United States District Court, District of Columbia
FREEDOM WATCH, INC. et al., Plaintiffs,
GOOGLE, INC. et al., Defendants.
N. MCFADDEN, U.S.D.J.
case is brought by conservative activists who allege that
America's major technology firms have conspired to
suppress their political views. The Plaintiffs raise
non-trivial concerns. But because they have failed to tie
these concerns to colorable legal claims, the Court must
dismiss their Amended Complaint.
Watch and Laura Loomer accuse Google, Facebook, Twitter, and
Apple (collectively, the “Platforms”) of working
together to “intentionally and willfully suppress
politically conservative content.” Am. Compl. 4.
Freedom Watch describes itself as a “conservative
non-profit public interest organization.” Am. Compl.
11. It operates YouTube, Facebook, Twitter, and Apple accounts
through which it publishes and promotes media content.
Id. This content seeks to “inform the public
about [Freedom Watch's] conservative advocacy” and
to raise funds to further its mission. Id.
Watch “experienced steady growth in both audience and
revenue generated through these platforms for many
years.” Id. at 12. This changed, the
organization suggests, following the “suppression of
conservative content, ” which “grew more
pronounced and severe . . . after the election of President
Donald J. Trump.” Id. Freedom Watch alleges
that its “growth on these platforms has [since] come to
a complete halt, and its audience base and revenue generated
has either plateaued or diminished.” Id.
Freedom Watch, Ms. Loomer has a Facebook account.
Id. at 16. Until recently, she also maintained a
Twitter account with over 260, 000 followers. Id. at
14. She describes herself as a “conservative
investigative journalist and political activist, ”
id. at 13, and she uses her social media accounts to
“reach her audience with her investigative
work.” Id. at 16. Ms. Loomer claims that
Twitter banned her “permanently and without
cause” after she posted a tweet about Congresswoman
Ilhan Omar, a Democrat. Id. at 14. After this tweet,
“Facebook subsequently banned [her] for 30 days.”
Id. Because of these alleged actions, Ms. Loomer
“has and will continue to suffer severe financial
injury.” Id. at 16.
Plaintiffs believe that the Platforms' conduct violates
several laws. First, they argue that the Platforms
“have entered into an illegal agreement to refuse to
deal with conservative news and media outlets . . . as well
as to suppress media content and advocacy.”
Id. at 17. This purported agreement is
“evidenced by the fact that Freedom Watch began losing
users on each of Defendants['] platforms at or around the
same time.” Id. And because it has “no
legitimate business justification and is plainly
anticompetitive, ” id., the agreement violates
§ 1 of the Sherman Act. Id. at 20-21.
the Plaintiffs contend that the Platforms have also violated
§ 2 of the Sherman Act. Id. at 22. They have
done so by “willfully” engaging in “an
exclusionary course of conduct” with a “specific
intent to monopolize, and to destroy effective competition in
the relevant market for media and news publications.”
the Platforms have allegedly violated the District of
Columbia's Human Rights Act. Id. at 23. The
Plaintiffs suggest that the Platforms have denied 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.” Id. Political affiliation
and religious beliefs are both traits protected by the Act,
which prohibits discrimination on these bases at places of
public accommodation. See D.C. Code §
2-1402.31. Arguing that the Platforms are “public
accommodations, ” the Plaintiffs contend that the Act
covers the alleged discrimination they faced. Am. Compl. 23.
the Plaintiffs assert that the Platforms have deprived them
of their “constitutional rights by censoring [their]
content for purely political reasons.” Id. at
24. This censorship, they assert, violates the First
Amendment because the Platforms are “quasi-state
actors” that “create, operate, and control
public platforms that are for public use and public
Platforms have moved to dismiss these claims. They argue that
the Plaintiffs lack standing to sue them. Defs.' Mot. to
Dismiss Am. Compl. (“Defs.' Mot.”) at 4, ECF
No. 29. They also argue that the Plaintiffs have failed to
state legally cognizable claims. Id. at 8. They
believe that they are not subject to the First Amendment or
the District's Human Rights Act, as they are neither
state actors nor public accommodations. Id. at 8,
17. And they contend that the Plaintiffs have failed to
allege sufficiently the existence of any agreement or
unilateral actions that violate the Sherman Act. Id.
the Plaintiffs have standing to sue is a “threshold
jurisdictional question.” Steel Co. v. Citizens for
a Better Env't, 523 U.S. 83, 102 (1998). Article III
of the U.S. Constitution limits this Court's jurisdiction
to “actual cases or controversies.” Clapper
v. Amnesty Int'l USA, 568 U.S. 398, 408 (2013).
“No principle is more fundamental to the
judiciary's proper role in our system of government than
the constitutional limitation of federal-court jurisdiction
to actual cases or controversies, ” and the
“concept of standing is part of this limitation.”
Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 37
(1976) (citation omitted).
standing, the Plaintiffs bear the burden of alleging an
injury that is “concrete, particularized, and actual or
imminent; fairly traceable to the challenged action; and
redressable by a favorable ruling.” Clapper,
568 U.S. at 409. Facing a motion to dismiss under Federal
Rule of Civil Procedure 12(b)(1), they “must clearly
allege facts demonstrating each element.” Spokeo,
Inc. v. Robins, 136 S.Ct. 1540, 1547 (2016) (cleaned
up). The Court will “draw all reasonable inferences
from [the Plaintiffs'] allegations in [their] favor,
” but it may not “accept inferences that are
unsupported by the facts, ” “assume the truth of
legal conclusions, ” or credit “threadbare
recitals of the elements of standing.” Arpaio v.
Obama, 797 F.3d 11, 19 (D.C. Cir. 2015).
Platforms also seek dismissal for a “failure to state a
claim upon which relief can be granted.” Fed.R.Civ.P.
12(b)(6). A valid complaint must contain factual allegations
that, if true, “state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). Mere “labels
and conclusions” or “naked assertion[s] devoid of
further factual enhancement” are insufficient.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quotations omitted). Rather, “[a] claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
evaluating a motion to dismiss, the Court must construe the
complaint in the light most favorable to the Plaintiffs and
accept as true all reasonable factual inferences drawn from
well-pleaded allegations. In re United Mine Workers of
Am. Emp. Benefit Plans Litig., 854 F.Supp. 914, 915
(D.D.C. 1994). The Court need not, however, accept legal
conclusions or mere conclusory statements as true.
Iqbal, 556 U.S. at 678. Evaluating a motion to
dismiss is a ...