Daily Dicta: Law Firm Fab Four Convinces Trump Judge to Reject Social Media Conspiracy Claim
For all the hand-wringing on the left about Trump packing the courts, here's another instance where one of the president's appointees kept his eye on the law, not politics.
March 19, 2019 at 12:41 PM
4 minute read
Judge Trevor N. McFadden, of the U.S. District Court for the District of Columbia.
I almost—but not quite—felt sorry for Freedom Watch founder/ conservative activist Larry Klayman, who waged a one-man battle against monster lineup of opposing counsel from Kirkland & Ellis; Williams & Connolly; Boies Schiller Flexner and Wilson Sonsini Goodrich & Rosati.
Last week, U.S. District Judge Trevor McFadden of the District of Columbia dismissed Klayman's suit against the litigation fab four's clients—Facebook, Google, Apple and Twitter.
Suing on behalf of Freedom Watch and political activist Laura Loomis, Klayman (who did not respond to a request for comment) accused the companies of working together to “intentionally and willfully suppress politically conservative content.”
Still, don't expect McFadden's decision to be the last word on the subject. On Monday, Rep. Devin Nunes (R- Calif.) sued Twitter for $250 million in Virginia state court for defamation, alleging that the social media site “actively censors and shadow bans conservatives such as plaintiff, thereby eliminating his voice while amplifying the voices of his Democratic detractors.”
With a minimum of fuss, McFadden—who was nominated to the bench in 2017 by President Donald Trump—found that the plaintiffs had standing to sue. But he concluded that they failed to state a viable legal claim.
It's a reassuring ruling. Because for all the hand-wringing on the left about Trump packing the courts, here's another instance where one of the president's appointees kept his eye on the law, not politics.
“The plaintiffs raise non-trivial concerns,” wrote the judge, who was formerly second-in-command of the Justice Department's Criminal Division and a partner at Baker McKenzie. But he required more than blanket assertions from the plaintiffs to back up their claims.
While Klayman “repeatedly states that the platforms have engaged in a conspiracy or illegal agreement,” the complaint “offers only these conclusory statements to suggest the existence of such an agreement,” McFadden wrote. “It includes no allegations, for example, that any of the platforms met or otherwise communicated an intent to collectively suppress conservative content.”
That doesn't cut it under Section 1 of the Sherman Act. “Merely invoking terms like 'conspiracy' and 'agreement' is not enough,” the judge wrote.
Klayman also asserted that the companies were “willing to lose revenue from conservative organizations and individuals like Freedom Watch” in order to “further their leftist agenda.”
McFadden's response? A shrug.
“Losing revenue from certain organizations or individuals is not necessarily against the economic interests of any of the platforms,” he noted, pointing to Nike's ad campaign featuring Colin Kaepernick as an example. “A loss of income from one source can be offset by larger gains in income from other sources.”
Klayman also alleged discrimination based on political affiliation under the D.C. Human Rights Act. But that protection only applies to a “place of public accommodation” like a restaurant or a hotel, the judge found. “As the D.C. Court of Appeals has made clear, the alleged place of public accommodation must be a physical location.”
“The plaintiffs' arguments to the contrary are unpersuasive,” he continued. “They suggest that 'many courts across the nation have expressly held internet sites to be places of 'public accommodation.' Maybe so. But these courts were not interpreting the D.C. Human Rights Act.”
Finally, he rejected Klayman's First Amendment claim because none of the companies are state actors.
“Facebook and Twitter, for example, are private businesses that do not become 'state actors' based solely on the provision of their social media networks to the public,” he ruled.
According to the docket, Kirkland & Ellis partners Craig Primis and Winn Allen plus associate Mary Elizabeth Miller represented Facebook.
Williams & Connolly partners John Schmidtlein and Thomas Hentoff represented Google, which was sued in its capacity as the owner of YouTube. (Kannon Shanmugam was on the team until Jan. 30, but withdrew when he jumped to Paul Weiss.)
Apple turned to Boies Schiller vice-chairman William Isaacson, partner Joshua Riley and associate James Kraehenbuehl. (Partner Michael Gottlieb was part of the team until he decamped for Willkie Farr & Gallagher in January.)
Wilson Sonsini partners Brian Willen and Jonathan Jacobson represented Twitter.
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