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.

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

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  1. icon
    TheLizard (profile), 18 Mar 2019 @ 12:02pm


    How about, follow the US jurisprudence for free speech. That's what Jack Dorsey claims he wants Twitter to be, a place where everyone has a platform.

    Threats of violence, doxing, other unprotected speech can be banned, just like it is everywhere else.

    But people should be allowed to post "Learn to Code" memes without running afoul of Twitter's "Trust and Safety" department because they want to have safe space for so-called journalists.

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