Court Dismissed Lawsuit Brought Against Social Media Companies Alleging An Anti-Conservative Conspiracy

from the lawsuits-are-the-new-tinfoil dept

Alt-right sideshows Laura Loomer and Larry Klayman sued Twitter, Facebook, Google, and Apple for [checks filing] participating in a government-enabled conspiracy to deplatform Freedom Watch/Loomer in order to further a leftist agenda, etc. etc. ad nauseum. Their complaint alleged violations of the Sherman Act, DC's public accommodation law, and the First Amendment. In support of these allegations, the plaintiffs offered vague theories about "public platforms" and some misreadings of pertinent court precedent. (via Eric Goldman)

After a round of motions, the court has ruled in favor of everyone being sued. The decision [PDF] makes it clear none of the arguments made by the plaintiffs hold water, much less achieve complete coherence. The only thing the court agrees with is that Loomer and Freedom Watch have standing to bring the suit. But standing is only worth something when your arguments have merit.

While they have established standing, the Plaintiffs have failed to state viable legal claims. Consider first their Sherman Act arguments. Section 1 of the Sherman Act states that “[e]very contract, combination . . . , or conspiracy, in restraint of trade or commerce among the 7 several States, or with foreign nations, is declared to be illegal.” 15 U.S.C. § 1. “Independent action is not prescribed” by § 1. Monsanto Co. v. Spray-Rite Service Corp., 465 U.S. 752, 760 (1984). So a valid claim must allege that the Platforms “had a conscious commitment to a common scheme designed to achieve an unlawful objective.” Id. at 764. The Plaintiffs’ claim fails to do this.

True, the Amended Complaint repeatedly states that the Platforms have engaged in a conspiracy or illegal agreement. See, e.g., Am. Compl. 4, 5, 12, 17. But it offers only these conclusory statements to suggest the existence of such an agreement. It includes no allegations, for example, that any of the Platforms met or otherwise communicated an intent to collectively suppress conservative content.

A conspiracy requires the participation of conspirators. But some of the alleged conspirators still played ball with the plaintiffs, which undercuts the conspiracy needed to sufficiently allege antitrust violations.

The Plaintiffs also suggest that the Platforms “have engaged in ‘conscious parallelism’ and in concert mimicked each others’ refusal to deal with Freedom Watch and Ms. Loomer.” Am. Compl. 21. But Freedom Watch admits that it “has and still does pay Google and YouTube, Facebook and the other Defendants for services.” Id. at 11. This admission contradicts assertions of a coordinated “refusal to deal” with the Plaintiffs.

The complaint fares no better when dealing with the second antitrust allegation -- the supposed "monopoly" power of the [checks notes] four defendants being sued. As the court points out, the plaintiffs could have brought some data to their legal fight. Instead, they chose to bring conclusory statements and assertions about "leftist agendas."

[T]he Plaintiffs offer no market share data for any of the Platforms in either the local or worldwide markets for media and news publications. Instead, they make claims about the “social network global market,” the “social networking advertising revenue” market, the “digital ad revenues” market, and the “mobile ad market.” Am. Compl. 18. And though the Amended Complaint states that “59% of Twitter users get their news through the Twitter platform” and that “48% of all American adults [get] their news from Facebook,” it offers no support for the notion that either firm has achieved or tried to achieve monopolization of the nationwide media and news publications market.

The allegations claiming that kicking Loomer/Freedom Watch violated DC's Human Rights Act is just as ridiculous. The court points out the law refers only to physical public spaces and it's not willing to re-litigate a DC circuit opinion and/or rewrite local law on behalf of the plaintiffs.

Finally, the court addresses the most ridiculous of all the lawsuit's assertion: that moderation decisions by social media services somehow violated the plaintiffs' First Amendment rights. The plaintiffs cite the Packingham decision by the Supreme Court, completely misreading that decision's findings. In that case, the court said the government couldn't prevent people from accessing internet services. Loomer and Klayman pretend it actually said platforms can't ban people from accessing their platforms. The district court points out the distinction the plaintiffs are ignoring.

True, in Packingham, the Supreme Court recognized that Facebook and Twitter are among the “most important places (in a spatial sense) for the exchange of views” in society today. 137 S. Ct. at 1735. But the case involved a challenge to a state law that limited the speech rights of certain criminals on these platforms. Id. at 1738. It did not create a new cause of action against a private entity for an alleged First Amendment violation.

The second citation from the plaintiffs isn't any better, and the court again restates the obvious: moderation decisions by private companies are not actions taken by government entities, no matter how many users the platforms accommodate.

[T]he Plaintiffs here allege no nexus between the Platforms’ actions and a function traditionally reserved exclusively to the state. Nor do they contend that the Platforms were designated by the state to perform a governmental operation. Instead, the Amended Complaint focuses on the Platforms’ alleged suppression of conservative political content. It details, for instance, the seemingly disparate treatment of conservative news publishers on Facebook and of conservative commentators on Twitter. Am. Compl. 4-5. But while selective censorship of the kind alleged by the Plaintiffs may be antithetical to the American tradition of freedom of speech, it is not actionable under the First Amendment unless perpetrated by a state actor. Thus, their claim must be dismissed.

This will surely be appealed. But the outcome will be the same. Actions by private companies can't violate rights and the existence of multiple social media platforms simultaneously preemptively defeats most antitrust allegations.

Some conservatives are convinced there's a leftist agenda being played out in social media. But rather than fight it with more speech, they're trying to bring the government in to fix these perceived problems. Whatever floats your speech boat, but remember, any "fixes" you get will remain in place for years -- even if the perceived pendulum swings the other way. The rules that "level the playing field" will come back to bite these agitators in their asses if they ever manage to talk a court or a bunch of legislators into taking their bad ideas seriously.

Hide this

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: antitrust, bias, conservative bias, first amendment, free speech, larry klayman, laura loomer, monopoly, social media
Companies: apple, facebook, google, twitter

Reader Comments

Subscribe: RSS

View by: Thread

  1. identicon
    Baron von Robber, 18 Mar 2019 @ 10:31am


    Reposted from another forum

    " By Moose and Squirrel

    An anguished question from a Trump supporter: "Why do liberals think Trump supporters are stupid?”

    Short answer:

    Because if you're NOT stupid, we must turn to other explanations, and most of them are less flattering."

    The serious answer: Here’s what we really think about Trump supporters - the rich, the poor, the malignant and the innocently well-meaning, the ones who think and the ones who don't...

    That when you saw a man who had owned a fraudulent University, intent on scamming poor people, you thought "Fine."

    That when you saw a man who had made it his business practice to stiff his creditors, you said, "Okay."

    That when you heard him proudly brag about his own history of sexual abuse, you said, "No problem."

    That when he made up stories about seeing muslim-Americans in the thousands cheering the destruction of the World Trade Center, you said, "Not an issue."

    That when you saw him brag that he could shoot a man on Fifth Avenue and you wouldn't care, you chirped, "He sure knows me."

    That when you heard him illustrate his own character by telling that cute story about the elderly guest bleeding on the floor at his country club, the story about how he turned his back and how it was all an imposition on him, you said, "That's cool!"

    That when you saw him mock the disabled, you thought it was the funniest thing you ever saw.

    That when you heard him brag that he doesn't read books, you said, "Well, who has time?"

    That when the Central Park Five were compensated as innocent men convicted of a crime they didn't commit, and he angrily said that they should still be in prison, you said, "That makes sense."

    That when you heard him tell his supporters to beat up protesters and that he would hire attorneys, you thought, "Yes!"

    That when you heard him tell one rally to confiscate a man's coat before throwing him out into the freezing cold, you said, "What a great guy!"

    That you have watched the parade of neo-Nazis and white supremacists with whom he curries favor, while refusing to condemn outright Nazis, and you have said, "Thumbs up!"

    That you hear him unable to talk to foreign dignitaries without insulting their countries and demanding that they praise his electoral win, you said, "That's the way I want my President to be."

    That you have watched him remove expertise from all layers of government in favor of people who make money off of eliminating protections in the industries they're supposed to be regulating and you have said, "What a genius!"

    That you have heard him continue to profit from his businesses, in part by leveraging his position as President, to the point of overcharging the Secret Service for space in the properties he owns, and you have said, "That's smart!"
    That you have heard him say that it was difficult to help Puerto Rico because it was the middle of water and you have said, "That makes sense."

    That you have seen him start fights with every country from Canada to New Zealand while praising Russia and quote, "falling in love" with the dictator of North Korea, and you have said, "That's statesmanship!"

    That Trump separated children from their families and put them in cages, managed to lose track of 1500 kids. has opened a tent city incarceration camp in the desert in Texas - he explains that they’re just “animals” - and you say, “well, ok then.”

    That you have witnessed all the thousand and one other manifestations of corruption and low moral character and outright animalistic rudeness and contempt for you, the working American voter, and you still show up grinning and wearing your MAGA hats and threatening to beat up anybody who says otherwise.

    What you don't get, Trump supporters in 2019, is that succumbing to frustration and thinking of you as stupid may be wrong and unhelpful, but it's also...hear me...charitable.

    Because if you're NOT stupid, we must turn to other explanations, and most of them are less flattering."

Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here

Subscribe to the Techdirt Daily newsletter

Comment Options:

  • Use markdown. Use plain text.
  • Remember name/email/url (set a cookie)

Follow Techdirt
Special Affiliate Offer

Report this ad  |  Hide Techdirt ads
Essential Reading
Techdirt Deals
Report this ad  |  Hide Techdirt ads
Techdirt Insider Chat
Report this ad  |  Hide Techdirt ads
Recent Stories
Report this ad  |  Hide Techdirt ads

This site, like most other sites on the web, uses cookies. For more information, see our privacy policy. Got it

Email This

This feature is only available to registered users. Register or sign in to use it.