Free Speech

No, Google Didn't Violate Tulsi Gabbard's First Amendment Rights, Federal Judge Rules

"Google is not now, nor (to the Court's knowledge) has it ever been, an arm of the United States government," wrote District Judge Stephen Wilson.

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A lawsuit from Rep. Tulsi Gabbard (D–Hawaii) that sought to radically alter the First Amendment and its application to private companies was rejected by a federal judge on Tuesday.

The congresswoman and presidential candidate sued Google for infringing on her right to free speech when the company temporarily suspended her campaign advertising site for six hours after the first Democratic debate.

"Google is not now, nor (to the Court's knowledge) has it ever been, an arm of the United States government," wrote District Judge Stephen Wilson of the United States District Court for the Central District of California, noting that the First Amendment prohibits government censorship, but does not apply to the decisions made by private businesses.

Gabbard contended that Google became a public utility by permitting candidates to advertise on its platform. But that isn't enough to render it a state actor, said Wilson, as "web services or online political advertising" have never been "exclusive government functions."

The suit is the latest in a string of tech bias claims, and the decision once again affirms the obvious: The First Amendment does not govern the choices made by private actors. Wilson didn't have to look far in citing recent precedent: The judge pulled from last week's decision in Prager University v Google LLC et al, in which the Ninth Circuit Court of Appeals rejected the conservative content maker's allegations that YouTube, a Google subsidiary, violated its free speech rights by placing a small portion of the nonprofit's videos on "Restricted Mode."

"PragerU runs headfirst into two insurmountable barriers—the First Amendment and Supreme Court precedent," wrote Circuit Judge M. Margaret McKeown.

Gabbard and PragerU may very well have cause to be miffed at the companies for their review processes. In Gabbard's case, Google said that its automated system flags accounts with large changes in spending, and in this case, it allegedly triggered a suspension.

As I've written previously, the tech behemoths are unconvincing when they say their content assessments are devoid of bias. No algorithm has been optimized beyond error, and no human reviewer is completely impartial. But those are not First Amendment issues.

These lawsuits seemingly fail to consider what would happen should the plaintiffs defy the impossible and prevail in court. For one, tech companies would lose their right to moderate any content, which both Republicans and Democrats may take issue with in the event that porn begins appearing on platforms that currently police such content. It's also possible that companies would cease to claim political neutrality and start scrubbing more content in an effort to avoid like-minded lawsuits.

Gabbard's suit was probably nothing more than a PR stunt, but such efforts waste time and resources. What's more, it suggests she either doesn't understand or respect the Constitution, which doesn't bode well for a potential President Gabbard.

NEXT: Divided Fifth-Circuit Panel Submits Untimely Amicus Brief in Seila Law v. CFPB

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  1. These lawsuits seemingly fail to consider what would happen should the plaintiffs defy the impossible and prevail in court. For one, tech companies would lose their right to moderate any content, which both Republicans and Democrats may take issue with in the event explicit material begins appearing on platforms that currently police such content. It’s also possible that companies would cease to claim political neutrality and start scrubbing more content in an effort to avoid like-minded lawsuits.

    Since when is more content a bad thing? And why would tech companies or any company being more honest with the public and their customers a bad thing?

    It is clear what Google is doing here and it is having a very bad effect on public discourse. If the first Amendment isn’t the answer, then a change in law giving people statutory damages and attorney’s fees for these sorts of screwups likely is.

    It would be nice if reason thought a little deeper about the issue than “whatever the tech companies do is wonderful” and “start your own google”.

    1. If the plaintiffs win, the world could be covered in an unending blanket of fire. Or, potentially, 40 days and nights of rain will cleanse the Earth in a flood. Now, of course, some rain with some fire would pretty much be the status quo but, rest assured that, either way, if the plaintiffs win, the world will end.

      Reason at large, recently, has started to shy away from this obvious hyperbolic idiocy wrt section 230. At first, when I read Binion’s piece I thought he was being an obtuse leftist. Then it occurred to me that maybe he’s Reason’s retarded correspondent for the mentally handicapped audience and he can’t come up with a better narrative unless someone sits him down, explains the nuance and subtleties, and shows him how to write a new one.

    2. Thinking deeper, like what the political ramifications would be when porn shows up all over every channel because companies are scared to moderate anything without a court order?

      Isn’t that what Section 230 does — allow companies to moderate without having to face bipartisan calls for government meddling?

      1. It would hurt advertising and they could be forced to lose their under 18 market in some way. It would hurt the brands so much they’d stop user generated content. When a pissing video becomes trending you can’t sell your product easily. People WILL make it trend.

        230 does do that, but in its absence will be something else to rectify the issue of removing content. LIke, every user has to be identified so they can be served or the platform is liable, but they can still moderate if they do that.

    3. Is this a meeting of Libertarians For Government Control Of Private Conduct Involving Speech, a bunch of right-wing malcontents muttering about lawns while awaiting replacement by their betters, or both?

      1. Should we all start flagging every comment you post?

        1. Where “we all” = “the half-educated, bigoted clingers.”

          Do as you wish, clinger. It’s a (mostly) free country.

          1. So fucking boring.

            1. Right? Get a new schtick, Rev.

            2. Exactly, when someone needs more publicity they pull out Google wildcard

      2. Rev., I have to admit you are correct here.

    4. then a change in law giving people statutory damages and attorney’s fees for these sorts of screwups likely is.

      You want *another* ‘lawyer bounty hunting’ law? Prop 86? The ADA, stuff like that isn’t enough to show you how bad those sorts of laws are?

      What happened to the libertarians and freedom-minded conservatives that used to post here?

    5. “tech companies would lose their right to moderate any content, which both Republicans and Democrats may take issue with in the event explicit material begins appearing”

      Reason’s concern trolling is touching but misplaced.

      The law makes exceptions for “explicit material” in many ways. Indeed, it places filtering *requirements* on explicit material. Meanwhile, CDA 230, correctly interpreted, allows filtering of explicit material and other nuisance communications.

      The problem is that CDA 230 was interpreted as a blank check for service providers to ban WrongThink instead of just filter nuisance tweets.

      “It’s also possible that companies would cease to claim political neutrality”

      Then government officials will be banned from using them as public forums, as they *should be already* for all the services which filter 1st Amendment protected speech.

      Then Gab will rule and Americans will Speak Freely! Yay!

      1. I do not think it will be a good idea for tech company to loose such a right of to moderate contents. What if these contents are not suitable to be consume by the public? or comply with the privacy policy?

        We should remember that Google is a private organization that has her own terms and conditions; even when advertising, you should follow the rule of the company.

        I support politicians promoting themselves through digital mean, but it should be done appropriately in line with where they are advertising.

        Surely, I support your statement that “Then Gab will rule and Americans will Speak Freely!”

        https://yokebay.com/.

    6. It’s not google’s fault. They’re trying to run a business. They’re doing well too. Relying on a PRIVATE business for PUBLIC discourse is the issue.

      Now the pro 230 argument has shifted to “they won’t moderate at all”, but that’s short-sighted because that’s assuming they’ll make the same mistake again. It’s going to get replaced. What you’ll see is the FOSTA scenario where the text box vanishes.

      Ban encryption? Why would they ban encryption on a banking site? On Ticketmaster? it’s panic journalism. Any bill will have exceptions should they even touch encryption. Read the Shop Safe act introduced this week. It doesn’t stop sales. It doesn’t hurt the internet.

      Reason needs 230 because without it people will only come here if they type in the address like I do. I’m not Legion for I am few.

    7. You want statutory damages from companies for not being the government. That’s fucked up.

      No one said that whatever tech companies do is “wonderful.” They’re saying these particular actions of tech companies are blatantly constitutional. They’re saying that as private companies tech firms can give a platform to any damned ideas they want, and refuse to give a platform to those they oppose. Any other arrangement—the government imposing its interpretation of neutrality on them—is an *actual* First Amendment violation.

  2. It’s unfortunate that people keep suing the tech companies on 1st amendment grounds. Terms of service, people… terms of service…

    1. I remain unconvinced.

      Not that TOS is the right grounds to sue on but that it’s an even remotely more winning strategy. Between courts not giving two shits about why right-thinking tech giants cut your Nazi propaganda off even if they were paid by the government to do so and deferral to experts about the predictability of algorithms and the translation of said actions into contract law, much like ‘bake the cake’ the 1A isn’t *the* reason these people are suing, it’s the *most defensible* reason. It’s right there in section 230, these companies are just engaging in good faith moderation. How are the courts to know better/different?

      1. even if they were paid by the government to do so

        Is there any evidence this is the case? Because if so, that seems like it would be a slam dunk of a 1A case. If there were any evidence of that being case.

        1. Not what I was saying. I’m saying that even if you had a state run human rights commission overtly violating people’s right to free association there’s a high probability you could find a court that would allow it. Some may even fabricate some legal precedence to do so. Moreover, even if you originally did pursue such a case on purely technical/contractual and agnostic grounds, it would be reframed as a 1A fight.

      2. “It’s right there in section 230, these companies are just engaging in good faith moderation.”

        Section 230 allows more than good faith moderation. It allows companies to moderate however they want. They can moderate their forums so that conservatives are banned, or they can moderate them so that no clowns are allowed. It is completely up to those companies.

        If every conservative out there stopped trying to figure out how to force google to “play fair” via government and instead punished them with a boycott, the company would certainly do more to reign in their liberal tendencies.

        1. “Section 230 allows more than good faith moderation.”

          That’s how it’s been applied. That’s not actually the law.

          CDA 230 allows good faith filtering of types of nuisance speech under safe harbor provisions, not a blank check to ban WrongThink.

        2. Section 230 allows more than good faith moderation. It allows companies to moderate however they want.

          First, just as with any other right or law abrogating free speech, the right exists outside the government. Moderation happened before section 230 and it would happen after section 230. The idea that the law is the be-all, end-all of existence lends undue credence to the government.

          Second, the question(s), just as Reason or libertarians would ask in any other situation, is “What constitutes good faith and who decides?” Normally, such an issue is decided by private contract and the courts on a case-by-case basis in the case of a dispute. But, for some not very mysterious reason, Congress saw fit to write it into law a priori.

          1. The idea that the law is the be-all, end-all of existence lends undue credence to the government.
            The problem is that the government entity, that one must go to for relief, the courts, do treat 230 as the be-all, end-all and almost universally toss out any suit they can place under its protection.

      3. It’s right there in section 230, these companies are just engaging in good faith moderation. How are the courts to know better/different?
        A deaf, dumb and blind man can tell that when “moderating” is done to one political ideology and not to the other, it is not being done in good faith.

    2. Yes. Sue them for violating the TOS.

      1. Again, the TOS that can change at any minute and be unintentionally subverted by any given implementation of any given ‘impartial’ algorithm?

        I’m still dubious.

  3. >>Google is not now, nor (to the Court’s knowledge) has it ever been, an arm of the United States government

    if Google was a religion (ha if) it would fail excessive entanglement.

    1. If I ran a business in CA and threw someone out for wearing Apple apparel or using Google products and they sued, what would you put the odds of my victory at? What do you think the odds are that I could be found to be violating their right to free association?

    2. Well Duh! Google is an arm of the Chinese government.

    3. There are legitimate legal situations in which a private company can be sued under the first amendment. However, these are situations in which the company is ACTING as the government. The simplest example is a company mining town. The company owns the town and all the land for 50 miles. For all intents and purposes, it is the government. Therefore, you have to have free speech on company land as it pertains to the town.

      The internet is not this situation.

      1. The internet is not this situation.

        I, not entirely, disagree. You’re interpretting your analogy in the historical context or with too narrow a definition. You said ’50 miles’ but you didn’t mean 50.000 miles. You meant “Some unreasonable distance to travel and conduct business.” or similar. Moreover, in the intervening decades, that distance has expanded from both sides making the actual distance more irrelevant. Lastly, you don’t mean that the company actually *owns* the town hall as much as you mean every official in town hall is either bought and paid or is a lock step true believer. I agree you would die in a mining town without water in a way completely different than living without the internet. However, I don’t believe the internet issue or the 1A to be about a physical death but a ideological/cultural/socio-political death. You don’t have to physically kill every last ideologue to effectively quell dissent (and it’s actually counterproductive) and 2nd (and 3rd) parties can’t readily survive in an ideologically-pure intellectual landscape.

        See 1984 or Soviet Russia, you don’t have to kill people if you can just disappear them. Moreover, if you can just make their ideology disappear, so much the better (pragmatically, worse morally).

  4. “Google is not now, nor (to the Court’s knowledge) has it ever been, an arm of the United States government,” wrote District Judge Stephen Wilson of the United States District Court for the Central District of California

    Odd that he would state for a fact that Google is *not now* an arm of the government but limit himself to merely speculating as to whether or not it has been one in the past. Does the judge know something about Google and its relationship to the US government that we don’t know?

    As in, at some point when your agreement to cooperate with and extend aid to the government crosses a certain threshold, aren’t you considered to be acting as an agent of the state? I mean, if you’re supplying surveillance cameras and recording devices to the government that doesn’t make you a state actor, but if you agree to supply the monitoring of the cameras and microphones, doesn’t that make you a government contractor?

    If the cops can’t legally search your house without a warrant, they can’t go hire the local B+E guy to do it for them and expect to get away with it. If Google wants to report suspicious behavior to the authorities they can, but if the NSA (or the Chinese government equivalent or whoever else) is directing them on who they want looked at and where exactly to look and what exactly to look for and what tools to use for the looking, I’d have to say that at some point Google had better push back or go ahead and admit they’re evil.

    1. Does the judge know something about Google and its relationship to the US government that we don’t know?

      No?

      I mean, that’s what ‘not now and not to our knowledge in the past’ means. It means that they are not aware of any previous time where Google was a part of the government.

  5. I always thought this case should have been for breach of contract. How can you cancel my advertising at the moment that I’m literally the most popular I’ve ever been? Using the 1A was a terrible idea.

  6. OT- where’s Preet when you need him?

    “I want to tell you, Gorsuch. I want to tell you, Kavanaugh. You have released the whirlwind and you will pay the price!” Schumer warned. “You won’t know what hit you if you go forward with these awful decisions.”

    https://www.msn.com/en-us/news/politics/schumer-unloads-on-gorsuch-kavanaugh-at-abortion-rights-rally-you-will-pay-the-price/ar-BB10KFIu

    1. “Let me tell you: You take on the intelligence community — they have six ways from Sunday at getting back at you.” Also Chuck Schumer, threatening Donald Trump with bad things happening. Is Chuck Schumer just straight up mafioso or did he learn this shit from hanging around Harry Reid and his business associates?

    2. Really wished that Roberts had just gone out front and bitch-slapped Schumer. That little pussy would have run home crying.

      -jcr

  7. Elizabeth Warren proved her Native American chops by losing her home state like a good little Indian.

    1. Too soon

    2. She traded it for the 24 dollars worth of beads. (Adjusted for Inflation)

    3. Best commentary of the day!

  8. “For one, tech companies would lose their right to moderate any content, which both Republicans and Democrats may take issue with in the event that porn begins appearing on platforms that currently police such content.”

    They’re working on a bipartisan fix for this. 230 is probably getting yanked, something goes up in its place to solve the moderator’s dilemma, the companies will have contributory liability for user-generated content, rules made to identify users, and that entire business model folds.

    This was bound to happen, but by allowing livestreamed shootings and the like and then removing political content they shot themselves in the foot because politicians saw this happening to others and put themselves in those shoes.

  9. it suggests she either doesn’t understand or respect the Constitution, which doesn’t bode well for a potential President Gabbard.

    I don’t know. Something like 44 Presidents have either not understood or not respected the Constitution. Seems to be a perquisite for getting into office, really.

  10. Washington? Jefferson (who wrote most of the damn thing himself)?
    Ima go with 43, not 44.

    1. Yeah, I’d say the first handful fully understood it. Several probably didn’t agree with the whole thing, but they definitely understood it, having been involved in drafting and ratifying the thing.

      No chance our current President understands the thing. But he has somehow managed to do a better job of adhering to it than his constitutional professor predecessor – quibbles about language used in executive orders notwithstanding. Nobody has had to invent a penaltax in the last 3 years to explain away a blatantly unconstitutional mandate. In fact, they’ve spent quite a bit of time inventing reasons that he can’t undo constitutionally suspect executive orders by executive order, in a strange reversal of normal jurisprudence.

    2. The Constitution? Madison wrote that. Jefferson was safely out of the way in Paris for that centralizing power grab, and immediately complained there was no Bill of Rights at first.

  11. It’s “interference in elections” when Russians tweet.

    When foreign nationals working for BigTech control what Americans are allowed to see and say on social media, it’s “free markets”.

    1. When foreign nationals working for BigTech control what Americans are allowed to see and say on social media, it’s “free markets”.

      Similarly, when our duly elected American President enacts (misguided) tariffs to combat oppose communist dictatorships, we’re on the slippery slope towards communism. When foreign nationals working big tech suppress speech that makes their product less popular or competitive in international or more socialist markets, it’s “free markets”.

  12. They definitely brought the wrong complaint. I’m not sure they had the right complaint available though.

    But there definitely is an issue here. If Google decides to “unperson” some political candidate that they find objectionable, how much does that impact their ability to be heard? They are pretty close to monopolizing the search space. And if you add in the other partners in the tech political alliance, you have a pretty significant chunk of the communications landscape.

    So let’s say they all decide to help get Bernie elected. They promote Bernie stuff and hide stuff from the opposing viewpoint.

    As the courts and everyone here has pointed out, that’s their prerogative as a private company. But doesn’t that run afoul of campaign finance laws? Isn’t that a contribution?

    Now take another look at Gabbard’s issue. Google turned her off right at the key moments when people were searching for her after her debate performance. This undoubtedly conveyed an advantage to her opponents. It isn’t quite “we are pushing Bernie”, but it isn’t devoid of election consequences either. It probably doesn’t become a campaign contribution, but the level of interference offered by Facebook might well be over that line.

    1. Remember, paying off an old mistress counts as a campaign finance violation.

    2. “They are pretty close to monopolizing the search space.”

      Haven’t used a google product in years. Duckduckgo, Bing, and even Yandex do the same as google. Google was better at branding. That’s all.

      1. Haven’t used a google product in years.

        That’s almost certainly not true. Search product maybe. No Google product whatsoever is likely not.

        1. Correct. I’ve watched a youtube vid here and there, but other than that what would it be? I don’t have an apple or android phone. My phone can’t run apps. No chrome, gmail, etc. I’ve had a harder time avoiding Disney, TBH.

          1. No chrome, gmail, etc.

            If you’ve sent an email to a gmail account, you’ve used a google product.

            If you’ve sent an email to a business hosted by G-suite (which would be largely opaque to you), you’ve used a google product.

            If you’ve sent an email to someone that passed over Google fiber or through one of Google’s backbone nodes, you’ve used a Google product.

            1. That’s not to say that Google definitively or actively filters, suppresses, or re/deprioritizes on those services but both that it can and it can use that capability as leverage.

  13. Oh the hypocrisy…Google can censor anything they want because…wait for it..they are not the govt and have the right to discriminate. Now let’s go to the logical end on the..Title 2 and 8 of the Civil Rights Act allow govt to force discrimination (forcing people to trade in goods and service they don’t want to and forcing organizations to hire based on govt edict). Sorry but if google is allowed to discriminate on how they provide services (blocking Tulsi) then the entire edifice of that part of the Civil Rights Act comes falling down…

    My view is Google is a monopoly with govt privilege to ensure no market entrants…Google had “inside” financing through hedge funds and the Fed so they could get capital at much lower rates than anyone trying to enter the market..AGain if you know the “right” people you get the money form the central bank…

    Its really time Google was broken up..take YouTube away immediately and force the channel to not moderate anything as long as it is legal.

    1. Then duckduckgo or Yandex takes over and Yandex is Russian so they’ll do whatever the fuck they want as well. Russia could then influence everything we do unless we close off the internet.

      If you break up Toyota then Honda will take over. That may even be the case, but you get my point.

  14. Not a First Amendment case. More like fraud, taking her advertising dollars under false pretenses.

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  16. “Google is not now, nor (to the Court’s knowledge) has it ever been, an arm of the United States government …”

    If it was, it would have immunity and Tulsi would still be out of luck.

    1. ??? That’s not the way it works for constitutional violations…

    2. Doesn’t 230 essentially give Goggle immunity?
      By not delving into the meaning of “good faith”, the courts use 230 like they use “lack of standing” – to avoid making tough decisions.

  17. “Google is not now, nor (to the Court’s knowledge) has it ever been, an arm of the United States government,”

    ORLY?

  18. If a company is moving in lockstep with the wishes and desires of the deep state, then they are de facto part of the govt. Applying the principles of a free peoples, it is time to move to a company that pledges not to discriminate against people of any persuasion. That is what competition is all about. If you don’t like the product that a company offers, then find a better company or build a competing model.

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