A lawsuit filed against Google, Twitter, Facebook and Apple by conservative journalist and activist Laura Loomer in conjunction with Freedom Watch, a conservative non-profit, was thrown out of the U.S. Court of Appeals in Washington today, the same day that President Trump threatened to take action against Twitter for their censorship of conservatives.
A three-judge panel upheld their decision to dismiss the suit filed by Loomer and Freedom Watch that claimed the companies were not only violating the First Amendment, but also breaking antitrust laws.
Quoting a decision made previously, the judges found that, “In general, the First Amendment ‘prohibits only governmental abridgment of speech.'”
March 14th, the court listened to final arguments that the four Big Tech companies conspired against Loomer and Freedom Watch to inflict severe financial loss upon both parties. Unfortunately, the DC judge found there was not sufficient evidence in the case to support the claims and granted the Platforms’ motion to dismiss.
The companies explained in a joint briefing, “Private property owners, no matter their social importance, are not the government and are not subject to the constitutional constraints that limit governmental regulation of speech.” The companies also said subjecting private companies to First Amendment requirements hurt efforts to police pornography and cyberbullying.
The decision reads that Freedom Watch was “unable to point to any actions by the Platforms that caused its alleged injury,” which the non-profit had argued could be measured in both reduced revenue and suppression of audience on the social media platforms.
Again, the judges found that social media platforms are not considered to be “state actors”, and thereby do not violate the First Amendment which. They also ruled that Freedom Watch’s second claim that the platforms conspired to suppress conservative content and with the goal of maintaining monopoly power was not proven in the case.
The district court also found that Freedom Watch’s discrimination claim under the D.C. Human Rights Act that prohibits discrimination on the basis of political affiliation in “any place of public accommodations” only applied to physical places within the District of Columbia, dismissing the claim altogether.
When Freedom Watch contested the court’s interpretation of “place of public accommodations” on appeal the court found under the D.C. Human Rights Act, the platforms would have to be operating from a “particular place”.
Larry Klayman, attorney for Loomer and Freedom Watch described the judges’ decision in the case as “poorly written” and “outrageous”.
“It looks like a very political decision, particularly one day after Trump said he was going to get his administration to break up the social media giants,” Klayman told Epoch Times.
Andrew Feinberg tweeted, “NEW: On the day @realDonaldTrump threatens @Twitter because they fact-checked one of his lie-filled tweets, the DC Circuit throws out Laura Loomer’s lawsuit against the company for “suppressing conservative speech” by banning her from their platform.”
This comes on the heels of tweets President Trump published against Twitter for the suppression of conservative accounts on the platform where he claimed, “Big action to follow!”
Raheem Kassam tweeted Thursday, “Honestly, the best thing @realDonaldTrump could do as revenge on Big Tech is endorsing Laura Loomer. She’s running in his home district. And she’s the most banned woman in America:”
Reclaim The Net published a draft they claim is “close to that which the President is expected to sign today,” which in addition to a review of “unfair or deceptive practices” by social media companies, will direct the modification of Section 230 by federal agencies.
Sen. Marco Rubio weighed in on the subject as well tweeting, “The law still protects social media companies like @Twitter because they are considered forums not publishers. But if they have now decided to exercise an editorial role like a publisher then they should no longer be shielded from liability & treated as publishers under the law.”
Twitter has constantly gone back and forth between whether or not the platform is a forum or acts as a publisher depending on how it suits their needs, with Sec. 230 being heavily debated.
In 2018, Sen. Josh Hawley (R-MO) tweeted, “Twitter recently banned a Marine vet & conservative pundit, Jesse Kelly, without explanation. This follows Twitter’s ban of Canadian feminist Megan Murphy for her speech. @jack told Congress Twitter doesn’t target political speech. Is that true?”
Hawley added in a subsequent tweet, “The new Congress needs to investigate and find out. Twitter is exempt from liability as a “publisher” because it is allegedly “a forum for a true diversity of political discourse.” That does not appear to be accurate.”
Howley’s comments were referencing Section 230 of the Communications Decency Act which clearly defines the following: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” It also states, “The Internet and other interactive computer services offer a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity.” Section 230 protects platforms like Twitter, Facebook and others from being held liable for allowing defamatory comments to remain on their site.
Raheem Kassam, co-host of The War Room discusses Twitter being a publisher, not a platform:
“Now that they are editorialising around @readDonaldTrump’s tweets, Twitter can no longer pretend it is a platform. It is a publisher.”
“My lawyer and I are confident of success going en banc to the full court. Today’s decision is clearly politically motivated, given the fact the DC Circuit’s ruling comes the same day President Trump said his justice department would take serious action against these same big tech giants I have sued for censoring conservatives. There’s no such thing as a coincidence. We are prepared to take this all the way to the Supreme Court,” Loomer responded to the decision in a statement.
In an interview following the ruling, Laura Loomer and Larry Klayman joined Jason Goodman with Crowdsource the Truth to discuss the DC Court decision.
Klayman discussed how Judge Trevor N. McFadden, who was appointed by President Trump dismissed the charges without allowing a jury hear the case and make a decision. He stressed that if the case moves forward, and discovery becomes available they would have the chance to show the agreements between these tech companies that would prove antitrust violations in way of parallel pricing, which falls under the Sherman Act.
When Loomer was asked how she felt about the ruling, she explained that they’re fighting companies that have endless amounts of resources and how the every state in the country has called for antitrust investigations into Big Tech companies.
“Well, I’m not very happy about the news from this morning, especially given the fact, as Larry mentioned we were promised an oral argument. We have been waiting for two years since we filed this lawsuit. If you recall, this lawsuit was filed in 2018 and now it’s 2020 and litigation takes a very long time, especially when it comes to these social media companies. What they do is, these social media companies, each of them will have four lawyers each show up. This is about Facebook, Twitter, Google and Apple and so they have unlimited amounts of money, unlimited amounts of resources to play these legal games and time really isn’t of the essence for them. Then this litigation gets held up in court and because of Coronavirus, we weren’t able to have our oral argument and I really do believe that this is a very compelling case. It’s something that has now consumed the national narrative. You have the president of the United States talking about how his administration is going to be pursuing antitrust legislation or antitrust litigation earlier in the year. You had all 50 states attorneys general, all 50, every single state in this country, the attorneys general, that’s a bipartisan effort calling for antitrust investigations into these same companies.”
Loomer told Goodman she was under the impression they would be able to have their oral arguments heard before a judge, but that many excuses were given as to why that needed to be postponed, before being canceled altogether.
In 2018, when people were still calling this a “right-wing conspiracy theory” and saying that there was no such thing as censorship of conservatives we filed the first antitrust case against these Big Tech giants. So, I find it to be rather suspicious that after we were told that we were going to have an oral argument, and then we were told that it has been postponed because of Corona, then it could be over the telephone, and now just canceled, I think the timing of this is very suspicious. And a lot of people, even leftist reporters today were saying hmm..interesting timing how the same day that President Trump tweets that he’s going to take serious action against Twitter and these companies, who of course,we took the first step to sue, and then, as you mentioned, it was leaked out last week that Attorney General Barr was going to be pursuing an antitrust investigation as well, I don’t believe in coincidences.”
Also, I’m not a lawyer but given what Larry told me this morning about the decision – it was just very brief, it was very sloppy, it didn’t look like there was much effort put into it, and then there was this very passive aggressive remark from the judge, I’m sure Larry can elaborate on this too, that said that the claims made in the case weren’t worthy of a response. As if this is not important enough for a response,” Loomer said.
Regarding the judge ruling on the case, Loomer said Trump-appointed judges going against the wishes of the president’s administration seems off.
“It’s concerning that this guy, Trevor McFadden is his name – is a Trump appointed judge because you assume that the Trump administration, as they have expressed their desire to get ahold of these Big Tech social media companies to prevent election interference and prevent the censorship of conservatives. That’s the reason why presidents appoint judges. You appoint judges during your presidency so that you can have judges who are actually going to uphold the Constitution and hopefully rule in a way that is favorable to what your administration is promoting. Right? It seems really counterintuitive that a Trump-appointed judge would be ruling against what even the President of the United States and his own administration is now proposing.”
Loomer continued, “Without making a broad statement about this case in particular, I would say that there is a lot of judicial corruption in our country. It’s going to be really hard to take action against these companies and to ensure the sanctity and the protection of our Constitution and to ensure that we have fair and free elections in this nation if even these so called conservative judges are going to kowtow to the radical left.”
Klayman explained that some of these Trump-appointed judges are Republican by name only.
“These judges are not really conservative. They were put up to President Trump by the Federal Society and former White House Council Don McGannon, people like that. There are special interests who wanted them put on the bench. They’re Republican RINOS. They’re afraid of their shadows. They’re yes men, that’s how they got where they got.”
As for the actual arguments, Loomer said that some of the judges on these Big Tech cases are older and are not familiar with technology or the levels of censorship on social media since they rarely, if at all, use social media platforms themselves.
“Another issue that’s at hand with these cases is that there really isn’t any legal precedence established right now in what you could say is our modern day digital world. A lot of these judges who have taken these cases are, older, right, they’re older. Let’s just say it like it is, they’re older,” Loomer said. “So for some of these people, they don’t really use social media and don’t know how social media works. They’re not familiar with all the different techniques and technological ways these companies are censoring and committing election interference and using algorithms to subvert and interfere with conservative speech online.”
“This is the same thing we saw during the Congressional hearing that I disrupted in 2018 when I confronted Jack Dorsey for committing perjury in Congress. There was a report that actually came out during the hearing where you had the House Energy Commerce Committee conducting this hearing and one of the members of the House Energy Commerce Committee doesn’t use a SmartPhone, he still uses a typewriter. So how can you adequately question Dorsey, and Zuckerberg, and Sundar Pichai and Sheryl Sandberg about all of these very complex technological forms of communication and forms of censorship and outright tyranny, right? It’s being implemented on a global scale. How can you effectively question these executives under oath in Congress if you don’t even know how use social media. I would to know how many members of Congress who were serving on that hearing that day during those Congressional hearings on social media bias, how many of them actually post on social media themselves because a lot of people in Congress, they have aides who do that for them. They have people who post for them,” Loomer explained.
Laura continued, “The problem here is a lack of understanding. Just to relate it to another case of mine in which I was represented by Ron Coleman, this is a case that Larry isn’t representing me in. It’s my other lawsuit that was filed against CAIR, the Council on American-Islamic Relations and Twitter for tortuous interference because it was later found out when I was banned from Twitter that CAIR, a terrorist organization had privately lobbied Twitter to ban me because I exposed Ilhan Omar, who they of course have a financial interest in because they endorsed her and heavily sponsored and backed her campaign. The judge said that it was nonsensical and then he dismissed my lawsuit in Florida because he said that it was nonsensical to say that you can have a business relationship with Twitter. Well, if it’s nonsensical to say that you can have a business relationship with these social media sites why do they allow you to have business accounts? They wouldn’t allow you to have advertising and business accounts if you couldn’t have business relationships. There’s entire businesses in the world that are now digital. We’re seeing it with Coronavirus. We’re seeing this switch to virtual communication and a dependency on social media and communication via the internet. So, again, it’s a lack of understanding. It’s a lack of knowledge. I would also say that it’s also incompetence and really, really sinister partisan agendas at play.”
Loomer also mentioned the media blackout on top media outlets who claim to be right-leaning.
“Not only are we dealing with the censorship of these Big Tech social media companies that are committing election interference, trying to steal elections for Democrats and they’re silencing American patriots and conservatives who are posting facts while allowing for terrorist organizations and radical leftists to post vile filth and acts of violence online, but then you have the censorship and the media control, and the blacklisting at these “so-called” media organizations like Fox News that bills itself as a news organization for Republicans. They have their own blacklist at Fox News. Larry Klayman and I have sent out letters to the president of Fox, Suzanne Scott. How many emails did we send out Larry, to all the hosts at Fox News and you said, my client Laura Loomer would like to come on to talk about these lawsuits, the ignore. Not only do they ignore but they tell their hosts that we are not allowed to come on because they implement a blacklist. Then it gets worse than that, because while they blacklist us and they prevent us from going on they then entertain these bloviations every single night where they talk about how enraged they are about tech censorship, while they don’t even invite anybody on who’s been deplatformed.”
Loomer explained that the lack of support from the Republican party while pretending to care about the First Amendment is getting old.
“I for one am not only tired of the hypocrisy and the cancel culture and the deplatforming taking place by this collusion, this very direct collusion between the Democrat Party and the Communists in Silicon Valley but also the complicit and completely dismissive and passive nature of these so-called Republicans who make millions of dollars every single night pretending that they care about free speech, that they care about censorship, while they turn a blind eye to people who are fighting back. It’s unacceptable.”
Laura Loomer is standing up for the rights of all Americans. This will not end here, we’ve already seen them systematically remove different voices from the platform that they don’t agree with.
Loomer’s landmark suit and decision to take this all the way to the Supreme Court sets a precedent for the digital public square. Twitter cannot continue to operate under the laws of a platform while also acting as a publisher.
“First they came for the Communists
And I did not speak out
Because I was not a Communist
Then they came for the Socialists
And I did not speak out
Because I was not a Socialist
Then they came for the trade unionists
And I did not speak out
Because I was not a trade unionist
Then they came for the Jews
And I did not speak out
Because I was not a Jew
Then they came for me
And there was no one left
To speak out for me” – Martin Niemöller