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.

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Filed Under: 1st amendment, anti-conservative bias, antitrust, bias, content moderation, dc circuit, free speech, freedom watch, laura loomer, section 230
Companies: apple, facebook, google, twitter


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  • identicon
    Anonymous Coward, 29 May 2020 @ 6:53am

    The "political question" problem is usually what happens in court rooms.

    The court can't grant equitable relief or establish jurisdiction against plaintiffs or defendants that won't show up in court or follow court orders anyway.

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

  • icon
    Bloof (profile), 29 May 2020 @ 7:09am

    This nonsense is why I think people should be more afraid of Trump's executive order. The Trump admin have spent the past few years pumping raw sewage into the court system, from the supreme court down so common sense and the actual letter of the law may not be enough to get legal rulings that go against conservatives given how many utterly unqualified partisans have been given lifetime appointments in lower courts. These people will keep filing suits until they find a venue and judge who rules their way, and that's more likely than ever now, and if it gets appealed as far as the supreme court, the past few decades have shown they can't be relied upon to do what's right when a bad decision will benefit republicans.

    The internet is in for a bumpy ride.

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

    • icon
      arp2 (profile), 29 May 2020 @ 7:46am

      Re: SCOTUS Takes So Many Cases

      I think that's part of the calculus. Garbage district judge issues garbage opinion. Garbage judges on Court of Appeals affirm decision. Even if that decision is patently wrong, SCOTUS doesn't have time to accept all garbage decisions by the Courts of Appeals. So, using your raw sewage analogy, even a center-right SCOTUS and reasonable Courts of Appeals can't remove all the sewage from the system.

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

      • identicon
        David, 29 May 2020 @ 9:13am

        Re: Re: SCOTUS Takes So Many Cases

        Lindsay Graham has just asked senior conservative judges to retire in time for the do-garbage Senate to appoint young garbage judges (namely those with partisan rather than legal qualifications) who can then clog the court system for a half-century with garbage decisions.

        Really, the Republican Party is preparing to make its demise as painful for the U.S. as possible.

        The political system of the U.S. needs restructuring such that the lasting damage a thoroughly corrupt government can wreak in the time of a few years is less dire than it is now.

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

        • icon
          Thad (profile), 29 May 2020 @ 9:43am

          Re: Re: Re: SCOTUS Takes So Many Cases

          I've seen the idea of 18-year SCOTUS terms floated. I think it's a good idea; assuming a 9-justice Court, that means a vacancy every two years. Two appointments for every presidential term. A regular rotating to prevent the kind of jockeying that currently occurs around retirement and death.

          18 years is long enough that judges' decisions wouldn't be swayed by electoral politics, but short enough that a justice dying in office or retiring would be a rare occurrence.

          Unfortunately, it ain't gonna happen, because it would require a constitutional amendment.

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

    • identicon
      Joe, 29 May 2020 @ 9:46am

      Re: bloof

      The judge that originally dismissed this case was appointed by Trump.

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

  • identicon
    Pixelation, 29 May 2020 @ 7:46am

    "...but failed to allege colorable legal claims."

    This is the "anti-conservative" narrative in a nutshell and it starts with the Victim-in-Chief.

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

    • icon
      Scary Devil Monastery (profile), 1 Jun 2020 @ 2:19am

      Re:

      I found this part more amusing;

      "...Freedom Watch argues that we should interpret this local statute more broadly to make it consistent with the Americans with Disabilities Act."

      Did Freedom Watch just try to argue, in court, that holding "conservative" views should be held akin to actually being disabled? I think they did.

      That's...a staggering illustration which lengths the republicans want to go to in order to retain their narrative of being "victims".

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

  • identicon
    Anonymous Coward, 29 May 2020 @ 7:51am

    I'm assuming they file lawsuits like this precisely in order to lose them. They can then go back to their base and play the victims of unjust laws or biased judges (etc.), and rile up that base enough to get the laws / judges changed over time. With Trump in power for the next four and half years, I think we're about to see the end of the internet as we know it — and that may well be a popular thing Out There outside the bubble, whether we like it or not. Lawsuits like this are part of a war of attrition that will end with a much nastier war of legislation…

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

    • icon
      Stephen T. Stone (profile), 29 May 2020 @ 9:32am

      I'm assuming they file lawsuits like this precisely in order to lose them. They can then go back to their base and play the victims of unjust laws or biased judges (etc.), and rile up that base enough to get the laws / judges changed over time.

      Well, that, and grift money from the gullible. You’d be surprised how many times this pattern repeats itself with no one who supports these grifters catching on to the scheme.

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

  • icon
    Anonymous Anonymous Coward (profile), 29 May 2020 @ 7:51am

    The Public Square in the Digital Age

    It seems people keep conflating the concept of public square with private property. In real life, the public square is easy to define, it (for example) is that public park in the middle of town that is surrounded by private and possibly municipal buildings. One can go into that park and plop down their soap box and proceed to spew out their screed, so long as they don't incite a riot or other illegal behaviors. They cannot do that in those private or municipal buildings.

    On the Internet the borders surrounding the public park are more difficult to discern. The problem is that the Internet IS the public park, but in order to 'plop down your soapbox' one of two things must take place. One is to start your own website/blog/or these days Mastadon instance (where you can make the rules), and the other is to use someone else's website or blog or Mastadon instance. The thing is, that each of those websites/blogs/or Mastadon instances are PRIVATE property, even if they allow the general public in. They are allowed to have rules, and to enforce those rules.

    It's kind of tricky to navigate the concept. The Internet is public, but in order to be on the Internet one has to create a private instance, and to use the Internet one must navigate to one of those private instances. To my knowledge there are no 'public' instances (websites/blogs/or Mastadon instances) on the Internet. There are more popular instances (Facebook, Twitter, etc.) and there are less regulated instances (the Chan's, whatever number) but those are all private and operate under whatever rules the owners wish, and like the Chan's sometimes get out of control.

    Then there are government sites, but those aren't public squares either. Those government sites are there to perform some specific function, which might be to pass along information, or it might be to engage in some citizen to government interaction, like paying taxes. But government websites are not going to let you spew your screed there either. They are there for their function/purpose, not yours. That you use it to, say pay your taxes, does not give you the privilege to make your statement about how fair you think their tax rate or rules are.

    That leaves it up to you to start a website that you might call www.publicsquare.net or .org or whatever. If you leave it unregulated then your site might wind up like the Chan's, a mess of screeds or worse. Or you might find that posters are more inclined to an ideology that contradicts your ideology. Then you have to start making decisions, and your 'public square' becomes less public.

    Those who complain about being kicked off popular sites where their message may be heard by more people that their own site that has a limited, and echo chamber like following, are really just upset that their message isn't being taken as the bestest word in town. They want to be heard, and the popular websites are where one might get heard by more people. What better way to spread the word? There probably isn't, and when their words offend the site owners sensibilities they are uninvited. That they can't get the same size following on websites that have like sensibilities as their own is frustrating, I am sure, but taking a step back and rethinking their words doesn't play with their desire to impose their viewpoint everywhere. In their eyes, it's better to point fingers and blame those who uninvited them, often with spurious lawsuits like the one in the article above. Remember, when you form your hand to point at someone or something, there are three fingers pointing back at you. Take the time to consider why that might be.

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

    • icon
      arp2 (profile), 29 May 2020 @ 8:12am

      Re: The Public Square in the Digital Age

      It's an instructive comment, but it assumes that the folks suing these sites/platforms just don't know any better. They know exactly what they're doing and why. It's a win-win for them. If they win the case, well...they win. If they lose, they can complain that it's liberal judges, etc. and they still win. This litigation is done more for the optics than the actual results.

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

      • icon
        Thad (profile), 29 May 2020 @ 9:46am

        Re: Re: The Public Square in the Digital Age

        It's an instructive comment, but it assumes that the folks suing these sites/platforms just don't know any better. They know exactly what they're doing and why.

        In the case of Laura Loomer, I really don't think she does.

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

      • icon
        Scary Devil Monastery (profile), 1 Jun 2020 @ 2:21am

        Re: Re: The Public Square in the Digital Age

        "If they lose, they can complain that it's liberal judges, etc. and they still win."

        In a sane world it wouldn't be considered a "win" if, in order to make your case, you tried to invoke a disabilities act, arguing to the judge that being a conservative should be held similar to being mentally disabled.

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

    • icon
      Anonymous Anonymous Coward (profile), 29 May 2020 @ 8:28am

      Re: The Public Square in the Digital Age

      Whoops, I didn't know that www.publicsquare.net actually existed. I wonder what they do over there?

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

  • identicon
    bshock, 29 May 2020 @ 7:53am

    Yes, yes, for decades it's been known that reality has a clear anti-conservative bias.

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

  • identicon
    Anonymous Coward, 29 May 2020 @ 8:15am

    Kicking and Screaming

    I chalk up all of this impotent rage against a perceived anti-conservative bias to the boomer generation and the remnants of those who came before. My own experience as a gen-Xer, purely anecdotal, is that the boomers are the last generation to hold such bigoted beliefs (among civilized cities) and that all of their rage is their death rattle.

    I know for fact that large numbers of the current Trumpsucker Brigade spent their 20s as hippies, getting stoned and promoting "love everyone". Now, in their 70s, they've migrated fully to the wrong end of the spectrum, doing everything in their feeble power to hate everyone. "Boomer" has become synonymous with "hypocrite".

    We can rest easy knowing that, by the time my generation fully takes over from the previous, most of this sad episode will be history.

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

    • icon
      DannyB (profile), 29 May 2020 @ 8:35am

      Re: Kicking and Screaming

      I'm sure there are boomers who are the stereotype you describe.

      I can personally tell you that there are plenty of boomers who are liberal, anti Trump, who are not racist, sexist or violent.

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

    • icon
      Bloof (profile), 29 May 2020 @ 9:11am

      Re: Kicking and Screaming

      The numbers of people who actually participated in the pot, peace and love in aspect of the 60s and 70s is hugely overstated. Many participated in anti war protests, sure, but that doesn't make them hippies, just people who didn't want to be sent off to die. Most of the Trumper boomers are either the children of the rich that avoided the draft like Captain Bonespurs, or working class whites who got jobs that went nowhere, never left their small towns then retired after their industries collapsed, feeling embittered at a world that left them behind and looking for someone to blame for never having lived their lives... Fortunately republicans are there to provide them with an endless stream of 'others' and a morbidly obese orange clown to punch down on them.

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

      • identicon
        Anonymous Coward, 29 May 2020 @ 4:30pm

        Re: Re: Kicking and Screaming

        "Most of the Trumper boomers are either the children of the rich that avoided the draft like Captain Bonespurs, or working class whites who got jobs that went nowhere, never left their small towns then retired after their industries collapsed"

        Wow - no other possibilities exist?

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

        • icon
          Scary Devil Monastery (profile), 1 Jun 2020 @ 2:32am

          Re: Re: Re: Kicking and Screaming

          "Wow - no other possibilities exist?"

          There sure are. You've got the Trumper boomer who spent his last 40 years mourning the good old days of Jim Crow when no one gave a hoot about honest, god-fearing citizens burning crosses to keep the darkies in line and who now sees the light now that the president has declared him and his peers Very Fine People.

          You've got the Trumper boomer who grew up in the dismal burgh of Podunk, in Hicksville country, Iowa who is angry that very hiring business left his little hometown 20 years ago and never came back. Now eager to vote for the candidate who keeps promising to bring jobs back for everyone.

          You've got the Trump boomer who grew up in Pennsylvanian coal mining country and keeps voting Trump because he's the one and only candidate who keeps insisting that coal is a strategic reserve for the future and might thus save his job.

          Etc. Plenty of Trump boomer types. None of them, mind, any more flattering than Bloofs examples.

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

  • icon
    Tim R (profile), 29 May 2020 @ 8:18am

    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.

    What, no RICO?

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

  • icon
    Toom1275 (profile), 29 May 2020 @ 10:08am

    Plaontiffs provide no facts in their Complaint to support these contentions...

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

  • icon
    That One Guy (profile), 29 May 2020 @ 11:51am

    'Everyone thinks I'm scum? Must be a problem on their end...'

    Some people just cannot accept the fact that they're obnoxious assholes and people are showing them the door it would seem, nice to see yet another court shoot them down by pointing out that no in fact, social media does not owe them a platform to speak from.

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

  • icon
    ECA (profile), 29 May 2020 @ 11:59am

    how easy..

    To wonder around different sites, and Spill BS, just to have an affect, that you can take to court.
    As bad as complaining about the Editorial content in a news paper And or the Classifieds.(<---Hmmm, thats interesting)
    Didnt we take a few sites Down, because they were acting like Classifieds?? Even take one to court EVEN after they had dropped the problem sections??
    But How do you Sue, to make money from people NOT making money.

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

  • icon
    restless94110 (profile), 31 May 2020 @ 12:20am

    Bad News

    This terrible news. Again, the tech monopolies have been able to squirm free of any correction and allowed their continued dominance of the Civil Commons, choking off discourse. Thanks for explaining just how sadly it went down. You read the court's ruling and you just have to say: There oughta be a law. Yep, the court is correct: the law as written now doesn't prevent tech monopoly censorship of thought and discourse, but there sure oughta be a law preventing them from this. It's a crime.

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

    • icon
      Toom1275 (profile), 31 May 2020 @ 10:25am

      Re: Bad News

      [Asserts facts not in evidence]

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

    • icon
      That One Guy (profile), 31 May 2020 @ 10:53am

      Bad News for bad people

      I see your 'there ought to be a law' and raise you 'there already is a constitutional amendment, it's called the first, maybe look it up.'

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

    • icon
      Scary Devil Monastery (profile), 1 Jun 2020 @ 2:35am

      Re: Bad News

      "Again, the tech monopolies have been able to squirm free of any correction and allowed their continued dominance of the Civil Commons, choking off discourse."

      You mean the one where a judge refuted the claim because he made the ruling that "being conservative" doesn't fall under the "americans with disabilities" act, like "Freedom Watch" claimed?

      Well, I'm in two minds. The judge may be wrong about that, looking at your comment here.

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

  • identicon
    Anonymous Coward, 31 May 2020 @ 7:33pm

    All these clowns who have joined the Internet with the advent of Facebook in 2010 or so are really funny.

    Imagine yourself back in the late 90's/early 2000's, getting banned from whatever forum you were a regular on back then and thinking you could sue the admin for infringing on your freedom of speech.

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


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