Federal court dismisses conservative organization’s lawsuit against social media and tech companies

On May 27, 2020, the U.S. Court of Appeals for the District of Columbia Circuit rejected a lawsuit from Freedom Watch, a conservative legal organization, that claimed Apple, Facebook, Google, and Twitter attempted to suppress politically conservative content. This decision affirmed a 2019 opinion from the U.S. District Court for the District of Columbia that dismissed the lawsuit.

Key Players

Freedom Watch is a legal organization founded and led by Larry Klayman, a former Department of Justice prosecutor with a reputation for aggressive legal tactics, described by The Washington Post as a “notably combative litigant.” In 1994, Klayman founded the activist law firm Judicial Watch, which has primarily targeted Democrats and whose strategy has been to “carpet-bomb the federal courts with Freedom of Information Act lawsuits,” according to The New York Times. Klayman left Judicial Watch in 2003 for an unsuccessful U.S. Senate run in Florida, after which he created Freedom Watch in 2004 as a successor to his former organization.

Laura Loomer is a far-right activist who was permanently banned from Twitter in 2017 after going on an Islamophobic rant against U.S. Rep. Ilhan Omar, a Democrat from Minnesota. Loomer served as a plaintiff in the lawsuit with Freedom Watch.

Further Details

Conservative complaints about the supposed left-leaning ideology of many technology and social media companies are not a new phenomenon; the Columbia Journalism Review describes these perceived biases as a conspiracy theory that has cropped up since at least 2016, about which the House Judiciary Committee held a three-hour hearing in 2018.

On Aug. 29, 2018, Freedom Watch filed a lawsuit against Apple, Facebook, Google, and Twitter, alleging that the companies intentionally suppressed politically conservative content on their platforms in concert with CNN, MSNBC, The New York Times, and The Washington Post in order to bring down President Donald Trump and install a leftist government. Freedom Watch argued that this collusion violated the Sherman Antitrust Act, the D.C. Human Rights Act, and the First Amendment, and it demanded a jury trial.

On March 14, 2019, U.S. District Court Judge Trevor N. McFadden rejected Freedom Watch and Loomer’s arguments and dismissed the lawsuit. In his opinion, he rejected the plaintiffs’ claim that social media companies approximate quasi-state actors because they regulate public platforms. He further noted that the First Amendment only protects Free Speech against abridgement by the government, not by private entities.

On Dec. 5, 2019, Freedom Watch and Loomer filed an appeal, again alleging that the companies colluded to censor conservative content. Their brief cites Loomer’s permanent ban from Twitter after she tweeted that Rep. Omar was anti-Semitic and claimed that Islam oppresses gay people and abuses women by forcing them to wear a hijab. 

The defendant companies filed a brief on Jan. 31, 2020, that found fault with Freedom Watch and Loomer’s conception of the First Amendment, arguing that their right to regulation of content that appears on their platforms is essential. They also noted that the First Amendment protects rather than limits their right to editorial judgment, but if they were state actors, they would not have this privilege.

Outcome

Appeals court unanimously affirms case’s dismissal

On May 27, 2020, a three-judge panel of the U.S. Court of Appeals for D.C. unanimously affirmed the case’s dismissal. The judges echoed McFadden’s conclusion that Freedom Watch and Loomer failed to establish a violation of their First Amendment rights because Apple, Facebook, Google, and Twitter are not state platforms. Their claims regarding violations of the D.C. Human Rights Act and the Sherman Antitrust Act were also deemed deficient.

This high-profile case reaffirmed social media companies’ right to remove undesirable content from their platforms, and the appeals court decision may have rendered future challenges to these rights more unlikely to be accepted. On May 28, 2020, Trump signed an executive order targeting Section 230 of the 1996 Communications Decency Act, which prohibits people from suing tech companies based on what users post on their platforms. Trump’s order holds that an online platform should be classified as a publisher rather than a neutral actor if it restricts access to some content. Trump ordered the Federal Communications Commission to develop regulations, but it is an independent agency beyond his official control. 

Klayman petitions appeals court to rehear the case en banc

On July 6, Klayman filed a petition with the U.S. Court of Appeals for D.C. to rehear the case en banc, meaning that all 11 judges on the court would review the case rather than accept the decision by a panel of only three. The petition argues that because there are questions of “exceptional importance” at stake, the case must be reheard en banc via oral argument over Zoom or Skype.