. Frankly, it is disgusting. Congress did not intend such results.

12
13
Moreover Facebook made an entire blog “How to Sue Facebook”

inappropriate and in violation of Terms of Service the minute that Donald Trump

supporters joined forces with Plaintiff. (Dkt. 53)

https://howtosuefacebook.blogspot.com/

14
Consider this: Facebook, resplendent in its Hegemony, actually blocked

posting of How to Sue Facebook blog even though the exact same content was at

all times mirrored on Chris King’s First First Amendment. See Transcript of Oral

Argument filed at Dkt 36 (Excerpt of Record #2 herein).

https://christopher-king.blogspot.com/2019/02/facebook-censorship-taught-in-seattle.html

https://howtosuefacebook.blogspot.com/2019/02/facebook-censorship-taught-in-seattle.html

******
The absolute ability to do whatever Facebook desires while placing all

matter of conditions on users is fascinating in and of itself because that begs

Plaintiff’s entire point on the First Amendment as well as the Contractual issue:

The Adhesion Contract is, in and of itself, a mere adhesion clause, clickwrap

illusory Contract that is subject to the very analysis set forth by His Honor in

Wadler et al v. Custard Insurance Adjusters, Inc, 17-CV-05840 (11 April 2018),

the Court DID NOT address in its Dismissal. To wit from Plaintiff’s Memorandum

Contra 12(b)(6):

In this case we have an overly harsh situation and His Honor is already
aware of the harsh nature of clickwrap/adhesion clause agreements and finds
them presumptively suspect. As Plaintiff has noted on prior occasion at his
blog that Defendant hates, see Wadler et al v. Custard Insurance Adjusters,
Inc, 17-CV-05840 (11 April 2018), Fees awarded five (5) days after Oral
Argument in the case at bar, or 22 July 2019. The case involved clickwrap or
adhesion-clause abuse in an unequal arms-length situation. Mark Zuckerberg
alone is worth $85B. Plaintiff is worth approximately $30,000.00 at the
moment, or .0000003529% of that. From Wadler:

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Procedural unconscionability occurs where a contract or clause involves
oppression, consisting of a lack of negotiation and meaningful choice, or
surprise, such as where the term at issue is hidden within a wordy document.
Id. “California law treats contracts of adhesion, or at least terms over which
a party of lesser bargaining power had no opportunity to negotiate, as
procedurally unconscionable to at least some degree.” Bridge Fund Capital
Corp. v. Fastbucks Franchise Corp., 622 F.3d 996, 1004 (9th Cir. 2010).

Substantive unconscionability occurs where the provision at issue


“reallocates risks in an objectively unreasonable or unexpected manner.”
Lhotka, 181 Cal. App. 4th at 821 (citation omitted). “Substantive
unconscionability focuses on the one-sidedness or overly harsh effect of the
contract term or clause.” Id. at 824–25 (citation omitted).........
https://howtosuefacebook.blogspot.com/2019/08/judge-in-facebook-cda-
230-immunity.html….

….How long can this consumer and user abuse continue while entities like
Facebook can just run amok and make a mockery of our Laws and larger
implications of First Amendment Freedoms in the "the modern public
square” as Justice Kennedy calls it? Facebook Amicus Counsel David P.
Lukmire said it should have ended a long time ago as noted above.

D. Facebook is Liable for First Amendment Violations.

17. According to Senator Ted Cruz, as reported in the New York Times, “if
internet companies are not a ‘neutral platform,’ they should not be protected by a
law known as Section 230 of the Communications Decency Act, which (some
claim) gives companies broad legal immunity for what people put on their
services.”3

3
So too are blacks. Protected Class. Insular Minority. We all know the Rules here. All of it has
to stop, and when a particular Plaintiff can show the presence of active bad faith and deceit, that
Plaintiff is entitled to a Jury Trial, just as Attorney Lukmire opined. It’s really simple: The
Emperor has no clothes.... at least not anymore S/He doesn’t.

16
18. In the same article, Rep. Kevin McCarthy stated, “Social media platforms are
increasingly serving as today’s town squares....But sadly, conservatives are too
often finding their voices silenced.”3

98. Defendants created, operate, and control public platforms that are for public
use and public benefit and invite the public to utilize their platforms as a forum for
free speech.

99. Defendants act as quasi-state actors because they regulate their public
platforms, thereby regulating free speech within their public forums,
Google/YouTube, Facebook, and Twitter, Apple, Instagram as well as the other
social media companies or entities. 4

The Lower Court incorrectly DISMISSED all of these concerns. In rejecting

the entire opinion of the Lower Court the Court of Appeals succinctly stated in its

per curiam ORDER:

“Upon consideration of the motion for summary affirmance, the oppositions

thereto, and the replies, it is ORDERED that the motion for summary affirmance

be denied. The merits of the parties’ positions are not so clear as to warrant

summary action. See Taxpayers Watchdog, Inc. v. Stanley, 819 F.2d 294, 297

(D.C. Cir. 1987) (per curiam). It is FURTHER ORDERED that the Appellees be

limited to one joint brief, not to exceed 13,000 words. See Fed. R. App. P.

32(a)(7).

4
As noted in Plaintiff Loomer’s First Amendment Complaint.
17
Since then the Legal Heads of State in Washington, DC have joined together

in Amicus Briefs as noted elsewhere in this Brief.

***********

So where does that leave us, then: That leaves us a quick drive up the

motorway from Pruneyard v. Robins, 447 U.S. 74 (1980) to this Court is where it

leaves us: Because appellants have not shown that the limited right of access held

to be afforded by the California Constitution burdened their First and Fourteenth

Amendment rights in the circumstances presented, I join the judgment of the

Court. I do not interpret our decision today as a blanket approval for state efforts to

transform privately owned commercial property into public forums. Any such state

action would raise substantial federal constitutional questions not present in this

case. (Pruneyard, 101) .

Attorney Craig L. Finger provides a succinct history in his published piece,


“Rights of Shopping Center Owners To Regulate Free Speech and Public
Discourse.”
https://www.foxrothschild.com/publications/rights-of-shopping-center-owners-to-
regulate-free-speech-and-public-discourse/

More than 20 years later, in 1968, in Amalgamated Food Employees Union Local
590 et al. v. Logan Valley Plaza, Inc.,a Pennsylvania state court granted an
injunction prohibiting union members from picketing a supermarket in a shopping
center on the basis that the union’s conduct constituted a trespass on the property
of the supermarket and the shopping center. However, the U.S. Supreme Court,
following the rationale in Marsh v. Alabama, reversed the state court’s decision
and held that since the shopping center was freely accessible and open to the
public, the state could not use its trespass laws to exclude members of the public
wishing to exercise their First Amendment rights.

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The opinion of the U.S. Supreme Court noted that circumstances might exist where
reasonable regulations governing the exercise of First Amendment rights might be
warranted, such as where the property is not ordinarily open to the public, where
the exercise of First Amendment rights would unduly interfere with the normal use
of the property by other members of the public, etc. The U.S. Supreme Court
reserved judgment as to the right to prohibit such protests if unrelated to the
operations of the shopping center.

Just four years later, in 1972, the U.S. Supreme Court decided Lloyd Corp., Ltd. v.
Tanner et al. In this case, the shopping center owner sought to prevent protesters
from distributing hand bills protesting the Vietnam War in keeping with its strict
policy prohibiting handbilling. The district court (following the decisions in Marsh
v. Alabama and Amalgamated Food Employees Union Local 590 et al. v. Logan
Valley Plaza, Inc.) found that since the shopping center was generally open to the
public, it was the equivalent of a public business district and the prohibition against
distributing hand bills violated the protesters’ First Amendment rights. The district
court issued an injunction restraining the shopping center owner from interfering
with such rights. The U.S. Court of Appeals for the Ninth Circuit upheld the
district court’s ruling. The shopping center owner appealed to the U.S. Supreme
Court claiming the court’s decision violated its private property rights protected by
the First and Fifth Amendments. The U.S. Supreme Court reversed the decision of
the lower courts and vacated the injunction on the grounds that the activity in this
case was not related to the shopping center’s operations.

In 1976, the U.S. Supreme Court decided Hudgens v. National Labor Relations
Board. In this case, striking warehouse employees picketed their employer’s retail
store in a privately owned shopping center. The owner threatened to have the
striking employees arrested for trespass if they continued to picket. The union then
filed an unfair labor practice charge against the owner with the National Labor
Relations Board. Relying on the Logan Valley Plaza case, the NLRB issued a
cease and desist order against the owner. The case was appealed to the U.S. Court
of Appeals for the Fifth Circuit, which remanded the case back to the NLRB in
light of the U.S. Supreme Court’s decision in the Lloyd Corp. case. The U.S.
Supreme Court overruled the circuit court’s order and held the striking union
members did not have a First Amendment right to enter the mall for the purpose of
picketing. The U.S. Supreme Court stated “that the rationale of Logan
Valley did not survive the Court’s decision in the Lloyd case.” This case essentially
overruled the Logan Valley case, and the pendulum began to swing back in favor
of shopping center owners.

19
Fortunately, there is good news for shopping center owners in most states.
Except for California, which still follows the rationale set forth in the
Pruneyard case, and several other states such as New Jersey, Massachusetts
and Colorado, which have adopted versions of the Pruneyard rationale, the
majority of state court decisions since Pruneyard have protected the rights of
private property owners to enact regulations governing political protests,
demonstrations and similar activities at their shopping centers and have held that
individuals and groups do not have the unfettered right to enter private property for
the purpose of picketing, demonstrating or conducting similar types of activities.
[Emphasis Added]. See Plaintiff’s Supplemental Pruneyard Briefing vis a vis
Freedom Watch/Laura Loomer v. Google et. Al. U.S. Ct. App D.C. 19-730 (August
20, 2019) (Dkt. 43)

In the case at bar this leaves us with a horse of another color because unlike

private shopping malls with an incidental Free Speech component, we have

privately-owned speech platforms that are specifically designed to host speech,

allegedly on a neutral basis and free from Retaliatory viewpoint or content-based

discrimination. As such, the California case of Ralphs Grocery Co. v. United Food

and Commerical Workers Union Local 8, No. S185544 (Dec. 27, 2012) is

inapposite because, again, Facebook was designed to facilitate public speech. As

such, there is no argument of an unauthorized taking to be made because they are

already in the business of speech, ab initio.

But neutrality is clearly not what is happening, at least in this case and while

this case naturally has larger implications, this is not a Class Action case and the

Court has only to rule on the facts of this particular case as presented, using

relevant older and developing Law.

20
As such, it is clear that the time has come for Pruneyard to again make its

presence known such that Plaintiff be ORDERED to file a final Amended

Complaint that will indeed include a valid Justiciable First Amendment Claim for a

Trier of Fact to hear and pass Judgment on. Accord Fashion Valley Mall, LLC v.

National Labor Relations Bd., 451 F.3d 241 (D.C. Cir. 2006) prohibiting speech

that advocates a boycott is not a time, place, or manner restriction because it is not

content neutral. The Malls rule prohibiting persons from urging a boycott is

improper because it does not regulate the time, place, or manner of speech, but

rather bans speech urging a boycott because of its content. Restrictions upon

speech “ ‘that by their terms distinguish favored speech from disfavored speech on

the basis of the ideas or views expressed are content based.’ ” (DVD Copy Control

Assn., Inc. v. Bunner, 31 Cal.4th 864, 877, 4 Cal.Rptr.3d 69, 75 P.3d 1.) (2003).

The Mall argues that its rule prohibiting speech that urges a boycott is “a

‘content- neutral’ restriction under California law because it applies to any and all

requests for a consumer boycott of the Mall's merchants . regardless of the subject

matter or viewpoint of the speaker advocating the boycott.” The Mall is mistaken.

The Mall's rule prohibiting all boycotts may be viewpoint neutral, because it treats

all requests for a boycott the same way, but it is not content neutral, because it

prohibits speech that urges a boycott while permitting speech that does not..

In sum, you can’t pick and chose.

21
The Lower Court failed to recognize Judge Koh’s Order in Fed. Agency of

News LLC v. Facebook, Inc does not cite to Pruneyard or California Law, but
5
rather to Lloyd and Landgon v. Google, 474 F.Supp.2d 622 (2007). Langdon is a

case that in Internet terms is ancient history. In 2007 Facebook was barely a

household name. The intervening twelve years have completely changed the

character of breath of Facebook and the Court’s rationale – also reiterated in

Prager Univ. v. Google LLC 2018 WL 1471939 (2019) (another Judge Koh

Decision) is just flat out wrong on a Pruneyard analysis because Facebook is

totally a public forum. It is the core function of the thing in itself. It is used by

politicians World Wide. It is used by Billions of people who exchange political and

social thoughts, dreams, and desires on the world’s largest social media platform

and as such, Plaintiff challenges this Court to recognize the obvious error of Judge

Koh’s reasoning.

3 This is significant because an individual State, may, under its own auspices, afford greater
Constitutional protections than granted in the Federal Scheme, but it may not afford less. California
affords more. Regardless, Judge Koh’s rationale is also wrong for other reasons explained herein.

22
Her Honor also cited to Lloyd Corp., Ltd. v. Tanner, 407 U.S. 551 (1972)

but Lloyd is inapposite here because the holding in Lloyd was that there has been

no dedication of petitioner's privately owned and operated shopping center to

public use so as to entitle respondents to exercise First Amendment rights therein

that are unrelated to the center's operations. In Packingham v. North Carolina, 137

S. Ct. 1730 (2017) the Court held:

“A fundamental principle of the First Amendment is that all persons have


access to places where they can speak and listen, and then, after reflection,
speak and listen once more. The Court has sought to protect the right to
speak in this spatial context.” Id. at 1735. “While in the past there may have
been difficulty in identifying the most important places (in a spatial sense)
for the exchange of views, today the answer is clear. It is cyberspace—the
“vast democratic forums of the Internet” in general, and social media in
particular.” Id. (emphasis added) (internal citation omitted). “In short,
social media users employ these websites to engage in a wide array of
protected First Amendment activity on topics ‘as diverse as human
thought.’” Id. at 1735-36 (citing Reno v. American Civil Liberties Union,
521 U. S. 844 (1997)). Accordingly, the Supreme Court found that access to
these social media sites could form the basis for a constitutional First
Amendment issue, and after applying intermediate scrutiny, found that the
statute was unconstitutional. Id. at 1736.

Counsel in Freedom Watch/Laura Loomer v. Google et. Al. U.S. Ct. App D.C. 19-
730 analyzed the case in a present day reality:

Although Packingham did involve a challenge to a state law, it also does


stand for the proposition that denial to access to social media platforms can
for the basis for constitutional violations. This is indicative of the fact that is
clear that the Internet has overtaken physical public spaces in the traditional
sense as the chosen forum for public debate and discourse, which is what the
First Amendment specifically seeks to protect. The law surrounding social
media and the internet is constantly changing to adapt to what new
possibilities technological advances can bring.

23
It is clear that Facebook does not like blacks. Nor does Facebook
particularly care for certain Republicans or Conservatives, or anyone who opposes
Facebook. In addition to the previously-cited complaint and Party Admission of
Facebook’s Vice President of Diversity Mark Luckie and the Loomer litigation see
also the U.S.A. Today Feature on which he requested Judicial Notice on prior
occasion in the Lower Court:
https://www.usatoday.com/story/news/2019/04/24/facebook-while-black-zucked-users-say-they-
get-blocked-racism-
discussion/2859593002/?fbclid=IwAR1v3n_Duzo3ynbDepsmjtdfYDJyrkgmpIT8LpDXiW2M7v
LzJ_V22NsxjoQ

FACEBOOK WHILE BLACK: USERS CALL IT GETTING 'ZUCKED,'


SAY TALKING ABOUT RACISM IS CENSORED AS HATE SPEECH
Jessica Guynn, USA Today, April 24, 2019

This is a huge problem in our society for a purportedly private enterprise to wield

this sort of power and control as noted by Will Chamberlain, Esq. in:

Platform Access is a Civil Right.


A reflection on Lyndon Baines Johnson and the 1964 Civil Rights Act.
By Will Chamberlain
On May 3, 2019

“We, as a society, do not have to allow private companies to violate


Americans’ civil rights.”
https://humanevents.com/2019/05/03/platform-access-is-a-civil-right/

“It’s tough enough to get all the way from Washington to Texas. We drive
for hours and hours. We get hungry. But there’s no place on the road we can
stop and go in and eat. We drive some more. It gets pretty hot. We want to
wash up. But the only bathroom we’re allowed in is usually miles off the
main highway. We keep goin’ ‘til night comes – ‘til we get so tired we can’t
stay awake anymore. We’re ready to pull in. But it takes another hour or so
to find a place to sleep.

“You see, what I’m saying is that a colored man’s got enough trouble getting
across the South on his own, without having a dog along.”

24
In Johnson’s telling, hearing this story was jarring enough to permanently
convince him of the necessity of protecting his employees – and every other
African-American – from discrimination.

And it should change the view of any holdout radical libertarian who still
thinks that the Civil Rights Act of 1964 was unjust.

Because you know what? Private property rights are great. But that does not
mean that we, as a society, had to let private restaurant owners and private
hotel managers turn away customers because they were black. We didn’t
have to accept a world in which black people had to defecate on the side of
the road because they weren’t allowed to use a privately-owned restroom.

We, as a society, do not have to allow private companies to violate


Americans’ civil rights. (Appendix to Plaintiff’s Motion for Rule 59 Relief,
at Dkt 57).6

This is precisely what Plaintiff was saying thorough analysis of the old Pruneyard Law as

well as burgeoning Federal law and developments supported by the District of Columbia as

highly-esteemed Counsel from the Lawyer’s Committee for Civil Rights under Law and the

Washington Lawyers’ Committee for Civil Rights and Urban Affairs noted below in the United

States District Court of Appeals (DC Cir. ) Freedom Watch/Laura Loomer v. Google, Facebook

et al., No. 19-7030. (Appendix B). Recall this case is being heard because the Appellate Court

soundly rejected summary affirmance of denial of Plaintiff’s Sherman Act, First Amendment and

Public Accommodation Complaints and ORDERED briefing on same, more on this later.

6
Frankly, Appellant is not a huge fan of some of the Right Wing Politics. But unlike some of
them, Appellant will defend their right to deliver their message with his last breath because that
is the Essence of our purported Democracy – the very Democracy that is at risk because of
Facebook according to Facebook founder Chris Hughes.
25
CONCLUSION

David Lukmire is correct. The Legal authorities in the District of


Columbia are correct. And Plaintiff is correct. The Internet is a place of
public accommodation and when a purportedly private entity dedicates its
entire mission to being the largest “Platform of Ideas” in the entire World
the First Amendment and Unconscionability concerns arise.
We have abdicated our First Amendment Rights, Privileges and
Immunities to a Feudal Hegemonic warlord that should itself be bound in
shackles and taken to the hoosgow.... broken up as co-founder Chris Hughes
has publicly stated.
Truly the Emperor has no First Amendment clothes in California in
general and under Pruneyard specifically. Moreover its abusive and
unconscionable conduct squarely besmirches our social and legal landscape.
As such, it is now incumbent of this Honorable Court to effect a meaningful
Citizens’ Arrest as forty-seven (47) United States Attorneys General
investigate the Emperor for Antitrust violations in violation of the Common
Good.
Respectfully submitted,
May 20, 2020
________________________
Christopher King, J.D.
A/K/A KingCast
c/o Stafne Law and Advocacy
239 N. Olympic Avenue
Arlington, WA 98223
617.543.8085

APPELLANT PRO SE

26
STATEMENT OF RELATED CASES

This case is not strictly a related case within the meaning of the Rule

however the thematic concerns noted in the Brief relative to Freedom Watch/Laura

Loomer v. Google et. Al. U.S. Ct. App D.C. 19-730 (August 20, 2019) are clearly

germane for reasons stated above: District of Columbia State Counsel are arguing

that the Internet is not immune from State Action as a place of public

accommodation.

May 20, 2020

_________________________
Christopher King, J.D.
A/K/A KingCast
c/o Stafne Law and Advocacy
239 N. Olympic Avenue
Arlington, WA 98223

617.543.8085

APPELLANT PRO SE

27
CERTIFICATE OF COMPLIANCE

Pursuant to Fed. R. App. P. 32(a)(7)(C), I certify that:

This brief complies with the type-volume limitation of Fed. R. App. P.

32(a)(7)(B) because this brief contains 5,796 words, excluding the parts of the

brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

This brief complies with the typeface requirements of Fed. R. App. P.

32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this

brief has been prepared in a proportionately spaced typeface using Microsoft Word

in Cambria 14-point font.

May 20, 2020

_________________________
Christopher King, J.D.
A/K/A KingCast
c/o Stafne Law and Advocacy
239 N. Olympic Avenue
Arlington, WA 98223

617.543.8085

APPELLANT PRO SE

28
CERTIFICATE OF SERVICE

I swear that I electronically filed the foregoing Opening Brief with the Clerk

of the Court for the United States Court of Appeals for the Ninth Circuit by using

the appellate CM/ECF system pursuant to Rule on 20 May, 2020.

_________________________
Christopher King, J.D.
A/K/A KingCast
c/o Stafne Law and Advocacy
239 N. Olympic Avenue
Arlington, WA 98223

617.543.8085

APPELLANT PRO SE

29