DC Appeals Court Dumps Lawsuit Claiming Multiple Tech Companies Are Engaged In An Anti-Conservative Conspiracy
from the come-back-with-something-actionable dept
Early last year, a federal court dumped a lawsuit filed by alt-right figureheads Laura Loomer and Freedom Watch (Larry Klayman’s organization) alleging multiple online platforms were engaging in a government-enabled conspiracy to silence them. Mixing and matching liberally from precedent that didn’t say what the plaintiffs thought it said, the lawsuit tried to skirt around things like Section 230 immunity by pretending this was about being unconstitutionally blocked from entering public spaces.
The lawsuit has now been rejected twice. The DC Circuit Appeals Court decision [PDF] sums up the action at the lower level, noting that it’s affirming the call made by the district court.
FreedomWatch and LauraLoomer (collectively, “FreedomWatch”) brought this suit against Google, Facebook, Twitter, and Apple (the “Platforms”) alleging that they conspired to suppress conservative political views and violated the First Amendment, the Sherman Antitrust Act, and the District of Columbia Human Rights Act. The district court dismissed the complaint, holding that Freedom Watch had standing to sue but failed to allege colorable legal claims.
The platforms being sued aren’t happy standing was even granted to Freedom Watch. But that hardly matters because standing or not, there are no actionable claims in the lawsuit. The Appeals Court points out the obvious to the plaintiffs.
Freedom Watch’s First Amendment claim fails because it does not adequately allege that the Platforms can violate the First Amendment. In general, the First Amendment “prohibits only governmental abridgment of speech.” Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921, 1928 (2019). Freedom Watch contends that, because the Platforms provide an important forum for speech, they are engaged in state action. But, under Halleck, “a private entity who provides a forum for speech is not transformed by that fact alone into a state actor.” Freedom Watch fails to point to additional facts indicating that these Platforms are engaged in state action and thus fails to state a viable First Amendment claim.
The court also says there’s no evidence of a conspiracy between the platforms that might engage antitrust law. Freedom Watch speculated some platforms are willing to lose money to shed themselves of “conservative” users to align their user base with the developers’ and owners’ political views. The court points out similar conduct by multiple platforms is not enough to substantiate a conspiracy claim.
Freedom Watch does not explain why either factor tends to show an unlawful conspiracy, rather than lawful independent action by the different Platforms.
The same goes for the plaintiffs’ anticompetitive practices claim.
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 § 2 claim requires the latter allegation.
And, like the lower court, the Appeals Court isn’t willing to stretch the District of Columbia’s Human Rights Act to read more like the Americans With Disabilities Act, which has seen successful claims brought against websites. But being banned from a platform isn’t the same as being discriminated against by a lack of equal access. More to the point for this case, precedent in the district has not equated social media platforms to physical public spaces.
Freedom Watch argues that we should interpret this local statute more broadly to make it consistent with the Americans with Disabilities Act. That Act also contains a provision concerning places of “public accommodation,” and several federal courts have concluded that clause sweeps wider than just physical places. See, e.g., Carparts Distribution Ctr. v. Auto. Wholesaler’s Ass’n, 37 F.3d 12, 19 (1st Cir. 1994). But as the district court noted, other federal courts have reached the opposite conclusion and held that only physical places qualify as places of public accommodation under the ADA. See Freedom Watch, 368 F.Supp.3d at 39. Moreover, the D.C. Court of Appeals is the arbiter of D.C. law and the definitions of “public accommodation” in the two laws are different from one another.
It’s not over yet, though. The plaintiffs can still attempt to waste the time of the DC Appeals Court by asking for a rehearing. Or they can take it to the top level by petitioning the Supreme Court to examine a bunch of baseless claims that couldn’t survive a motion to dismiss at the lowest level of the federal court system. Freedom Watch and Laura Loomer are free to spend their litigation money however they want. But we’re the ones on the hook for paying federal judges to peruse garbage takes masquerading as causes of action. And that’s kind of irritating.