Presidential Candidate Tulsi Gabbard Sues Google, Using All The Same Debunked Legal Theories Others Have Tried

from the best-of-luck dept

Well, here's an odd one: the Presidential campaign for Tulsi Gabbard is now suing Google claiming, among other things, that the company has "violated her First Amendment rights" by temporarily shutting down her advertising account and also funneling some of her campaign emails to spam in Gmail. This lawsuit is a complete non-starter, and makes use of the same debunked legal theories that others have used against social media companies. First, it argues that closing her Google advertising account was obviously because people at Google didn't want her message getting out after the first Democratic Presidential debates.

On June 28, 2019—at the height of Gabbard’s popularity among Internet searchers in the immediate hours after the debate ended, and in the thick of the critical post-debate period (when television viewers, radio listeners, newspaper readers, and millions of other Americans are discussing and searching for presidential candidates), Google suspended Tulsi’s Google Ads account without warning. For hours, as millions of Americans searched Google for information about Tulsi, and as Tulsi was trying, through Google, to speak to them, her Google Ads account was arbitrarily and forcibly taken offline. Throughout this period, the Campaign worked frantically to gather more information about the suspension; to get through to someone at Google who could get the Account back online; and to understand and remedy the restraint that had been placed on Tulsi’s speech—at precisely the moment when everyone wanted to hear from her. In response, the Campaign got opacity and an inconsistent series of answers from Google. First, Google claimed that the Account was suspended because it somehow violated Google’s terms of service. (It didn’t.) Later, Google changed its story. Then it changed its story again. Eventually, after several hours of bizarre and conflicting explanations while the suspension dragged on, Google suddenly reversed course completely and reinstated the Account. To this day, Google has not provided a straight answer—let alone a credible one—as to why Tulsi’s political speech was silenced right precisely when millions of people wanted to hear from her. But in context, the explanation for Google’s suspension of the Account at exactly the wrong time is no great mystery: Google (or someone at Google) didn’t want Americans to hear Tulsi Gabbard’s speech,so it silenced her. This has happened time and time again across Google platforms. Google controls one of the largest and most important forums for political speech in the entire world, and it regularly silences voices it doesn’t like, and amplifies voices it does.

Of course, if you're at all familiar with how this works -- as we've explained for years now -- you'll know that there's a much more credible reason than someone at Google trying to sabotage Gabbard's campaign: it's that making these kinds of decisions at scale is effectively impossible, and mistakes are made or situations turn up that, at first glance, certainly appear to violate terms of service. This is especially true in political advertising, a part of the social media ecosystem that is under even more scrutiny than other parts, as many people believe that was abused during the 2016 election, and there are various efforts underway to make platforms even more careful about what kind of political advertising they allow. Given that backdrop it's not at all surprising that Gabbard's campaign might get caught in the crossfire.

Hell, we've experience something kind of similar -- in which Google has (on multiple occasions) removed advertising from our site and threatened to close down our account entirely based on its broken ad review system. It happens, and we complain about it -- but never in a million years would I think that Google was purposefully targeting someone by doing that. It's because we recognize that these kinds of moderation decisions are difficult and at scale, even a small percentage of mistakes will end up hitting a lot of people. But that's Google's right. It's Google's platform, after all.

Also, what's particularly odd about this is that the focus of the lawsuit is on Gabbard's campaign losing her advertising account. Anyone doing a Google search for Gabbard was still getting tons of organic search results for Gabbard. In effect, this is Gabbard saying that it's somehow against the law to not accept her money to put her own messages at the top of Google, above the organic ones. Who knew that there was a legal right to skip to the top of all Google results if you've got money to burn? No one. Because there is no such right.

And that's not all. The conspiracy theories go deeper:

And Google’s election manipulation doesn’t stop with its search platform. For example, Google’s email platform Gmail sends communications from Tulsi into people’s Spam folders at a disproportionately high rate. In fact, Gmail appears to classify communications from Tulsi Gabbard as Spam at a rate higher than other similar communications—for example, those from other Democratic presidential candidates. There is no technical explanation for this disparity.

Uh, yeah, there is a "technical explanation for this disparity." (1) Spam filters, like any other filters, don't always work well and often filter "legitimate" mail, (2) lots of people may have marked Gabbard's emails as spam, training the system to treat them as such, or (3) Gabbard's emailing practices may have been more spam-like than other candidates. It's also possible that she's wrong that her emails went to spam more often than other candidates. Either way, there are lots of possible explanations that are significantly more plausible than some nefarious plot in Larry Page's office to take Gabbard out of the running.

Either way, like many of the other troll lawsuits over basic moderation decisions, this one appears to be a lot more performative than serious in any legal sense. First off, it's highly questionable why this is a federal lawsuit as opposed to a state one, since most of the claims are state ones. The federal claims are laughable and should be tossed out pretty quick. Also, the complaint has all sorts of bizarre, laughable conspiracy theory elements to it, including the idea that Google employees backing Obama and Clinton over the last few presidential cycles is clear evidence of their bias in how the search engine operates (it is not). There's a claim that because searching for "SESTA" on Google turns up an EFF site as the top result... that's somehow proof of Google tilting the scales (not mentioned: EFF has a complaint before the FTC about Google, and receives very, very little money from any corporate donor, including Google).

She also claims that "the government" is somehow responsible for "ceding the internet to Google" because the FTC declined to file a complaint against Google in 2012 over unrelated issues, despite some FTC staff believing there was a legitimate case (not enough of them did to support actually filing a case, but Gabbard seems to chalk that up to a conspiracy to give the internet to Google, rather than a lack of evidence and the realization in the FTC that it would likely lose such a case).

Bizarrely, Gabbard's complaint completely rewrites the history of net neutrality in a blatantly false way to support her nonsense legal arguments:

Other disturbing data points about the power wielded by Google and other major tech companies like Facebook have emerged in recent years. In the early 2010s, the FCC rightly considered whether net neutrality regulations, which sought to provide equal access to the Internet by governing Internet Service Providers, should also be extended to apply to Internet content platforms like Google. However, during the Trump presidency, the FCC has not only declined to extend net neutrality protections to apply to Internet content platforms like Google, it has revoked those regulations that were already existing. See [n the Matter of Restoring Internet Freedom, 33 F.C.C. Rcd. 311 (2018); United States Telecom Ass’nv. FCC, 825 F.3d 674, 729 (D.C. Cir. 2016). Companies like Google have more leeway and ability than ever to bend the Internet to their will.

That... is a bizarre and, at best, misleading reading of net neutrality history (at worst, it's manipulative). No one ever seriously considered "extending" net neutrality rules to Google because (1) the only people who suggested it were AT&T mouthpieces trolling the whole net neutrality process, (2) it's not part of the FCC's mandate to handle regulation of edge service providers, and (3) there is no such thing as "net neutrality" for search engines because their whole business is about providing recommendations, which by definition cannot be "neutral". A "neutral" search engine is one that gives you totally random results. A working search engine is one that gives you "biased" results. Biased in support of relevance to whatever you're looking for.

As for the actual claims in the lawsuit, they're all repeats of failed claims elsewhere. They won't go far. First up, there's a laughable 1st Amendment claim. As everyone knows, Google is not bound by the First Amendment as it is not a government actor. Yet, Gabbard (incredibly weakly) argues that it is:

Google creates, operates, and controls its platform and services, including but not limited to Google Search, Google Ads, and Gmail as a public forum or its functional equivalent by intentionally and openly dedicating its platform for public use and public benefit, inviting the public to utilize Google as a forum for free speech. Google serves as a state actor by performing an exclusively and traditionally public function by regulating free speech within a public forum and helping to run elections. Accordingly, speech cannot be arbitrarily, unreasonably, or discriminatorily excluded, regulated, or restricted on the basis of viewpoint or the identity of the speaker on Google’s platform. Google’s actions, and the actions of its agents, deprive the Campaign of its constitutional rights. Google has restricted the Campaign’s speech and expressive conduct by adopting and applying subjective, vague, and overbroad criteria (the ‘Subjective Criteria”) that give Google unfettered and unbridled discretion to censor speech for arbitrary, capricious, or nonexistent reasons. The Subjective Criteria fail to convey a sufficiently definite warning to the Campaign (or the public) as to what is prohibited or restricted and, as a result, they allow Google to censor speech at its whim and based on subjective animus towards the speaker and/or her particular political or religious viewpoint.

So, this complaint is basically using the "magic words" legal theory. For someone to be a state actor, they need to be operating a service that is "exclusively and traditionally" run by the government. But beyond saying that Google does this, the complaint makes literally no effort whatsoever to back up that claim. Because it can't. Because it's laughable. I mean, just a few weeks ago, the Supreme Court made it quite clear that the bar to be considered a state actor to be bound by the 1st Amendment is much, much higher. From the Supreme Court's ruling in Manhattan Community Access:

It is not enough that the federal, state, or local government exercised the function in the past, or still does. And it is not enough that the function serves the public good or the public interest in some way. Rather, to qualify as a traditional, exclusive public function within the meaning of our state-action precedents, the government must have traditionally and exclusively performed the function. The Court has stressed that “very few” functions fall into that category.... Under the Court’s cases, those functions include, for example, running elections and operating a company town.... The Court has ruled that a variety of functions do not fall into that category, including, for example: running sports associations and leagues, administering insurance payments, operating nursing homes, providing special education, representing indigent criminal defendants, resolving private disputes, and supplying electricity.

Gabbard arguing that Google is "running elections" is laughable.

The state claims aren't going to win any fans either. Gabbard -- like every damn troll who sues social media sites -- tries to use California's Unruh act, claiming this is a civil rights violation. So far, each of those has failed, including one that just failed last week when some Russian trolls lost their lawsuit against Facebook. The ruling in that case seems like the thing that Gabbard's lawyers should have read before filing this nonsense nuisance lawsuit:

Courts have rejected the notion that private corporations providing services via the internet are public fora for purposes of the First Amendment. For instance, in Prager Univ. v. Google LLC, this Court rejected the notion that “private social media corporations . . . are state actors that must regulate the content of their websites according to the strictures of the First Amendment” under public forum analysis. 2018 WL 1471939, at *8 (N.D. Cal. Mar. 26, 2018) (emphasis in original). In addition, the Ebeid court rejected the argument that Facebook is a public forum. 2019 WL 2059662, at *6. Moreover, in Buza v. Yahoo!, Inc., the court held that the plaintiff’s assertion that “Yahoo!’s services should be seen as a ‘public forum’ in which the guarantees of the First Amendment apply is not tenable under federal law. As a private actor, Yahoo! has every right to control the content of material on its servers, and appearing on websites that it hosts.” 2011 WL 5041174, at *1 (N.D. Cal. Oct. 24, 2011). Furthermore, in Langdon v. Google, Inc., the court held that “Plaintiff’s analogy of [Google and other] Defendants’ private networks to shopping centers and [plaintiff’s] position that since they are open to the public they become public forums is not supported by case law.” 474 F. Supp. 2d 622, 632 (D. Del. 2007). At bottom, the United States Supreme Court has held that property does not “lose its private character merely because the public is generally invited to use it for designated purposes.” Lloyd Corp. v. Tanner, 407 U.S. 551, 569 (1972). Thus, simply because Facebook has many users that create or share content, it does not mean that Facebook, a private social media company by Plaintiffs’ own admission in the complaint, becomes a public forum.

Much of the lawsuit is based on a two massive assumptions, neither of which are accurate:

That Google is a state actor That Google acted arbitrarily and capriciously in deliberately targeting Gabbard

The entire lawsuit falls apart if even one of those is not accurate, and neither of them are.

Even stranger: the complaint doesn't even seem to recognize that Section 230 of the Communications Decency Act exists. It makes no mention of it, nor attempts to get around it. It just pretends it's not there. Which is kind of strange.

This case is going to get laughed out of court. It's even possible that Google could make an anti-SLAPP argument here and stick the Gabbard campaign with its legal fees.

There's one other element in all of this that should be mentioned, is that even though this seems to disprove the argument that Google is somehow targeting "conservatives" (Gabbard is a Democrat with (mostly) typical Democratic party positions), the same folks on social media who constantly whine about Google censoring conservatives are... cheering on this announcement (and, no I'm not linking), even as it partially disproves a key part of their argument. It does seem notable that part of the lawsuit actually quotes Breitbart and highlights that Breitbart claims that Google "routinely censors conservative viewpoints" (and Breitbart ran multiple articles cheering on this lawsuit).

More recently, Google employees engaged in an internal lobbying campaign to block Breitbart from Google’s advertising program. As part of this internal lobbying campaign, one Google employee pressed that “[t|]here is obviously a moral argument to be made [to blocking Breitbart] as well as a business case.” While it’s not entirely clear what “business case” the Google employee was referring to, it’s important to note that Breitbart has been among Google’s staunchest critics, alleging that the company routinely censors conservative viewpoints.

I'm not sure what anyone thinks this proves. If the argument -- as Breitbart pushes -- is that Google censors conservatives (a statement made repeatedly without proof) this whole lawsuit partially debunks that. If the argument is that Google censors views it doesn't like, well, again there's no actual evidence of that, but either way, are they making the argument that there's some sort of "must carry" rules, which is just utter nonsense. Like this lawsuit.

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Filed Under: advertising, content moderation, political advertising, public forum, section 230, state actor, tulsi gabbard

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