Case Summary and Outcome

The United States Court of Appeals for the District of Columbia dismissed Freedom Watch’s appeal against the District Court’s decision which had dismissed its complaint alleging violation of the First Amendment, the Sherman Antitrust Act and the District of Columbia Human Rights Act. Freedom Watch had brought a complaint against major technology firms arguing that Google, Facebook, Twitter and Apple intentionally and willfully conspired to suppress politically conservative content which resulted in a dramatic loss of its viewership and user engagement. The Appellate Court held that Freedom Watch’s claim concerning the defendants’ anti-competitive conduct was invalid as no agreement occurred between the platforms, the defendants were not ‘public accommodations’ within the ambit of DC’s anti-discrimination laws, and that the defendants were not quasi-state actors capable of being sued for First Amendment violations for suppression of speech. The Court noted that general allegations of conspiracy to suppress speech without concrete facts was insufficient to warrant a judgment in favour of the appellants’.

On July 6, 2020 Freedom Watch applied to have the case heard en banc arguing that that because there are questions of “exceptional importance” at stake, the case must be reheard by all 11 judges, rather than a panel of just three, and via oral argument over Zoom or Skype. On August 5, 2020 United States Court of Appeals for the District of Columbia Circuit denied the petition for rehearing en banc and dismissed as moot the request for oral argument.

Facts

Freedom Watch, a 501(c)(3) organisation, is a group of activists which describes itself as a ‘conservative non-profit organisation’. Along with Laura Loomer (a citizen of Florida and a conservative political activist), Freedom Watch brought a suit against Google, Facebook, Twitter and Apple (collectively, ‘Defendants’) alleging that the platforms acted in concert to conspire and suppress politically conservative content which inhibited expression, led to severe financial loss and violated the First Amendment rights of the appellant.

The appellant operated an account on each of the aforementioned platforms, paying for the defendants’ services to promote and advertise media content and advocate as well as raise funds for their conservative ideas. Post Donald Trump’s election, Freedom Watch alleged that the defendants had begun a conspiracy to intentionally and wilfully suppress conservative content in a concerted effort. Their claim was based on the ground that the number of their subscribers as well as their revenue after years of steady growth had started declining since the alleged suppression of conservative content began, causing them injury in the form of suppression of speech and ideas of their conservative public interest advocacy. To substantiate their allegations, Freedom Watch also cited several studies, news reports and articles which evidenced the defendants’ intention to ‘recraft’ the nation into its leftist design and precluded users from seeing news and stories in their interest if they happened to lean conservatively. Among others, a few instances of political censorship put forward by the appellant included attempts by Google to demonetise videos from conservatives while leaving similar videos up for members of the left (on YouTube), the exclusion of conservative leaning websites on Google’s first page search results, routine suppression by Facebook’s news curators of Republican-oriented news stories, and ‘shadow-banning’ of right-wing accounts by Twitter for political purposes.

Since Freedom Watch also created audio and visual content which was distributed domestically and globally, it claimed that it was a competitor of the defendants’ platforms. By adopting strategies such as ‘conscious parallelism’ (mimicking other platforms’ refusal to deal with Freedom Watch) and revenue loss from right-wing conservative organisations without any legitimate business justification, Freedom Watch claimed that the defendants had engaged in anti-competitive conduct in violation of the Sherman Act (section 1 and 2). Finally, it was also argued by the appellant that it qualified as a ‘place of public accommodation’ under the District of Columbia Human Rights Act (DCHRA). Since DCHRA makes discrimination illegal for people that live, visit or work in District of Columbia, they reasoned that the defendants denied them ‘full and equal enjoyment of services’ that they otherwise provided to people not affiliated with conservative ideology.

With respect to Ms. Loomer (who happens to be Jewish), she contested that Twitter and Facebook had banned her account for posting against anti-Semitic comments by Rep. Ilhan Omar as well as against Sharia law, showcasing discriminatory intent and restraint of trade against those who share conservative beliefs and those of Jewish origin.

In response, the defendants moved to dismiss the aforementioned claims arguing that the appellants lacked standing, failed to state legally recognisable claims and made invalid arguments under the Sherman Act and the DCHRA. A District Court judgment dated March 14, 2019 dismissed the complaint and held that the appellants had failed to allege legally colorable claims.

Subsequently, Freedom Watch filed an appeal against the decision of the District Court, arguing that the court had erred in (a) dismissing Sherman Act claims, (b) incorrectly holding that Freedom Watch was not a ‘public accommodation’ for purposes of DCHRA and (c) deciding that platforms were not quasi-state actors capable of being sued for First Amendment violations.

Decision Overview

Judges Rogers and Griffith of the Court of Appeals for the District of Columbia considered the case, deciding on the principal issue of whether Freedom Watch had sufficient standing with respect to its claims against the platforms on grounds of violation of the First Amendment, the Sherman Act and the DCHRA.

§ 1 of the Sherman Act restricts a conscious and collusive agreement/action in restraint of trade, and § 2 makes it illegal for an entity to monopolise or conspire to monopolise any part of trade or commerce. The DCHRA (on which the appellants’ discrimination claim was based) makes it unlawful to ‘deny, directly or indirectly, any person the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodations” because of the person’s political affiliation or religion.

The District Court, in consideration of issues concerning the Sherman Act, had noted previously that the appellants’ claim under § 1 was invalid as it failed to show plausibly that the platforms engaged in any strategy of conscious parallelism or revenue loss. Moreover, there was no evidence (either direct or circumstantial) for conspiracy or illegal agreement in consonance with other platforms. The appellants arguments under § 2 (that the defendants had collectively obtained monopoly power through exclusionary conduct in the relevant market) were also dismissed by the Court, primarily because shared monopoly claims without evidence of the platforms conspiring to acquire monopoly power was considered insufficient under law to prove such a violation. Notably, the Appellate Court agreed with the lower court’s reasoning, holding that Freedom Watch failed to showcase how either a revenue losing or parallel conduct strategy explained unlawful conspiracy.

With respect to the appellants’ discrimination claim under DCHRA, the District Court had dismissed the argument by concluding that only physical places were qualified to be referred as ‘places of public accommodation’ (per the judgment in U.S. Jaycees v. Bloomfield, 1981). Freedom Watch contested this interpretation before the Appellate Court. By relying on the District of Columbia’s amicus brief which argued that Jaycees was not binding on account of being a decision on a preliminary injunction rather than on merits, Freedom Watch claimed that the defendants qualified as such places and thus, were violative of the DCHRA. This ground was also sacked by the Appellate Court which deemed the application of Jaycees as a fit one and its interpretation of ‘places of public accommodation’ being physical spaces as a reasonable qualification. It also rejected the appellants’ request to interpret the DCHRA in line with the Americans with Disabilities Act (whose ambit has been held to expand beyond physical spaces as well) due to inconsistencies in judicial decision-making by federal courts.

Finally, in response to Freedom Watch’s First Amendment argument that the defendants infringed upon speech as quasi-state actors, the Appellate Court resolved that the First Amendment prohibited only governmental abridgment of speech, in which the defendants were ineligible to engage being private actors. While the appellants had argued before the District Court that the defendants acquired the status of quasi-state actors by regulating free speech within their public forums, both the lower and the Appellate Court found no nexus between the State and the challenged actions of the platforms. Since it was not sufficiently established by the appellants that the defendants’ conduct was capable of being treated as actions of the government itself, a viable First Amendment claim was not possible in the case simply because the platforms provided an important forum of speech.

Based on the aforementioned reasons, the Court affirmed the decision of the District Court and dismissed Freedom Watch and Laura Loomer’s appeal.