Tulsi Gabbard Loses "Free Speech" Lawsuit Against Google

|The Volokh Conspiracy |

From Judge Stephen V. Wilson's opinion in Tulsi Now, Inc. v. Google, LLC, which strikes me as quite correct:

Plaintiff's essential allegation is that Google violated Plaintiff's First Amendment rights by temporarily suspending its verified political advertising account for several hours shortly after a Democratic primary debate. Plaintiff's claim, however, "runs headfirst into two insurmountable barriers—the First Amendment and Supreme Court precedent." Prager Univ. v. Google LLC, No. 18- 15712, 2020 WL 913661, at *1 (9th Cir. Feb. 26, 2020).

The First Amendment provides: "Congress shall make no law … abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble …." "The First Amendment, applied to states through the Fourteenth Amendment, prohibits laws abridging the freedom of speech." In effect, "the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content."

Google is not now, nor (to the Court's knowledge) has it ever been, an arm of the United States government. "The text and original meaning of those Amendments, as well as this Court's longstanding precedents, establish that the Free Speech Clause prohibits only governmental abridgment of speech. The Free Speech Clause does not prohibit private abridgment of speech." Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921, 1926 (2019) (emphasis in original).

Plaintiff alleges Google has become a state actor by virtue of providing advertising services surrounding the 2020 presidential election.

"Under [the Supreme] Court's cases, a private entity can qualify as a state actor in a few limited circumstances—including, for example, (i) when the private entity performs a traditional, exclusive public function; (ii) when the government compels the private entity to take a particular action; or (iii) when the government acts jointly with the private entity." Plaintiff's argument is that, by regulating political advertising on its own platform, Google exercised the traditional government function of regulating elections. "To draw the line between governmental and private, this Court applies what is known as the state-action doctrine. Under that doctrine, as relevant here, a private entity may be considered a state actor when it exercises a function 'traditionally exclusively reserved to the State.'"

Traditional government functions are defined narrowly. "It is not enough that the federal, state, or local government exercised the function in the past, or still does. And it is not enough that the function serves the public good or the public interest in some way. Rather, to qualify as a traditional, exclusive public function within the meaning of our state-action precedents, the government must have traditionally and exclusively performed the function." "Under the Court's cases, those functions include, for example, running elections and operating a company town." There is no argument that webservices or online political advertising are traditionally exclusive government functions. Plaintiff argues that, by providing some restriction on political advertising on its platform, Google is in effect regulating elections.

Disclosure: I have represented Google as a lawyer, including in writing a white paper arguing that the First Amendment protects search engine results, though that is a different question than the one I'm discussing here; I have not been asked to blog about this, and I am speaking entirely for myself here.

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  1. If Google had never received a dime of local, county, state, or federal payola, and if Google had never assisted any state actor in the collection, maintenance, and sharing of data obtained pursuant to use of Google, and if there was no immunity from civil liability conferred upon Google for intentionally or negligently publishing defamatory material, or republishing the same, or for de-platforming the speech of others, then, I might be inclined to side with the Googlemeister.

    1. That’s not how the Constitution or laws work.

      Or should work.

    2. Love how some libertarians are totally cool with muzzling anyone they don’t like.

      We’re well past “Repubican who likes to smoke pot”; this is wannabe-petty tyrant who can’t be arsed to even pretend.

      1. Libertymike is a libertarian? Where comes that strawman from?

      2. Its Google and the state that is doing the muzzling.

        Perhaps you do not understand that. Or, perhaps, you are being deliberately obtuse.

        1. Perhaps you could educate us numbskulls.

    3. You didn’t build that definition of fascism.

  2. Generally the problem here isn’t so much constitutional as breach of contract. Her contract with Google didn’t have an explicit, “We won’t deliberately cut off your service for phony reasons at the most damaging possible time.” clause, but that’s the sort of thing that really ought to go without saying.

    It’s like, if your alarm monitoring company knew that a burglar was going to hit your house tonight during a six hour window, and deliberately shut your alarm system off for that period, you’d have a case against them.

    1. Then she sued for the wrong thing. She ought to sue her lawyer next, for not wising her up.

    2. Her campaign must have some pretty shitty lawyers if the problem was a breach of contract and they decided to go with a stand-alone First Amendment claim.

    3. Do we know if the contract had a blanket statement like, “We reserve the right to suspend the account for any reason, at any time, for any duration?”

      Seems like Google would be smart enough to include something like that.

      1. Or, “We reserve the right to delete any comment for any reason at any time.”

        Now where I have seen this. . . .

      2. I have a strong intuition that it incorporates Googles Terms of Service, which do include something similar.

  3. “Plaintiff alleges Google has become a state actor by virtue of providing advertising services surrounding the 2020 presidential election”

    Yeah, not how that works.

    Now, if they promised to show ads regularly, she might have them for breach of contract, for actual damages.

    But not so much.

    1. Yep, it would have been a breach of contract, if only she had put the correct terms in her contract. I doubt she did.

    2. It may be confusing the laws regarding public airwave media with the internet.

  4. There’s a ridiculous but nontrivial argument for internet search as a traditional government function. ARPANET runs from 1966; NASA develops TCP/IP in the 80s; DoD registers all top-level internet domain names to 1993; the machine still runs on large government backbones; although search was always a private and academic project, search essentially reproduces the function of a directory, which, in the 25 years before the invention of the search engine was a collaboration of DARPA, NCSA, and CERN.

    The (entirely ridiculous) theory is that the traditional governmental function of listing relevant files on distributed network set up by the government for its citizens has now been templated to a dynamic function run by a diverse and competitive array of companies.

    In fairness, you would have to have spent many hours in a VAX lab or on Usenet as an undergrad to get the sense of the Internet as something other than an infinite number of lists that appear as if by magic.

  5. What are the professional ethical standards for a lawyer to pursue a case like this which, as presented, is clearly unwinnable and any competent lawyer would know this?

    Even if the lawyer takes it on contingency with every expectation that they will lose money as a result (perhaps because of the lawyer’s personal interest in promoting Gabbard), it’s wasting the court’s resources even if Gabbard was told, and knew, it wasn’t winnable so she suffers no disappointment or trauma from the inevitable outcome.

    1. Ken White often makes the point that some legal actions are taken for the purpose of winning a case, and some are for other extra-legal purposes, e.g. publicity, harassment, intimidation, etc.

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