Freedom Watch, a conservative political interest organization, has once again failed in its effort to hold several social media platforms liable for allegedly suppressing conservative speech. The federal court of appeals for the D.C. Circuit agreed with the trial court that Freedom Watch simply couldn’t support its broad allegations with actual evidence.
Freedom Watch brought the suit against Google, Facebook, Twitter, and Apple 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. Like a batter going through a slump, Freedom Watch went 0 for 3. And technically, I suppose they went 0 for 6, considering they previously lost on those claims at the district court.
The First Amendment claim failed for a very basic reason. The platforms are private entities. Which means they aren’t subject to the First Amendment, which applies only to state action. Freedom Watch argued that because the platforms provide an important forum for speech, they are engaged in state action. But as the Court of Appeals noted, “a private entity who provides a forum for speech is not transformed by that fact alone into a state actor.” And Freedom Watch failed to point to additional facts indicating that the platforms are engaged in state action. That doomed the First Amendment claim.
The antitrust claim suffered a similar fate. Freedom Watch argued that the court could infer an agreement primarily from the platforms’ parallel behavior, as each company purportedly refused to provide certain services to Freedom Watch. But parallel conduct alone cannot support an antitrust claim. Freedom Watch argued that two other factors claims suggested conspiracy — the platforms are pursuing a revenue-losing strategy and they are motivated by political goals. But Freedom Watch didn’t explain why either factor tends to show an unlawful conspiracy, rather than lawful independent action by the different platforms. Once again, Freedom Watch failed to come up with evidence to support its overarching arguments.
Freedom Watch’s discrimination claim under the D.C. Human Rights Act was a closer call for the court. The Act prohibits discrimination on the basis of political affiliation in “any place of public accommodations.” The district court relied on a D.C. Court of Appeals case interpreting that statute, which held that only physical places within the District of Columbia qualify as “places of public accommodation.” Because Freedom Watch didn’t allege that the platforms operated out of a particular place in D.C., but only that they do business in the District, the district court dismissed the claim.
The court of appeals noted that when interpreting D.C. law, it strives “to achieve the same outcome we believe would result if the District of Columbia Court of Appeals considered this case.” In the federal appellate court’s view, the D.C. Court of Appeals’ interpretation was reasonable, and it had “no basis to believe it would reach a different conclusion on reconsideration.”
The court also declined to apply cases under the Americans with Disabilities Act, which had interpreted the concept of “public accommodations” broadly enough to include online services. The court noted that the federal appellate courts are split on that issue. It concluded that the D.C. courts are the ultimate arbiters of D.C. law. It decided not to change the status quo.
Freedom Watch’s next and last move here is to seek discretionary review from the U.S. Supreme Court. But given that the Supreme Court agrees to review less than 3% of the cases that apply for review, the odds are that this is the end of the line for Freedom Watch.
Jack Greiner is managing partner of Graydon law firm in Cincinnati. He represents Enquirer Media in First Amendment and media issues.