Court Explains 1st Amendment To Tulsi Gabbard In Dismissing Her Ridiculous Lawsuit Against Google

Free Speech

from the that's-not-how-any-of-this-works dept

Just a week after the 9th Circuit easily upheld the dismissal of Dennis Prager’s silly lawsuit against Google for supposed anti-conservative bias, a district court has easily dismissed Rep. Tulsi Gabbard’s quite similar lawsuit against Google for… anti-Tulsi bias or some such nonsense. As we pointed out when the lawsuit was first filed, the case stood no chance at all, and was using completely debunked and rejected legal theories.

Judge Stephen Wilson made short work of the case, explaining to Gabbard and her Pierce Bainbridge lawyers how the 1st Amendment works, because the theory of it they presented in her case is… not it. Indeed, the court cites to the PragerU ruling from last week:

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,

Then we get a bit of 1st Amendment 101 — which is the kind of thing that you would think the lawyers from Pierce Bainbridge had learned in law school, but apparently they needed a refresher course. Perhaps they can try to ask for some Continuing Legal Education credit for the lesson.

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 . . . .? U.S. Const. amend. I. ?The First Amendment, applied to states through the Fourteenth Amendment, prohibits laws abridging the freedom of speech.? Animal Legal Def. Fund v. Wasden, 878 F.3d 1184, 1193 (9th Cir. 2018) (internal quotation omitted). 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.? United States v. Stevens, 559 U.S. 460, 468 (2010) (quoting Ashcroft v. ACLU, 535 U.S. 564, 573 (2002)) (emphasis added).

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); see Prager Univ., 2020 WL 913661, at *2 (?The Free Speech Clause of the First Amendment prohibits the government?not a private party?from abridging speech.?).

And, once again, the idea that Google becomes a state actor, because advertisers use it to advertise around an election is… not right. Not right at all.

Plaintiff alleges Google has become a state actor by virtue of providing advertising services surrounding the 2020 presidential election. ?Under this 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.? Halleck, 139 S. Ct. at 1928 (internal citations omitted). 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.?? Id. at 1928 (quoting Jackson v. Metropolitan Edison Co., 419 U.S. 345, 352 (1974)).

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.? Id. at 1928?29. ?Under the Court’s cases, those functions include, for example, running elections and operating a company town.? Id. at 1929. 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.

To support its contention that a private actor can regulate elections, Plaintiff directs the Court to Terry v. Adams, 345 U.S. 461, 463 (1953). However, Terry is utterly inapposite to Plaintiff?s contention. In 1954, the Supreme Court held that the Fifteenth Amendment was implicated when a political party effectively prevented black citizens from voting. Terry, 345 U.S. at 463. The Court held: ?The evil here is that the State, through the action and abdication of those whom it has clothed with authority, has permitted white voters to go through a procedure which predetermines the legally devised primary.? Id. at 477. But Terry bears no relation to the current dispute, where Google, an undisputedly private company, temporarily suspended Plaintiff?s Google advertising account for a matter of hours, allegedly based on viewpoint bias.

And then for those having difficulty catching up, the court explains that hosting election ads is not the same thing as running elections. Also, the court shoots down Gabbard’s wacky theory that efforts to protect its platform from foreign interference makes it an agent of the US government. Once again, that’s just laughably wrong.

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. Plaintiff?s ?national security? argument similarly fails. Google protects itself from foreign interference; it does not act as an agent of the United States. Nearly every media or technology company has some form of cybersecurity procedure. Under Plaintiff?s theory, every media organization that took steps to prevent foreign cybercrimes could potentially implicate the First Amendment. Google?s self-regulation, even of topics that may be of public concern, does not implicate the First Amendment.

The case was so easy that it was dismissed with prejudice, so that Gabbard cannot filed an amended complaint. She might still appeal, though one hopes that she finds lawyers who might advise her on how that’s likely to go.

As a side note, almost within hours of the dismissal dropping, so too did news of a bunch of new lawyers leaving Pierce Bainbridge, including one, Tom Frongillo, who John Pierce had named just weeks ago as helping him in representing Rudy Giuliani.

Filed Under: 1st amendment, content moderation, free speech, social media, tulsi gabbard
Companies: google, pierce bainbridge