Freedom Watch, Inc. v. Google, Inc.
368 F. Supp. 3d 30
D.C. Cir.2019Background
- Plaintiffs Freedom Watch and Laura Loomer are conservative content producers who allege major tech platforms (Google/YouTube, Facebook, Twitter, Apple) conspired to suppress conservative speech, causing lost audience and revenue.
- Loomer alleges account suspensions/bans by Twitter and temporary bans by Facebook after political posts; Freedom Watch alleges stagnating/declining subscribers and revenue across platforms.
- Plaintiffs asserted claims under: Sherman Act §1 (concerted refusal to deal), Sherman Act §2 (monopolization/attempted monopolization), D.C. Human Rights Act (discrimination by public accommodation based on political affiliation/religion), and the First Amendment (state action / state actor theory).
- Defendants moved to dismiss for lack of standing and failure to state claims, contending no conspiratorial agreement, no state action, and that platforms are not D.C. public accommodations.
- The court found Plaintiffs had standing at the pleading stage but dismissed all substantive claims for failure to state viable legal causes of action.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sherman Act §1 (conspiracy) | Platforms entered an agreement to suppress conservative content shown by parallel declines in reach/revenue | Allegations are conclusory; no facts of meetings, communications, or agreement; parallel conduct alone insufficient | Dismissed: complaint fails to plead factual basis for an agreement (Twombly standard) |
| Sherman Act §2 (monopolization) | Platforms collectively or singly monopolize markets for media/news and engaged in exclusionary conduct | Shared-monopoly allegations insufficient; no market-share or market-definition facts showing single-firm monopoly | Dismissed: no plausible §2 claim; shared-monopoly theory inadequate |
| D.C. Human Rights Act (public accommodation) | Platforms are public accommodations and discriminated based on political affiliation/religion | D.C. statute’s list and precedent limit public accommodations to physical places; online platforms not covered | Dismissed: platforms are not ‘‘places of public accommodation’’ under D.C. law |
| First Amendment (state action) | Platforms are quasi-state actors controlling public forums, so censoring them violates the First Amendment | Platforms are private actors; no close nexus to government or state delegation of traditional state function | Dismissed: Plaintiffs failed to plead state action necessary for a First Amendment claim |
Key Cases Cited
- Steel Co. v. Citizens for a Better Env't, 523 U.S. 83 (standing is a threshold jurisdictional requirement)
- Clapper v. Amnesty Int'l USA, 568 U.S. 398 (standing requires injury traceable to defendant and redressability)
- Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (plaintiff must plead concrete and particularized injury for standing)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (antitrust conspiracy pleadings require facts suggesting agreement)
- Ashcroft v. Iqbal, 556 U.S. 662 (court need not accept legal conclusions; plausibility standard)
- Monsanto Co. v. Spray-Rite Serv. Corp., 465 U.S. 752 (§1 requires conscious commitment to a common scheme)
- Jackson v. Metro. Edison Co., 419 U.S. 345 (state-action standard: sufficiently close nexus required)
- Hudgens v. NLRB, 424 U.S. 507 (First Amendment restricts government action, not private conduct)
- Packingham v. North Carolina, 137 S. Ct. 1730 (recognition that social media are important forums, but case involved state law restriction)
- Halleck v. Manhattan Cmty. Access Corp., 882 F.3d 300 (private operators of public access channels may act as state actors when designated to perform governmental/public-forum functions)