First Voters Reject Tulsi Gabbard, Then a Judge Does–Gabbard v. Google

March 7, 2020 · by · in Content Regulation, Derivative Liability, Marketing

Super Tuesday wasn’t so super for Democratic presidential candidate Tulsi Gabbard. First, she polled less than 1%–territory usually occupied by withdrawn or fringe candidates. Though, remarkably, she did earn two delegates. Mind blown.

Second, the same day, a court completely rejected her lawsuit against Google. She had alleged that Google deliberately interfered with her advertising after she made a splash at one of the Democratic primary debates. She asserted that Google was a state actor and bound by First Amendment limits on restriction of her speech.

While her argument was always mockable from day 1, the intervening Ninth Circuit decision in PragerU v. Google made it completely untenable. Thus, this opinion starts by quoting PragerU: “Plaintiff’s claim, however, ‘runs headfirst into two insurmountable barriers—the First Amendment and Supreme Court precedent.'”

The rest of the opinion piles on:

  • “Google is not now, nor (to the Court’s knowledge) has it ever been, an arm of the United States government.”
  • “Plaintiff’s argument is that, by regulating political advertising on its own platform, Google exercised the traditional government function of regulating elections….What Plaintiff fails to establish is how Google’s regulation of its own platform is in any way equivalent to a governmental regulation of an election. Google does not hold primaries, it does not select candidates, and it does not prevent anyone from running for office or voting in elections. To the extent Google ‘regulates’ anything, it regulates its own private speech and platform.”

The court concludes: “Google’s self-regulation, even of topics that may be of public concern, does not implicate the First Amendment.” That’s a partially imprecise statement. Google’s self-regulation does implicate the First Amendment–it is absolutely PROTECTED by the First Amendment, something that censorial plaintiffs futilely seek to undermine.

Implications

Undeterred by her abysmal numbers, Gabbard is still pursuing the presidency. As a result, she can use this ruling to rally her base. I trust the voters will respond wisely.

Political advertising remains vexing to the major online companies. To recap: Twitter has banned it, Facebook welcomes it (even flat-out lies), and YouTube has restricted microtargeting and will fact-check it. Each of these strategies is flawed, so no one will ever be satisfied with the outcomes from any service. Not coincidentally, that will lead to more politicians feeling screwed by the online services, which ensures a constant source of angst to motivate new online advertising regulations.

Fortunately, the First Amendment does stand in the way of regulatory overzealousness. The Internet incumbents aren’t state actors, and anyone suing to reach a different conclusion confirms their pro-censorship bias.

Case citation: Tulsi Now, Inc. v. Google, LLC, 2:19-cv-06444-SVW-RAO (C.D. Cal. March 3, 2020)

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