The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In Freedom Watch, Inc. v. Google Inc., decided today by D.C. Circuit Judges Judith Rogers, Thomas Griffith, and Raymond Randolph, Freedom Watch and Loomer sued "Google, Facebook, Twitter, and Apple … alleging that they conspired to suppress conservative political views." No, said the court (correctly, in my view):
[A.] The plaintiffs' First Amendment claim failed because "the First Amendment 'prohibits only governmental abridgment of speech.'" (Recall that the First Amendment says "Congress shall …" and the Fourteenth Amendment says "No state shall ….")
Freedom Watch contends that, because the Platforms provide an important forum for speech, they are engaged in state action. But, under [the Supreme Court's 2019 decision in Manhattan Community Access Corp. v. Halleck], "a private entity who provides a forum for speech is not transformed by that fact alone into a state actor."
[B.] The plaintiffs' antitrust claim failed because there was no evidence of an anticompetitive behavior by platforms:
Freedom Watch argues that we should infer an agreement [in restraint of trade] primarily from the Platforms' parallel behavior, as each company purportedly refused to provide certain services to Freedom Watch. But, as the district court explained, parallel conduct alone cannot support a claim under the Sherman Act. Freedom Watch puts forth two additional factors that it claims suggest conspiracy: that the Platforms are pursuing a revenue-losing strategy and that they are motivated by political goals. But Freedom Watch does not explain why either factor tends to show an unlawful conspiracy, rather than lawful independent action by the different Platforms.
Freedom Watch's [claim of monopolization] is also deficient. To state [such a claim,] … a complainant must allege that monopoly powers were acquired through "anticompetitive conduct." The only anticompetitive conduct that Freedom Watch alleges (without supporting factual allegations) is that the Platforms conspired against it to suppress conservative content, but not that the Platforms conspired to acquire or maintain monopoly power. A [monopolization] claim requires the latter allegation.
[C.] The plaintiffs' claim under D.C.'s public accommodation statute failed because the statute doesn't apply to online service providers:
[T]he D.C. Human Rights Act … prohibits discrimination on the basis of political affiliation in "any place of public accommodations." Relying on a D.C. Court of Appeals case interpreting that statute, U.S. Jaycees v. Bloomfield (D.C. 1981), the district court concluded that only physical places within the District of Columbia qualify as "places of public accommodation." …
On appeal, Freedom Watch contests the district court's interpretation of "place of public accommodations." It is joined by the District of Columbia, which submitted an amicus brief on this issue. The District of Columbia argues that the district court's reliance on Jaycees is misplaced. It contends that Jaycees is not authoritative because it was a decision on a preliminary injunction rather than a final decision on the merits and that the D.C. Commission on Human Rights has interpreted the Human Rights Act to reject a physical location requirement, Pool & Geller v. Boy Scouts of America, Nos. 93-030-(PA) & 93-031-(PA) (D.C. Comm'n on Human Rights June 18, 2001).
When interpreting D.C. law, we strive "to achieve the same outcome we believe would result if the District of Columbia Court of Appeals considered this case." The D.C. Court of Appeals in Jaycees held that "places of public accommodation" under the D.C. Human Rights Act must operate from a "particular place." … The Pool & Geller decision does not alter this analysis because the D.C. Court of Appeals reversed the Commission's decision, although it explicitly declined in that case to consider what qualified as a "place of public accommodation."
I would add that the D.C. ban on discrimination based on "political affiliation" in places of public accommodations is limited to discrimination based on "belonging to or endorsing any political party." Discrimination on mere ideological beliefs is not covered, as the D.C. Court of Appeals expressly held in Blodgett v. University Club (D.C. 2007).
I also think that 47 U.S.C. § 230 would preclude liability for service providers' decision to block material that they view as offensive. And I think (though here matters are less firmly established) that state and D.C. public accommodations laws can't apply to this fundamentally interstate medium, given the dormant Commerce Clause. But the court didn't have occasion to reach those questions.