Court Tosses Antitrust Claims That Internet Giants Are Biased Against Conservatives–Freedom Watch v. Google

Apologies if I’m not being appropriately empathetic, but I think lawsuits alleging that Internet giants are biased against conservatives are stupid and counterproductive. They are premised on factually unsupportable assertions of bias, and most of these plaintiffs would enthusiastically cheer such bias so long as it worked against minorities or the libs. Further, there is no viable solution to “fix” bias. “Bias” is intrinsic in every media ecology, so it’s impossible to eradicate. The closest “solution” to a bias problem is a mandatory must-carry rule, but that would allow the trolls to overwhelm the ecosystem, destroying it.

The plaintiffs in this case are Freedom Watch and Laura Loomer. Freedom Watch is a “conservative non-profit public interest organization” with accounts on YouTube, Facebook, Twitter, and Apple. Freedom Watch claims that, due to conservative content suppression, its growth and revenues have plateaued or declined. Loomer is a self-described “conservative investigative journalist and political activist” with 260k Twitter followers. She claims Facebook suspended her and Twitter banned her.

The case got assigned to Judge McFadden, a Trump appointee and a Federalist Society member. [If you’re interested, check out my Federalist Society “debate” on this topic from a year ago.] On the surface, this seems like a favorable judicial draw for the plaintiffs. Indeed the judge expressly sympathizes with the plaintiffs’ “non-trivial” concerns. It doesn’t matter; the plaintiffs still lose.

Standing. The plaintiffs alleged that they suffered financial losses due to their suppression. This satisfies the Article III requirements.

Sherman Act Sec. 1. The complaint claims that the Internet giants are in a conspiracy, but it provides no specifics. For example, it doesn’t allege that the defendants met or communicated to collectively suppress conservative content. To get around this, the plaintiffs allege that the giants copied each other (“conscious parallelism”) to deny services to the plaintiffs, but this is belied by the fact that Freedom Watch still has its accounts. Further, the plaintiffs don’t provide any evidence that the copying was the product of a conspiracy. To get around this, the plaintiffs argued that tossing profitable customers overboard shows they were cooperating. The judge responds that the giants might actually maximize their profits by tossing garbage overboard. (Indeed, we have lots of evidence that the Internet giants are keenly laser-focused on maximizing their profits).

Sherman Act Sec. 2. The monopolization claim lacked any specificity or credible data.

D.C. Human Rights Act. The plaintiffs claimed violations of the DC Humans Rights Act, which restricts discrimination by “places of public accommodation.” This is a familiar argument that has gotten some traction for Americans with Disabilities Act claims against websites (I eventually will blog the 9th Circuit’s Robles case on that point). However, the judge here says: “As the D.C. Court of Appeals has made clear, the alleged place of public accommodation must be a physical location,” and the Internet giants’ speech fora aren’t that. Thus, it doesn’t matter that other courts interpreting other laws have found that online services constitute places of public accommodations. Even though “platforms like Facebook and Twitter have changed the ways people interact with each other, and these social media networks now permeate most aspects of our lives,” the judge defers to the DC Circuit’s precedent.

First Amendment. The First Amendment does not apply to the plaintiffs here because the Internet giants aren’t state actors. “Facebook and Twitter, for example, are private businesses that do not become ‘state actors’ based solely on the provision of their social media networks to the public.”  To get around this, the plaintiffs cite Packingham. The judge responds that Packingham “did not create a new cause of action against a private entity for an alleged First Amendment violation.” The plaintiffs also cited the Second Circuit’s Halleck decision, pending before the US Supreme Court. Judge McFadden distinguishes it, saying that case involved a close intertwining between the government and the cable channel. The judge explains:

the Plaintiffs here allege no nexus between the Platforms’ actions and a function traditionally reserved exclusively to the state. Nor do they contend that the Platforms were designated by the state to perform a governmental operation. Instead, the Amended Complaint focuses on the Platforms’ alleged suppression of conservative political content. It details, for instance, the seemingly disparate treatment of conservative news publishers on Facebook and of conservative commentators on Twitter. But while selective censorship of the kind alleged by the Plaintiffs may be antithetical to the American tradition of freedom of speech, it is not actionable under the First Amendment unless perpetrated by a state actor.

Section 230. In a footnote, the judge declines to opine on its applicability.

In the end, this is an easy case for the judge, who set aside any sympathies to apply the law. I imagine this case will go up on appeal, but the opinion has no obvious defects that should trigger a different result.

Case citation: Freedom Watch, Inc. v. Google, Inc., 2019 WL 1201549 (D.D.C. March 14, 2019). The initial complaint.

Some Related Posts:

Section 230 Preempts Unfair Competition Law Claim–Taylor v. Twitter
Twitter Defeats Yet Another Lawsuit from a Suspended User–Cox v. Twitter
* Twitter’s TOS Upheld Despite Unilateral Amendment Clause—Brittain v. Twitter
Another Suspended Twitter User Loses in Court–Kimbrell v. Twitter
Comments on Trump’s Empty Tweetstorm Threatening Social Media Providers
Section 230 Protects Twitter’s Decision to Suspend User’s Account–Mezey v. Twitter
Twitter Gets Powerful Win in “Must-Carry” Lawsuit–Taylor v. Twitter
YouTube Isn’t a Company Town (Duh)–Prager University v. Google
Facebook Defeats Lawsuit By User Suspended Over ‘Bowling Green Massacre’–Shulman v. Facebook
Facebook Not Liable for Account Termination–Young v. Facebook
Online Game Network Isn’t Company Town–Estavillo v. Sony