Freedom Watch, Inc. v. Google, Inc.

368 F.Supp.3d 30

FREEDOM WATCH, INC. et al., Plaintiffs,

v.GOOGLE, INC. et al., Defendants.

Case No. 1:18-cv-02030 (TNM)

United States District Court, District of Columbia.

Signed March 14, 2019

Larry E. Klayman, Klayman Law Group, P.A., Washington, DC, for Plaintiffs.

John E. Schmidtlein, Thomas Goodman Hentoff, Williams & Connolly LLP, Kannon K. Shanmugam, Paul, Weiss, Rifkind, Wharton & Garrison LLP, Washington, DC, for Defendant Google Inc.

Craig S. Primis, Kenneth Winn Allen, Mary Elizabeth Miller, Kirkland & Ellis LLP, Washington, DC, for Defendant Facebook Inc.

Brian M. Willen, Jonathan M. Jacobson, Wilson Sonsini Goodrich & Rosati, PC, New York, NY, for Defendant Twitter, Inc.

James Adam Kraehenbuehl, Joshua P. Riley, William A. Isaacson, Boies Schiller Flexner LLP, Michael J. Gottlieb, Willkie Farr & Gallagher, LLP, Washington, DC, for Defendant Apple Inc.

MEMORANDUM OPINION

TREVOR N. McFADDEN, U.S.D.J.

This case is brought by conservative activists who allege that America's major technology firms have conspired to suppress their political views. The Plaintiffs raise non-trivial concerns. But because they have failed to tie these concerns to colorable legal claims, the Court must dismiss their Amended Complaint.

I.

Freedom Watch and Laura Loomer accuse Google, Facebook, Twitter, and Apple (collectively, the "Platforms") of working together to "intentionally and willfully suppress politically conservative content." Am. Compl. 4. Freedom Watch describes itself as a "conservative non-profit public interest organization." Am. Compl. 11. It operates YouTube,¹ Facebook, Twitter, and Apple accounts through which it publishes and promotes media content. Id. This content seeks to "inform the public about [Freedom Watch's] conservative advocacy" and to raise funds to further its mission. Id.

Freedom Watch "experienced steady growth in both audience and revenue generated through these platforms for many years." Id. at 12. This changed, the organization suggests, following the "suppression of conservative content," which "grew more pronounced and severe ... after the election of President Donald J. Trump." Id. Freedom Watch alleges that its "growth on these platforms has [since] come to a complete halt, and its audience base and revenue generated has either plateaued or diminished."Id.

Like Freedom Watch, Ms. Loomer has a Facebook account. Id. at 16. Until recently, she also maintained a Twitter account with over 260,000 followers. Id. at 14. She describes herself as a "conservative investigative journalist and political activist," id. at 13, and she uses her social media accounts to "reach[ ] her audience with her investigative work." Id. at 16. Ms. Loomer claims that Twitter banned her "permanently and without cause" after she posted a tweet about Congresswoman Ilhan Omar, a Democrat. Id. at 14. After this tweet, "Facebook subsequently banned [her] for 30 days." Id. Because of these alleged actions, Ms. Loomer "has and will continue to suffer severe financial injury." Id. at 16.

The Plaintiffs believe that the Platforms' conduct violates several laws. First, they argue that the Platforms "have entered into an illegal agreement to refuse to deal with conservative news and media outlets ... as well as to suppress media content and advocacy." Id. at 17. This purported agreement is "evidenced by the fact that Freedom Watch began losing users on each of Defendants['] platforms at or around the same time." Id. And because it has "no legitimate business justification and is plainly anticompetitive," id. , the agreement violates § 1 of the Sherman Act. Id. at 20-21.

Second, the Plaintiffs contend that the Platforms have also violated § 2 of the Sherman Act. Id. at 22. They have done so by "willfully" engaging in "an exclusionary course of conduct" with a "specific intent to monopolize, and to destroy effective competition in the relevant market for media and news publications." Id.

Third, the Platforms have allegedly violated the District of Columbia's Human Rights Act. Id. at 23. The Plaintiffs suggest that the Platforms have denied them "the full and equal enjoyment of the services, privileges, and advantages that they provide to persons which they perceive to not be affiliated with the Republican Party or of Jewish faith." Id. Political affiliation and religious beliefs are both traits protected by the Act, which prohibits discrimination on these bases at places of public accommodation. See D.C. Code § 2-1402.31. Arguing that the Platforms are "public accommodations," the Plaintiffs contend that the Act covers the alleged discrimination they faced. Am. Compl. 23.

Finally, the Plaintiffs assert that the Platforms have deprived them of their "constitutional rights by censoring [their] content for purely political reasons." Id. at 24. This censorship, they assert, violates the First Amendment because the Platforms are "quasi-state actors" that "create[ ], operate, and control public platforms that are for public use and public benefit." Id.

The Platforms have moved to dismiss these claims. They argue that the Plaintiffs lack standing to sue them. Defs.' Mot. to Dismiss Am. Compl. ("Defs.' Mot.") at 4, ECF No. 29. They also argue that the Plaintiffs have failed to state legally cognizable claims. Id. at 8. They believe that they are not subject to the First Amendment or the District's Human Rights Act, as they are neither state actors nor public accommodations. Id. at 8, 17. And they contend that the Plaintiffs have failed to allege sufficiently the existence of any agreement or unilateral actions that violate the Sherman Act. Id. at 12-16.²

II.

Whether the Plaintiffs have standing to sue is a "threshold jurisdictional question." Steel Co. v. Citizens for a Better Env't , 523 U.S. 83, 102, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). Article III of the U.S. Constitution limits this Court's jurisdiction to "actual cases or controversies." Clapper v. Amnesty Int'l USA , 568 U.S. 398, 408, 133 S.Ct. 1138, 185 L.Ed.2d 264 (2013). "No principle is more fundamental to the judiciary's proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies," and the "concept of standing is part of this limitation." Simon v. E. Ky. Welfare Rights Org. , 426 U.S. 26, 37, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976) (citation omitted).

To show standing, the Plaintiffs bear the burden of alleging an injury that is "concrete, particularized, and actual or imminent; fairly traceable to the challenged action; and redressable by a favorable ruling." Clapper , 568 U.S. at 409, 133 S.Ct. 1138. Facing a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1), they "must clearly allege facts demonstrating each element." Spokeo, Inc. v. Robins , ––– U.S. ––––, 136 S.Ct. 1540, 1547, 194 L.Ed.2d 635 (2016) (cleaned up). The Court will "draw all reasonable inferences from [the Plaintiffs'] allegations in [their] favor," but it may not "accept inferences that are unsupported by the facts," "assume the truth of legal conclusions," or credit "threadbare recitals of the elements of standing." Arpaio v. Obama , 797 F.3d 11, 19 (D.C. Cir. 2015).

The Platforms also seek dismissal for a "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). A valid complaint must contain factual allegations that, if true, "state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Mere "labels and conclusions" or "naked assertion[s] devoid of further factual enhancement" are insufficient. Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quotations omitted). Rather, "[a] claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.

In evaluating a motion to dismiss, the Court must construe the complaint in the light most favorable to the Plaintiffs and accept as true all reasonable factual inferences drawn from well-pleaded allegations. In re United Mine Workers of Am. Emp. Benefit Plans Litig. , 854 F.Supp. 914, 915 (D.D.C. 1994). The Court need not, however, accept legal conclusions or mere conclusory statements as true. Iqbal , 556 U.S. at 678, 129 S.Ct. 1937. Evaluating a motion to dismiss is a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 679, 129 S.Ct. 1937.

III.

A.

The Plaintiffs have sufficiently alleged facts supporting their standing. To begin with, the Platforms do not contest Ms. Loomer's standing to sue Facebook and Twitter. See Defs.' Mot. at 8; Defs.' Reply in Supp. of Mot. to Dismiss ("Defs.' Rep.") at 4, ECF No. 41 (arguing only that Ms. Loomer lacks standing against Google and Apple). Because Ms. Loomer has standing against Facebook and Twitter, the Court assumes for these purposes that Judicial Watch does too. See Horne v. Flores , 557 U.S. 433, 446, 129 S.Ct. 2579, 174 L.Ed.2d 406 (2009) (noting that because one plaintiff "clearly has standing" to sue, the Court "need not consider whether the [other plaintiffs] also have standing to do so").

As to Apple and Google, the Plaintiffs have met their burden of establishing standing at this initial stage. This burden "grows heavier at each stage of the litigation," and, at the pleading stage, "general factual allegations of injury resulting from the defendant's conduct may suffice." Osborn v. Visa Inc. , 797 F.3d 1057, 1064 (D.C. Cir. 2015). In the Amended Complaint, Freedom Watch alleges that the growth of its audience and revenues generated from the Platforms' platforms have "come to a complete halt." Am. Compl. 12. It states that the cause of this decline is the conspiracy to suppress their content, and that "each and every one of" the Platforms has participated in this conspiracy. Id. And it asserts, for example, that...