WSGR Secures Win for Twitter in Case Alleging Bias
On March 14, 2019 the United States District Court for the District of Columbia issued an important decision, dismissing a putative class action brought against Twitter, Google, Facebook, and Apple by the conservative organization Freedom Watch and journalist Laura Loomer. This is one of a number of recent cases targeting online services for alleged bias against conservative content, including PragerU v. YouTube, which is now on appeal on the Ninth Circuit Court of Appeals. In this case, Freedom Watch and Loomer alleged that Twitter, Google, Facebook, and Apple were involved in a conspiracy to discriminate against conservative users of their platforms. They alleged claims under the First Amendment, the District of Columbia Human Rights Act (DCHRA), and the Sherman Act. Wilson Sonsini Goodrich & Rosati represented Twitter.
In a comprehensive ruling, the court rejected all of the plaintiffs' claims as a matter of law. As for the plaintiffs' First Amendment claim, the court held that Twitter, Google, Facebook, and Apple are not state actors. That ruling follows settled law, and the court specifically rejected the plaintiffs' effort to change the law based on two recent cases: the Supreme Court's decision in Packingham v. North Carolina; and a Second Circuit Court of Appeals decision (awaiting decision at the U.S. Supreme Court) in Halleck v. Manhattan Cmty. Access Corp. The court explained that neither case supports the idea that private online service providers are regulated by the First Amendment when they make decisions about what content may appear on their private platforms.
The court rejected the plaintiffs' DCHRA claim on the grounds that the statute applies only to physical places of accommodation, not online services. This is a significant ruling that may have implications in other cases seeking to treat websites as places of public accommodation in a variety of contexts.
Finally, the court held that the plaintiffs failed to state an antitrust claim based upon a supposed conspiracy among defendants to suppress conservative speech. The court concluded that the plaintiffs did not adequately allege any agreement among the defendants or that the defendants had monopolized or sought to monopolize any market.