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

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


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  • This comment has been flagged by the community. Click here to show it
    icon
    seedeevee (profile), 5 Mar 2020 @ 9:44am

    Leave it to Masnick to point out and dance on the grave of the human right of free speech - while rubbing our face with monopolist legalese.

    reply to this | link to this | view in chronology ]

  • icon
    You're a Gazelle! (profile), 5 Mar 2020 @ 9:53am

    The courts many sentences with thought out reasoning explains why you are wrong with your single broken one with none.

    reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 5 Mar 2020 @ 9:58am

    With all of these stupid lawsuits coming from elected leaders & those seeking that position perhaps we need to make them past a civics test before they can run for office.

    We force immigrants to answer questions about the history of America that a huge majority of "real" Americans couldn't pass, so if they want to run the country perhaps we should make sure they understand the basic principles the country is founded upon.

    reply to this | link to this | view in chronology ]

    • identicon
      AnonOps, 5 Mar 2020 @ 10:00am

      Re:

      If you know and understand the principles of the founders of the United States of America, that makes you a terrorist suspect nowadays.

      The founders are considered terrorists by today's law enforcement and the governments, alphabet soup agencies, etc.

      reply to this | link to this | view in chronology ]

      • icon
        Tanner Andrews (profile), 7 Mar 2020 @ 12:51am

        Re: Re:

        The founders are considered terrorists by today's law enforcement and the governments

        In fairness, you ought to admit that they were not well-regarded by the [British] authorities of the time, either.

        reply to this | link to this | view in chronology ]

    • icon
      Thad (profile), 5 Mar 2020 @ 10:24am

      Re:

      With all of these stupid lawsuits coming from elected leaders & those seeking that position perhaps we need to make them past a civics test before they can run for office.

      Who writes the tests?

      Who scores them?

      Who certifies the results?

      We used to require people to pass tests in order to vote. They were used as an excuse to keep black people from voting. I foresee much the same outcome if we were to introduce tests for holding office.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 5 Mar 2020 @ 11:29am

        Re: Re:

        If you were to introduce tests for holding office... the requirement should be that they are the EXACT SAME TESTS used for citizenship. This does have the downside that the same people would be prevented from entering the country as would be prevented from entering political office, which is a tad isolationist. But it would prevent a number of other types of shenanigans.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 5 Mar 2020 @ 12:03pm

          Re: Re: Re:

          The testing of civics knowledge belongs in high school and you do not graduate if you fail the test. That is the way is was back in the day when education was funded at reasonable levels and a good education was valued by most everyone.

          Contrast that with today where some folk dislike the educated. iirc, pol pot engaged in a campaign to rid cambodia of all educated or so called elites and this included anyone who had a vaccination or dental cavity fillings.

          Any similarities with the out of their mind wing nuts of today?

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 5 Mar 2020 @ 12:33pm

            Re: Re: Re: Re:

            some?

            Try an entire political party and at least half the damned country is openly hostile to education, science and technology... to the point where they think it's a good idea to put a dude in charge of a virus outbreak that thinks praying away disease is the way to go.

            reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 5 Mar 2020 @ 12:48pm

      Re:

      I sent a job application to one Presidential candidate back in the eighties, and surprisingly got an 8x10" glossy photo signed by him!

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 7 Mar 2020 @ 7:30am

      Re:

      Said people would never agree to that. And unfortunately their agreement is both necessary and sufficient to implement this plan.

      reply to this | link to this | view in chronology ]

  • identicon
    AnonOps, 5 Mar 2020 @ 9:58am

    Tulsi has become Preger University in a skirt.

    The only government agency that GOOGLE has is its corporate tax identification number, and that in no way makes it a government agency of the UNITED STATES OF AMERICA,

    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 5 Mar 2020 @ 10:09am

    I knew the court would side to HRC, but I had high hopes Tulsi would win this lawsuit.

    reply to this | link to this | view in chronology ]

  • icon
    Chris-Mouse (profile), 5 Mar 2020 @ 10:58am

    It's amazing how many people think that my failure to loan them my soapbox somehow infringes on their ability to step up on their own soapbox and speak.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 5 Mar 2020 @ 11:31am

      Re:

      Ah; but the unfairness is that YOUR soap box has gained a reputation over the years to be used by reputable speakers, so people actually congregate near it and listen to what is said.

      THEIR soap box is generally ignored due to the history of disconnect with the subjects held dear by the people walking by. It's so unfair!

      reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 5 Mar 2020 @ 12:37pm

    Wow, that judge is really dumb. Pretending that Google has no power over elections. HA HA HA! But the commie lefties will have us believe that the Russians DO have power over our elections (Hillary holds that position regarding her own failings, and her glossolalia on the topic is why the suit was filed anyhow). And worry about Cambridge Analytica, of course. But not the actual companies they got their data from lulz all over.

    reply to this | link to this | view in chronology ]

    • icon
      Mike Masnick (profile), 5 Mar 2020 @ 12:48pm

      Re:

      Wow, that judge is really dumb. Pretending that Google has no power over elections. HA HA HA!

      Not what the judge said.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 5 Mar 2020 @ 1:57pm

      Re:

      That judge said that like political parties, Google is not part if the government. Political parties certainly influence elections, and the speech they support shows much more bias than any moderation carries out by Google.

      reply to this | link to this | view in chronology ]

    • icon
      Scary Devil Monastery (profile), 6 Mar 2020 @ 1:49am

      Re:

      "Wow, that judge is really dumb. Pretending that Google has no power over elections."

      Hmm. Nope, the judge said nothing about that. The judge stated that "Google is not government". And in this the judge is 100% correct.

      You, otoh, have made 6 or 7 assertions in as many sentences, all of which are demonstrably factually wrong.

      Shrieking in hysterics and throwing poop is not a good input in a debate, no matter that it appears to be the official rebuttal of the alt-right to anything saner minds have to say.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 6 Mar 2020 @ 5:50am

      Re:

      Wow, that judge is really dumb.

      Well, he was appointed by Reagan, and you know what a senile dipshit that guy was.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 5 Mar 2020 @ 2:25pm

    The Bigger Joke

    Who is the bigger joke? Tulsi Gabbard or Pierce Bainbridge?

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 5 Mar 2020 @ 4:08pm

      Yes

      Tulsi. Pierce made a stupid argument that was rightly laughed out of court, but Tulsi is the one who paid him to make it.

      Alternatively, option C: The gullible who thought this was a legitimate lawsuit rather than a PR stunt and/or a tantrum by someone angry that the world doesn't work the way they wanted it to.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 5 Mar 2020 @ 8:31pm

        Option C

        A litigation investor would fall under your option C. Pierce has been accused of running a Ponzi scheme with investors as patsies. It only takes one sucker and they are born every minute.

        reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 6 Mar 2020 @ 5:27pm

        Option C

        A litigation investor would fall under your option C. Pierce has been accused of running a Ponzi scheme with investors as patsies. It only takes one sucker and they are born every minute.

        reply to this | link to this | view in chronology ]

  • icon
    Toom1275 (profile), 5 Mar 2020 @ 9:59pm

    Note:

    "Goggle moderated Tulsi" is a deliberate mischaracterazation of what happened.

    It was actually: Google suspended Tulsi's ads for a few hours until a fraud warning flag triggered by a sudden change in payment account activity could be cleared up.

    "We won't work for you if you can''t pay" is a far cry from the nefarious election-influencing plot it got played up to be.

    The first amendment and the false claims of "State actor" and "centaur ship" are wholly irrelevant to the situation, and were only thrown in because the lawsuit was blatantly nothing but an illegitimate PR stunt.

    reply to this | link to this | view in chronology ]

    • icon
      Stephen T. Stone (profile), 5 Mar 2020 @ 10:14pm

      Google suspended Tulsi's ads for a few hours until a fraud warning flag triggered by a sudden change in payment account activity could be cleared up.

      That, uh…that sounds like moderation activity.

      reply to this | link to this | view in chronology ]

      • icon
        XcOM987 (profile), 6 Mar 2020 @ 12:55am

        That word, I do not think it means what you think it means?

        To quote Inigo Montoya, You keep using that word. I do not think it means what you think it means.

        Doesn't sound like moderation in the slightest to me, moderation would be someone or something reviewing a posting, video, audio clip and deciding that it is to be removed/blocked due to it's contents.

        This on the other hand sounds nothing more than an automatic anti fraud prevention system kicking in when suspicious activity was observed on the account in question, once the issue had been cleared up all services were restored.

        All Google was doing (If the claim is true) was nothing more than protecting the user from fraud/losing their account and ensuring that they got paid fairly as I assume they will be made to refund any costs or fee's if it is found to have been done so under fraudulent means

        reply to this | link to this | view in chronology ]

        • icon
          Stephen T. Stone (profile), 6 Mar 2020 @ 2:10am

          This on the other hand sounds nothing more than an automatic anti fraud prevention system kicking in when suspicious activity was observed on the account in question, once the issue had been cleared up all services were restored.

          Right, that’s moderation of activity on Google systems.

          reply to this | link to this | view in chronology ]

          • icon
            XcOM987 (profile), 6 Mar 2020 @ 4:41am

            Re:

            I would disagree that it is moderation, as the material in question and access was only prevented whilst under fraud checks, it's not like someone denied their access to the system due to their beliefs, contents, or some other arbitrary reason.

            It's the same as your bank account locking out your bank card due to suspected fraud until you have confirmed everything.

            reply to this | link to this | view in chronology ]

            • icon
              Stephen T. Stone (profile), 6 Mar 2020 @ 8:26am

              the material in question and access was only prevented whilst under fraud checks

              Right, Google limited someone’s access to its services, and any personal content therein, based on activity surrounding that service and that content.

              …how isn’t that moderation, again? 🤔

              reply to this | link to this | view in chronology ]

              • icon
                XcOM987 (profile), 7 Mar 2020 @ 1:56am

                Re:

                As I understand from google'ing and my knowledge, moderation is the process of eliminating or lessening extremes. It is used to ensure normality throughout the medium on which it is being conducted.

                So moderation would be the complete removal of something someone posted or revoking of services due to a breach of rules, an opposing viewset, or such.

                I honestly don't see how a temporary suspension of services due to fraud verification constitutes moderation, if you try to buy something, and your bank blocks the payment until you verify that it's you, is the bank moderating you or are they just protecting your finances and themselves from fraud? but that's just my understanding of it, I might be wrong but in my world that's how I would see it.

                reply to this | link to this | view in chronology ]

                • icon
                  Stephen T. Stone (profile), 7 Mar 2020 @ 3:13am

                  moderation is the process of eliminating or lessening extremes. It is used to ensure normality throughout the medium on which it is being conducted.

                  You see a tree…

                  I honestly don't see how a temporary suspension of services due to fraud verification constitutes moderation

                  …and yet you miss the forest.

                  reply to this | link to this | view in chronology ]

              • icon
                Toom1275 (profile), 8 Mar 2020 @ 8:54am

                Re:

                Any business that won't give you anything without you paying is "moderating" you.

                reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 6 Mar 2020 @ 4:11am

      PR Stunt

      Clearly a PR stunt. Like Masnick said, the lawyers should be embarrassed. But they are lawyers, so that may be asking too much.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 6 Mar 2020 @ 2:01pm

    A Bad Joke

    Everything I read about this firm says bad joke. It is interesting wonder that they are still in business. The managing partner sounds like a train wreck with serious issues.

    reply to this | link to this | view in chronology ]


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