Free Speech

Freedom Watch and Laura Loomer Lose Lawsuit Against Social Media Platforms

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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.

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  1. “Google, Facebook, Twitter, and Apple … alleging that they conspired to suppress conservative political views.”

    Whenever I sit in a room and there is someone else in the room from a competitor – guess who is also in the room? Lawyers. The whole notion that Google and Facebook (who generally hate each other) would conspire to do anything together is ludicrous.

    1. I have seen it argued in anti-competitive behavior complaints in Europe that when say, all the supermarkets put up the price of beans at roughly the same time, they are engaging in signalling to their oligarchic competitors, so that prices can be co-ordinated without the need for actual meetings or phone calls or emails.

      In other places this is called the free market at work.

      1. The best example of the negatives that come with oligopolies is the energy market from 2001-2008. So in 2007 Lee Raymond said this when America was in an energy crisis that made our energy intensive consumer spending economy dysfunctional:

        “No, I think if you look at that, Jim, in what I call a somewhat broader context, by that I mean not get caught up in the year to year or season to season issues that apply to the natural gas business. The fundamentals on supply, and by that I’m the indigenous supply, and I’m now talking about North America, so I am including Canada in that, I think are pretty much right on track where the study said they would be. And that is, with the exception of the Alaskan gas, it is a rapidly declining resource. We continue to find more gas, but the decline rates for when it’s found are exceedingly high, just as that study forecasted that they would be. This country is what I would call incipient on becoming a major gas importer and we’re going to go through a several year period here where we’re going to cycle between what appears to be we have almost enough indigenous resource to a period of time where if it were a very cold winter we would have to be importing large, large amounts. And that’s basically how you would expect it to transition to becoming a major importer.”

        https://www.eenews.net/tv/videos/713/transcript

  2. EV : I also think that 47 U.S.C. § 230 would preclude liability for service providers’ decision to block material that they view as offensive.

    A couple of questions :

    “any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable”

    (a) is “otherwise objectionable” a stand alone category ? Or is it to be interpreted ejusdem generis with the preceding items, which seem to be about sex, violence and harassment, and not about – say – opinions, or assertions of fact, about global warming, coronaviruses, the government of China or the probability of fraud with mail in ballots ?

    (b) what work is “in good faith” doing here ? It seems not to be about the good faithyness of the provider’s consideration (though presumably, the court would apply a test similar to the religious objector’s test – ie it has to be a genuine belief, however batty that might appear to a passer by.) Instead it seems to be about the good faithyness of the action taken to restrict access / availabilty.

    So perhaps there might be arguments about, say, whether it was in good faith to restrict access for both husband and wife, if the wife had posted something objectionable, and the provider was concerned that she might start using her husband’s account ?

    (c) I’m intrigued by the extension of the protection from provider to user. What might users be doing to restrict access to material they consider objectionable ?

    1. It’s certainly my understanding that it is in fact meant to cover items of the same nature as the listed objectionable items. Otherwise the list of objectionable items is completely redundant.

  3. As a matter of policy, I think that internet service providers and major social media platform providers should be regulated as utilities and not permitted to use editorial discretion regarding content.

    However, this is a matter for legislators, not courts.

    Federal law may well pre-empt state and local law concerning internet disputes. But I don’t think that the dormant commerce clause applies to discrimination laws, whatever their policy merits. They don’t restrict commerce. Nor do they treat out-of-state parties differently from in-state parties.

    1. Beware what you ask for. Utilities are regulated in exchange for permission for them to hold a monopoly. If we gave Google a monopoly on search and Facebook a monopoly on social chat, they might gladly accept regulation, but we consumers would be the losers.

      1. It’s just not true. Utilities don’t have to be a monopoly.

        There have been multiple long distance phone companies and express mail carriers for decades, multiple railroad lines for more than a century. Multiple bus lines, air lines, etc. But every one of them has to serve all comers.

        Also, google, facebook, twitter, etc. are very close to being de facto monopolies.

  4. twitter etal. escape libel laws that would apply to media outlets, because they do not create content. But now, twitter has decided to “fact check” President Trump. Does twitter’s editorial control now move the platform into the arena of news media? If not why not?

    1. Twitter would be responsible for any libelous statements that it itself posts in response to Trump. (Whether it’s responsible for libelous statements by fact-checkers is a harder call under sec. 230.) But this doesn’t make them responsible for libelous statements by various Twitter users, which are quite unrelated to its response to Trump.

      1. Ummm — removes, yes — writes in response, I’m not so sure….

    2. twitter etal. escape libel laws that would apply to media outlets,

      No. Twitter is subject to the same rules wrt defamation as other media outlets:

      1) All of them are responsible for the content they themselves create.
      2) None of them are responsible for the online content provided by others.
      3) Their decision to moderate content provided by others does not create any liability on their part.

  5. Professor Volokh, I think you are right about Section 230, which grants immunity for “good faith” censorship the site finds “otherwise objectionable, whether or not such material is constitutionally protected”

    But what do you think about the argument that the “good faith” requirement means that social media sights must provide basic due process protections like notice and a qualified right to correct for the censorship to qualify as “good faith”?
    As I show in some detail in my Federalist article viewpoint neutral due process won’t violate social media companies’ First Amendment right. See “What The Feds Should Do Instead Of Banning Viewpoint Censorship From Social Media”
    https://thefederalist.com/2019/11/12/what-the-feds-should-do-instead-of-banning-viewpoint-censorship-from-social-media/
    Professor, even if my Section 230 argument is a stretch, due you think due process regulations could survive court scrutiny better than Freedom Watch’s claims?

  6. I wonder what messages these platforms are getting from governments across the world, “suggesting” various types of censorship?

    Is there any guarantee that these “suggestions” will be aired publicly? Not unless the company chooses to challenge them, but it will often be easier to comply, especially for “hate speech” they don’t like anyway.

    I hypothesize it’s hardly a coincidence that Facebook’s censorship appeals board contains all sorts of ex-bureaucrats from all over the world – that is, people who know what stuff their respective countries want censored.

    1. Several law profs, an ex prime minister of Denmark, a former Israeli prosecutor who founded that nation’s “Anti-Racism Coordinating Government unit,” and a “former commissioner of the National Communications Commission of Taiwan.”

      https://oversightboard.com/meet-the-board/

    2. That’s essentially the problem: If the US permits multinational services like FB or Youtube to respond to foreign demands for censorship, the US gets subjected to some kind of aggregation of every major country’s censorship demands. Mostly Chinese at the moment, of course, because they’re the most dangerous to cross.

      Short of creating some kind of liability for such compliance, we might as well have adopted their laws!

      1. The EU and various members of it has also created a lot of regulation of Internet activity.

  7. Seems like barking up the wrong tree, to focus a monopoly charge on speech, suppression of speech, or anything else about speech, while looking to government to impose a remedy by regulation of private publishers.

    And why is that even legally necessary? The internet giants are undoubtedly monopolists. Not monopolists of speech, of course, but of advertising sales. Evidence to show that is overwhelming. Where thousands of publications used to compete to publish advertising, a tiny fraction now survive, and most of the advertising revenue the vanished publishers once relied upon now goes to a few giants instead.

    Of course, a complication in attacking that problem is that the ad monopoly has at its foundation a special speech privilege, authorized by Congress. Section 230 enabled the “print everything without reading anything,” business model. That in turn wrecked competitors’ market for ad sales, and drove them out of business by the thousands. That did indeed constrain publishing opportunities for would-be authors, but as a side-effect.

    Of course, a final irony is that it is the monopolistic power of these media giants which makes the plaintiffs want so much to force the monopolists to publish the plaintiffs’ stuff. Maybe they would enjoy being featured in monopoly media. Too bad the monopolists get to decide.

  8. Lost Lawsuit Leaves Liberals Laughing, Laura Loomer Laments

  9. “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):”

    Of course, the court didn’t rule as to whether Google, et. al. did actually conspire to suppress conservative political views, they just said such conspiracy would not violate the 1st Amendment.

  10. Can someone fill me in on some timeline elements I seem to have missed?

    I thought it was Trump threatening to take action of some kind (perhaps today) in response to Twitter posting fact-check links below his postings. Yet this lawsuit has apparently been in process for long enough for it to be decided today. Is there any link between this case and what Trump’s current umbrage?

    1. Not directly. But the Trumpkin orbit has spawned dozens of such cases. It’s just coincidence that this particular court decision happens to have been released yesterday.

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