In Freedom Watch, Inc. et al., v. Google, Inc. et al, No. 1:18-cv-02030, 2019 WL 1201549 (D.C. Cir. 2019), Freedom Watch, Inc., a non-profit public interest organization (“Freedom Watch”) and Laura Lommer, a social media user (collectively, the “Plaintiffs”) brought an action in the United States District Court for the District of Columbia against Google, Inc., Facebook, Inc., Twitter, Inc., and Apple, Inc. (collectively, the  “Defendants”) alleging that Defendants worked together to intentionally and willfully suppress politically conservative content. The Defendants filed a motion to dismiss for lack of standing and for “failure to state a claim upon which relief can be granted.” The court granted the motion, stating that the Plaintiffs have failed to tie their concerns to colorable legal claims.  

Freedom Watch operates several accounts on the Defendants’ social media platforms through which it publishes and promotes media content, seeking to “inform the public about [its] conservative advocacy” and to raise funds to further its mission. Freedom Watch alleges that its “growth on these platforms has come to a complete halt, and its audience base and revenue generated has either plateaued or diminished.” 

Similarly, Ms. Loomer operates a Facebook account and until recently maintained a Twitter account with over 260,000 followers. Ms. Loomer is a self-proclaimed “conservative investigative journalist and political activist.” She uses her social media accounts to “reach her audience with her investigative work.” Ms. Loomer claims that she was first banned “permanently and without cause” from Twitter, Inc.’s platform and was then subsequently banned from Facebook, Inc.’s platform for 30-days after writing a post stating that Rep. Ilhan Omar (D-Minn.) favors Sharia law and is “anti-jewish.” Ms. Loomer asserts that because of the Defendants alleged conduct she “has and will continue to suffer severe financial injury.” 

First, the Plaintiffs allege that Defendants violated § 1 of the Sherman Act by entering into an illegal agreement to refuse to deal with conservative news and media outlets as well as to suppress media content and advocacy. The Plaintiffs also allege that the Defendants have violated § 2 of the Sherman Act by “willfully” engaging in “an exclusionary course of conduct” with a specific intent to monopolize and destroy effective competition in the relevant market for media and news publications.” Third, the Plaintiffs allege that Defendants’ platforms  are “public accommodations” and have violated the District of Columbia’s Human Rights Act by denying 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.” Lastly, the Plaintiffs allege that the Defendants are “quasi-state actors” that “create, operate, and control public platforms that are for public use and public benefit, thus violating the First Amendment by depriving the Plaintiffs of their “constitutional rights by censoring their content for purely political reasons.” 

The court ruled that the Plaintiffs have sufficiently alleged facts to support their standing by alleging plausible harm - the decrease in revenues - that is fairly traceable to the alleged conspiracy by Defendants. However, the court ultimately ruled that the Plaintiffs have failed to state viable legal claims for which relief can be sought. 

To sufficiently plead a claim under § 1 of the Sherman Act, the complaint must have “enough factual matter (taken as true) to suggest that an agreement was made.” The court held that the Plaintiffs failed to allege facts excluding the possibility that Defendants were acting alone because the Plaintiffs included no allegations that any of the Defendants met or otherwise communicated an intent to collectively suppress conservative content. 

Similarly, the court noted that for a claim under § 2 of the Sherman Act, “collective or ‘shared monopoly’” arguments are generally “insufficient to state a claim that defendants have monopolized or attempted to monopolize the relevant market” in violation of the law. The Court held that the Plaintiffs did not sufficiently allege facts such as market share data that showed that Defendants, in acting individually, monopolized or sought to monopolize any defined market. 

The Plaintiff’s discrimination claim did not fare any better. The D.C Human Rights Act defines a “place of public accommodation” as “all places included in the meaning of such terms as inns, taverns road houses, hotels, motels . . . restaurants, . . . wholesale and retail stores,’ and many other physical locations.” The Act continues to list over 50 specific examples of “public accommodations,” not one of which is an online or virtual platform. The court held that the Plaintiffs erroneously alleged that Defendants’ platforms qualified as public accommodations because courts have previously held that “public accommodations” under the ADA are limited to physical locations. 

Lastly, the court ruled that the Plaintiffs failed to allege a nexus between Defendants’ actions and any function traditionally reserved exclusively to the state.  Even though the Plaintiffs’ complaint focused on the Defendants’ alleged suppression of conservative political content and that “selective censorship of the kind alleged…may be antithetical to the American tradition of freedom of speech,” the court ultimately concluded that it is not actionable under the First Amendment unless perpetrated by a state actor.”

For these reasons, the United States District Court for the District of Columbia granted the Motion to Dismiss.