Court Sinks Suit by Right-Wing Activists Against Social Media

(AP Photo/Matt Rourke, File)

WASHINGTON (CN) — The D.C. Circuit refused Wednesday to revive claims from a right-wing activist and a conservative legal group that tech companies have conspired to suppress conservative viewpoints.

The unsigned 4-page judgment issued Wednesday affirms last year’s dismissal of a 2018 First Amendment and antitrust lawsuit from Freedom Watch and far-right activist Laura Loomer against Twitter, Apple, Facebook and Google.

Loomer and Freedom Watch, which was founded by conservative legal activist Larry Klayman, said in their class action that the companies “engaged in a conspiracy to intentionally and willfully suppress politically conservative content.”

The D.C. Circuit neatly dispatched the lawsuit on Wednesday, saying Freedom Watch and Loomer have not shown the platforms are able to violate the First Amendment, which generally covers only government restrictions on speech. The antitrust claims also failed because they have not shown evidence of a conspiracy between the tech giants, according to the order from the three-judge panel.

The judgment comes a day after Twitter’s fact-checking of one of President Donald Trump’s tweets spurred him to say the platform was “completely stifling free speech.” After threatening to “strongly regulate” social media companies, Trump is expected to sign an executive order related to the cause on Thursday, though what the order will do is not yet clear.

Loomer, who is running for Congress in Florida, was banned from Twitter in November 2018 and from Facebook in May 2019 and has engaged in public protests against the companies claiming her views have been suppressed.

In a 26-page brief urging the D.C. Circuit to overturn U.S. District Judge Trevor McFadden’s dismissal of the case, Freedom Watch and Loomer argued social media companies are now so ubiquitous that they have become “quasi-state actors.”

“In a shockingly short period of time, social media has evolved to the primary driver of culture and society that every individual, including the honorable judges on this panel, carry on their mobile phones everywhere they go,” the brief states. “This just goes to demonstrate the fact that the law needs to evolve to keep up with technology.”

They also told the court their antitrust claims should have survived at least until discovery and that McFadden ignored evidence that the companies have monopolized their markets.

The companies argued meanwhile that dismissal was appropriate because Freedom Watch and Loomer lack standing to carry the lawsuit and had not given “any factual matter whatsoever supporting” their claims of a conspiracy.

As for the First Amendment allegations, the companies said the lower court was right to find they are not state actors. They also argued Freedom Watch and Loomer’s vision of the First Amendment would have sweeping harmful impacts, making impossible “all manner of valuable content-regulation” the platforms employ.

“It would call into constitutional question the actions that such providers routinely take to restrict access to or remove broad swaths of objectionable content, from pornography to hateful and abusive cyber-bullying,” the companies’ brief states. “And it would invert the relevant constitutional protections, as the First Amendment has long been understood to protect ­— not limit — the editorial judgments of private parties who provide forums for speech, including online services.”

Klayman did not return a request for comment sent after business hours on Wednesday.

Facebook declined to comment on the ruling, while the other tech companies did not immediately return requests for comment.

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