tulsi gabbard – Techdirt (original) (raw)

‘Free Speech Absolutist’ Elon Musk Temporarily Bans Journalists, As ‘Free Speech Absolutist’ Bill Ackman Threatens SLAPP Suit Against Journalists

from the free-speech-only-for-my-friends dept

On Tuesday morning, former politician Tulsi Gabbard, who had to have the 1st Amendment clearly explained to her by a judge after she filed a ridiculous lawsuit to restrict the free speech of others, announced that she had cut a deal with Elon Musk to bring a “news show” to ExTwitter. Hilariously, she claimed that she did this because “freedom of speech is a fundamental right in America” (again, a court had to teach her what that meant not that long ago).

At around the exact same time, “free speech absolutist” Elon Musk was busy banning a bunch of reporters from ExTwitter for saying things that upset him and his pal Bill Ackman.

The social media platform gave no explanation for the sudden purge, saying only that the accounts “violate the X rules.” The X rules prohibit violent or hateful speech, child exploitation, private information sharing, and fake information.

But the accounts in question do not post that kind of content. The reporters who were banned include Steven Monacelli, a journalist at the Texas Observer who covers extremism, and Ken Klippenstein, who covers national security for The Intercept. Last year, Klippenstein published a piece on the errors with Tesla’s self-driving feature, and Monacelli noted that X shadow-banned the Intercept author since then.

MintPress News reporter Alan MacLeod, who recently has extensively covered Israel’s approach to the war in Gaza, and leftist podcaster Rob Rousseau were also suspended Tuesday.

The accounts for @liamnissan, @zei_squirrel, and the TrueAnon podcast were suspended, as well. The @liamnissan account posts mostly comedic commentary, including criticisms of Musk. The TrueAnon podcast provides left-wing analysis of current political events and conspiracy theories.

The @zei_squirrel account is another left-leaning commentator who has been critical of Musk in the past. In a post on their Substack Tuesday, the @zei_squirrel writer noted that they had recently begun to criticize Bill Ackman, a hedge fund billionaire and friend of Musk’s who helped lead the campaign against former Harvard University President Claudine Gay. Ackman’s wife was recently accused of plagiarism, the same charge that brought down Gay.

For what it’s worth Ackman has been going on a bit of a bender lately following the accusations of plagiarism against his wife. He’s been making up nonsense about how in the “early days” of 2009 no one thought there was anything wrong with straight up copying Wikipedia without attribution, which is just wrong. Wikipedia uses a CreativeCommons Attribution-ShareAlike license, which means it expects “attribution.” And was not, in any way, in the early days in 2009.

Still, Ackman, who helped push the witch hunt against Claudine Gay over her speech, and who is now threatening to file a laughably bogus SLAPP defamation suit against Business Insider for reporting on his wife’s alleged plagiarism — suggesting his support for “free speech” is a bit questionable as well — also falsely claims that Elon Musk is somehow a supporter of free speech. I mean, the content excerpted in two separate tweets just days apart is something else (I’d post screenshots of the tweets, but Ackman uses ExTwitter like it’s a blog and posts what appear to be trillion-word tweets.)

So, first he claims (falsely) that because MIT’s integrity handbook didn’t explicitly call out Wikipedia until 2013, it was okay to copy text directly from Wikipedia until then, and that this might somehow be defamatory (it is absolutely not):

To be clear, Neri did not use Wikipedia as a source, but only for the definitions of 15 words and/or terms for her dissertation.

While there was no way for us to do this research in the 91 minutes we were given before Business Insider published its story, our lawyers found it in about 24 hours.

This finding wipes away 15, or more than half of the plagiarism claims made by Business Insider at 5:19pm last Friday night.

According to the Cornell Law Legal Information Institute: In order to prove “prima facie defamation,” “a plaintiff must show four things: 1) a false statement purporting to be fact; 2) publication or communication of that statement to a third person; 3) fault amounting to at least negligence; and 4) damages, or some harm caused to the reputation of the person or entity who is the subject of the statement.”

This leads me to a few question for the @X legal community. If you look at all of the evidence that has emerged over the last few days, do you think Neri has been defamed under the four factor test above?

As multiple people pointed out to him in response, the actual standard for defamation of a public figure is actual malice, and he claims (again, not understanding the law) that because his wife is “an intensely private person” that makes her not a public figure, which is also… not how any of this works.

Anyway, just days earlier, Ackman went on a different rant (also about his wife) in which he concludes two ponderously long tweets that no one actually read in full with:

Lastly, if X was not independently controlled and governed by a free speech absolutist, Neri and I would not have had the ability to respond in a rapid fashion in a public forum where free speech is allowed, encouraged, and respected. I would also not have had the ability to reach millions of people with what I believe are important messages.

And I would not have been able to be nearly as effective in my campaign to help save the higher education system in our country, and I represent just one of hundreds of millions of grateful users.

So thank you @elonmusk !!! and thank you @lindayaX for holding strong

And, the two “free speech absolutists” are pushing each other to file a lawsuit to silence free speech they dislike:

Eventually, Elon unbanned the accounts after a nonsense peddler asked him what was happening, and Elon promised “to investigate.” He later claimed that they “do sweeps for spam/scam accounts and sometimes real accounts get caught up in them.”

Of course, this is what plenty of people (such as myself) pointed out about mistakes that were made in the past under Twitter’s old management, and people like Elon insisted that it couldn’t possibly be mistakes, and was all about ideological censorship.

The simple fact is, any platform has to do some level of moderation, and as soon as you do that, you’re going to make mistakes. I’d give Elon and ExTwitter the benefit of the doubt that this was just a mistake if (a) he had done that to previous management, though he did not and (b) if the accounts in question weren’t all found to have recently criticized Elon and/or Bill Ackman.

Given Elon’s own unwillingness to give the benefit of the doubt to others, why should we give him the benefit of the doubt here?

Either way, Elon is free to do whatever he wants on his platform. But absolutely no one should be under the illusion that what he’s doing has anything even remotely related to “defending free speech.” He is making decisions based on his own personal whims and foibles, which includes an extraordinarily warped sense of free speech that permits suing critics.

Filed Under: bill ackman, content moderation, defamation, elon musk, free speech, journalists, neri oxman, slapp suits, tulsi gabbard
Companies: twitter, x

As A Parting Shot, Tulsi Gabbard Teams Up With Paul Gosar To Introduce Yet Another Unconstitutional Attack On Section 230

from the tis-the-season dept

Back in October, Reps. Tulsi Gabbard (who is leaving Congress in a few weeks) and Paul Gosar (whose had six of his own siblings tell voters that their brother should not be in Congress), teamed up to introduce an incredibly stupid anti-Section 230 bill, which would take 230’s liability protections away from any site that does basic data tracking or has an algorithmically generated feed.

Apparently that wasn’t enough, because they’ve now teamed up to introduce a second anti-230 bill that is (would you believe it?) even more ridiculous. They’re calling it the “Break Up Big Tech Act.”

The Breakup Big Tech Act of 2020 would take away legal immunity from interactive computer service providers that engage in certain manipulative activities, including social media companies who act as publishers by moderating and censoring content. Specifically, the Breakup Big Tech Act of 2020 would remove legal immunity for providers that engage in the following activities:

* Selling and displaying personalized as well as contextual advertising without user?s consent * Collecting data for commercial purposes other than the direct sale of the interactive computer service, i.e. turning the user into a commodity or otherwise monetizing the transmission of content * Acting as a marketplace in the digital space by facilitating the placement of items into the stream of commerce * Employing digital products and designs intended to engage and addict users to the service * Acting as a publisher by using algorithms to moderate or censor content without opt-in from users

Now there are certainly plenty of legitimate questions to be had about that list of activities, and whether or not they should be allowed, or how and if they should be regulated. Those should all be subject to some level of debate and discussion. But to say “just wipe out 230’s liability protections” for any company that does any of those things… is legitimately crazy.

This bill is going nowhere, because this Congress is basically over, so I won’t go point by point on how stupid a bill this is, but I’ll just note that last point is punishing a company for making editorial choices, and the 1st Amendment would probably like to explain to Gabbard and Gosar just how incredibly unconstitutional that would be.

Gabbard still really seems to be smarting from the fact that her dumb lawsuit against Google was easily dismissed. But here’s the key: the lawsuit was dismissed on 1st Amendment grounds, not because of 230. And changing 230 doesn’t change the 1st Amendment (which she swore to protect and uphold, but apparently doesn’t care about).

Filed Under: 1st amendment, break up big tech act, paul gosar, section 230, tulsi gabbard

Reps. Gabbard And Gosar Introduce Ridiculous House Companion To Ridiculous Anti-230 Senate Bill From Senator Kennedy

from the push-my-buttons dept

You may recall that, last year, Rep. Tulsi Gabbard decided to file a ridiculously silly lawsuit against Google, claiming that the company had “violated her First Amendment rights” because it temporarily shut down her advertising account, and also because it filtered some of her campaign emails to spam. In a lawsuit that read remarkably similar to the various people arguing that “anti-conservative bias” was the basis for a lawsuit, it made a whole bunch of silly claims that any good lawyer would recognize as frivolous (hold that thought).

The lawsuit was easily tossed out on 1st Amendment grounds. And when I say “1st Amendment grounds,” I mean the court had to explain to Gabbard — a sitting Congressional Representative — that the 1st Amendment only applies to the government and Google is not the government. This is really embarrassing:

Google is not now, nor (to the Court?s knowledge) has it ever been, an arm of the United States government….

[….]

To support its contention that a private actor can regulate elections, Plaintiff directs the Court to Terry v. Adams, 345 U.S. 461, 463 (1953). However, Terry is utterly inapposite to Plaintiff?s contention. In 1954, the Supreme Court held that the Fifteenth Amendment was implicated when a political party effectively prevented black citizens from voting. Terry, 345 U.S. at 463. The Court held: ?The evil here is that the State, through the action and abdication of those whom it has clothed with authority, has permitted white voters to go through a procedure which predetermines the legally devised primary.? Id. at 477. But Terry bears no relation to the current dispute, where Google, an undisputedly private company, temporarily suspended Plaintiff?s Google advertising account for a matter of hours, allegedly based on viewpoint bias.

What Plaintiff fails to establish is how Google?s regulation of its own platform is in any way equivalent to a governmental regulation of an election. Google does not hold primaries, it does not select candidates, and it does not prevent anyone from running for office or voting in elections. To the extent Google ?regulates? anything, it regulates its own private speech and platform. Plaintiff?s ?national security? argument similarly fails. Google protects itself from foreign interference; it does not act as an agent of the United States. Nearly every media or technology company has some form of cybersecurity procedure. Under Plaintiff?s theory, every media organization that took steps to prevent foreign cybercrimes could potentially implicate the First Amendment. Google?s self-regulation, even of topics that may be of public concern, does not implicate the First Amendment.

Pretty embarrassing for a court to need to explain how the 1st Amendment works to someone in Congress, but hey, it’s 2020.

The court jumped straight to the 1st Amendment issue, though it could have easily tossed out the case on Section 230 grounds as well, and it appears that Tulsi has now joined the “destroy Section 230” crowd, teaming up with Rep. Paul Gosar to introduce yet another anti-Section 230 bill in the House. If Gosar’s name rings a bell, he’s the representative from Arizona whose politics are so Trumpian and ridiculous that six of his own siblings took out an ad that told people not to vote for their brother.

So these two have now teamed up to introduce the Don’t Push My Buttons Act. If that sounds familiar, it’s because Senator John Kennedy introduced the same thing in the Senate last week. When that was introduced, we explained just how awful the bill was and that analysis stands. It would take Section 230 immunity away from sites that do some fairly basic data tracking, or if they use an algorithmically generated feed. It makes no sense and seems to serve only one purpose: to frustrate social media companies with annoying nuisance regulation.

The bill seems unlikely to go anywhere, and Gabbard is not running for re-election, so this again seems more for show than anything else, but what a terrible bill to go out on. Gabbard failed in her wacky legal attack on social media, and so as a parting gift she tries to remove their Section 230 protections. Disgusting.

Oh, as a side note: in Gabbard’s original lawsuit she was represented by the lawyers at Pierce Bainbridge. While the specific lawyers working on her case appear to have jumped ship from that firm during the collapse of that firm, the founder of the firm John Pierce, was a “high profile” addition to the defense team of Kyle Rittenhouse, the teenager facing murder charges in Wisconsin. This seemed weird, given that Pierce’s experience is in civil litigation, not criminal, and had to resign from the board of the foundation that he and Lin Wood (another lawyer with quite the recent reputation) had set up to seek funds for Rittenhouse’s defense, after questions were raised about how Pierce presided over the mess that was his disgraced law firm. The full article is worth reading, but just a snippet:

The firm?s financial woes have involved Pierce himself. In March 2020, John Pierce and Pierce Bainbridge were sued by a payday-lender-style financial business called Karish Kapital, which offers emergency cash for businesses. Karish Kapital alleged that Pierce had personally taken out a loan worth nearly $4 million from them and signed over the firm?s assets as collateral.

In a statement to The American Lawyer, a Pierce Bainbridge spokesperson said Pierce was on an ?indefinite leave of absence? and had ?accepted money from Karish Kapital LLC for his personal use.? In May, Pierce told Law360 that he had gone to rehab for unspecified issues.

Pierce?s loan from Karish Kapital marked the start of a cascade of bad news for the firm. On April 9, three named partners left the firm. James Bainbridge, the last remaining named partner aside from Pierce, set up his own separate firm in July, although he remains a partner at Pierce Bainbridge. As of May, Law360 reported, more than 60 lawyers had left the firm in the last six months.

So beyond an embarrassing legal loss, the fact that this was the firm Gabbard chose to file her ridiculous lawsuit against Google seems to raise significant questions about her own judgment in understanding not just the law she’s now seeking to change, but also the people she chose as her lawyers. Perhaps she really should sit out questions regarding internet law.

Filed Under: don't push my buttons act, john kennedy, john pierce, paul gosar, section 230, tulsi gabbard

Court Explains 1st Amendment To Tulsi Gabbard In Dismissing Her Ridiculous Lawsuit Against Google

from the that's-not-how-any-of-this-works dept

Just a week after the 9th Circuit easily upheld the dismissal of Dennis Prager’s silly lawsuit against Google for supposed anti-conservative bias, a district court has easily dismissed Rep. Tulsi Gabbard’s quite similar lawsuit against Google for… anti-Tulsi bias or some such nonsense. As we pointed out when the lawsuit was first filed, the case stood no chance at all, and was using completely debunked and rejected legal theories.

Judge Stephen Wilson made short work of the case, explaining to Gabbard and her Pierce Bainbridge lawyers how the 1st Amendment works, because the theory of it they presented in her case is… not it. Indeed, the court cites to the PragerU ruling from last week:

Plaintiff?s essential allegation is that Google violated Plaintiff?s First Amendment rights by temporarily suspending its verified political advertising account for several hours shortly after a Democratic primary debate. Plaintiff?s claim, however, ?runs headfirst into two insurmountable barriers?the First Amendment and Supreme Court precedent.? Prager Univ. v. Google LLC,

Then we get a bit of 1st Amendment 101 — which is the kind of thing that you would think the lawyers from Pierce Bainbridge had learned in law school, but apparently they needed a refresher course. Perhaps they can try to ask for some Continuing Legal Education credit for the lesson.

The First Amendment provides: ?Congress shall make no law . . . abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble . . . .? U.S. Const. amend. I. ?The First Amendment, applied to states through the Fourteenth Amendment, prohibits laws abridging the freedom of speech.? Animal Legal Def. Fund v. Wasden, 878 F.3d 1184, 1193 (9th Cir. 2018) (internal quotation omitted). In effect, ?the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.? United States v. Stevens, 559 U.S. 460, 468 (2010) (quoting Ashcroft v. ACLU, 535 U.S. 564, 573 (2002)) (emphasis added).

Google is not now, nor (to the Court?s knowledge) has it ever been, an arm of the United States government. ?The text and original meaning of those Amendments, as well as this Court’s longstanding precedents, establish that the Free Speech Clause prohibits only governmental abridgment of speech. The Free Speech Clause does not prohibit private abridgment of speech.? Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921, 1926 (2019) (emphasis in original); see Prager Univ., 2020 WL 913661, at *2 (?The Free Speech Clause of the First Amendment prohibits the government?not a private party?from abridging speech.?).

And, once again, the idea that Google becomes a state actor, because advertisers use it to advertise around an election is… not right. Not right at all.

Plaintiff alleges Google has become a state actor by virtue of providing advertising services surrounding the 2020 presidential election. ?Under this Court’s cases, a private entity can qualify as a state actor in a few limited circumstances?including, for example, (i) when the private entity performs a traditional, exclusive public function; (ii) when the government compels the private entity to take a particular action; or (iii) when the government acts jointly with the private entity.? Halleck, 139 S. Ct. at 1928 (internal citations omitted). Plaintiff?s argument is that, by regulating political advertising on its own platform, Google exercised the traditional government function of regulating elections. ?To draw the line between governmental and private, this Court applies what is known as the state-action doctrine. Under that doctrine, as relevant here, a private entity may be considered a state actor when it exercises a function ?traditionally exclusively reserved to the State.?? Id. at 1928 (quoting Jackson v. Metropolitan Edison Co., 419 U.S. 345, 352 (1974)).

Traditional government functions are defined narrowly. ?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.? Id. at 1928?29. ?Under the Court’s cases, those functions include, for example, running elections and operating a company town.? Id. at 1929. There is no argument that webservices or online political advertising are traditionally exclusive government functions. Plaintiff argues that, by providing some restriction on political advertising on its platform, Google is in effect regulating elections.

To support its contention that a private actor can regulate elections, Plaintiff directs the Court to Terry v. Adams, 345 U.S. 461, 463 (1953). However, Terry is utterly inapposite to Plaintiff?s contention. In 1954, the Supreme Court held that the Fifteenth Amendment was implicated when a political party effectively prevented black citizens from voting. Terry, 345 U.S. at 463. The Court held: ?The evil here is that the State, through the action and abdication of those whom it has clothed with authority, has permitted white voters to go through a procedure which predetermines the legally devised primary.? Id. at 477. But Terry bears no relation to the current dispute, where Google, an undisputedly private company, temporarily suspended Plaintiff?s Google advertising account for a matter of hours, allegedly based on viewpoint bias.

And then for those having difficulty catching up, the court explains that hosting election ads is not the same thing as running elections. Also, the court shoots down Gabbard’s wacky theory that efforts to protect its platform from foreign interference makes it an agent of the US government. Once again, that’s just laughably wrong.

What Plaintiff fails to establish is how Google?s regulation of its own platform is in any way equivalent to a governmental regulation of an election. Google does not hold primaries, it does not select candidates, and it does not prevent anyone from running for office or voting in elections. To the extent Google ?regulates? anything, it regulates its own private speech and platform. Plaintiff?s ?national security? argument similarly fails. Google protects itself from foreign interference; it does not act as an agent of the United States. Nearly every media or technology company has some form of cybersecurity procedure. Under Plaintiff?s theory, every media organization that took steps to prevent foreign cybercrimes could potentially implicate the First Amendment. Google?s self-regulation, even of topics that may be of public concern, does not implicate the First Amendment.

The case was so easy that it was dismissed with prejudice, so that Gabbard cannot filed an amended complaint. She might still appeal, though one hopes that she finds lawyers who might advise her on how that’s likely to go.

As a side note, almost within hours of the dismissal dropping, so too did news of a bunch of new lawyers leaving Pierce Bainbridge, including one, Tom Frongillo, who John Pierce had named just weeks ago as helping him in representing Rudy Giuliani.

Filed Under: 1st amendment, content moderation, free speech, social media, tulsi gabbard
Companies: google, pierce bainbridge

Trouble At The Law Firm Filing Patently Ridiculous Lawsuits On Behalf Of Tulsi Gabbard

from the and-also-representing-rudy dept

We’ve covered the two ridiculous lawsuits filed by Tulsi Gabbard in the past few months — one against Google and another against Hillary Clinton. In both cases, the lawsuits were filed by lawyers at the law firm Pierce Bainbridge, and we questioned why they’d want to sully their own reputation by filing lawsuits that seemed clearly destined to fail, and which only seemed to serve a PR purpose in playing to her supporters.

A few days later, NBC News posted quite an incredible story about how partners are bailing from the firm as a bunch other questionable activity has been alleged. Oh, and also, it appears that the same law firm representing Tulsi Gabbard is also representing… Rudy Giuliani as the DOJ looks into his role in various Ukrainian activities. Oh, and also Carter Page.

A law firm representing Rudy Giuliani in the Ukraine affair is locked in a bitter court battle with a former partner that has revealed allegations of financial misconduct, sexual assault and office masturbation.

The firm, Pierce Bainbridge Beck Price & Hecht, has faced an exodus of lawyers as the litigation stretches on, including two who were defending Giuliani amid a criminal probe launched by New York federal prosecutors.

The article goes on to describe quite an incredible set of lawsuits and countersuits between the firm and a former partner — with some pretty extreme claims being thrown in both directions, and with each side insisting the other side is making stuff up. Either way, what is clear is that eight partners have left recently. The founder of the firm, John Pierce, insists it’s because they couldn’t hack it, and came up with quite the ridiculous analogy comparing his firm to Navy SEALs.

Pierce downplayed the loss of eight partners and said the firm has added roughly the same number of lawyers. “As I have said from the day we launched, this firm is the legal industry equivalent of the Navy’s SEAL Team 6 or the Army’s 75th Ranger Regiment,” said Pierce, who co-founded the firm in 2017. “I will accept nothing less. Not everyone is cut out for SEAL training or Ranger school.”

That’s one way to spin things.

Filed Under: john pierce, law firms, rudy giuliani, tulsi gabbard
Companies: pierce bainbridge

As Tulsi Gabbard's Silly Attention Seeking Lawsuit Against Google Falters, She Files Equally Silly Lawsuit Against Hillary Clinton

from the a-slapp-asset dept

As you may recall, last year, Presidential candidate and current Congressional Rep. Tulsi Gabbard filed a laughably silly lawsuit against Google. We pointed out at the time that it had no chance at all, and echoed, quite directly, the debunked claims that some conservatives make about how Google censors them… even though Gabbard is not a conservative politician. It still threw the same kitchen sink of dumb legal arguments into the complaint, arguing that Google was a “state actor” (it’s not), and that Google’s moderation choices were a violation of California’s civil rights law, the Unruh Act.

What got much less attention was that in September, Gabbard’s lawyers filed an amended complaint that dropped all of the civil rights and Lanham Act claims and tried to press on solely with the 1st Amendment (and related 14th Amendment) claims. These will fail spectacularly. Google is not a state actor. There is no 1st Amendment claim here and any attempt to make one is a sign of pure silliness.

Of course, as that lawsuit is falling apart, it appears that Gabbard has decided to file a new vexatious lawsuit to get back in the headlines. This time she’s sued Hillary Clinton for defamation. The actual complaint is really bad. It’s laughable, and the lawyers who signed their names to it — Brian Dunne, Dan Terzian, and David Hecht, from Pierce Bainbridge — should be embarrassed. Of course, Dunne and Terzian also filed the silly case against Google, so I’m guessing they don’t much care about their own reputation as lawyers.

At issue, Hillary Clinton made some — admittedly stupid — comments about Gabbard on a podcast last fall, saying that the Russians supported Gabbard and that she might run as a 3rd party candidate.

PLOUFFE: [Trump is] going to try to drive people not to vote for him, but to say you can?t vote for them either…

CLINTON: They?re also going to do third party again. And I?m not making any predictions, but I think they?ve got their eye on somebody [Gabbard] who is currently in the Democratic primary and are grooming her to be the third-party candidate. She?s the favorite of the Russians, they have a bunch of sites and bots and other ways of supporting her so far. And that?s assuming [Green Party 2016 candidate] Jill Stein will give it up, which she might not, because she?s also a Russian asset.

Again, these comments are silly, bordering on conspiracy theories in the same vein that our current President likes to buy into all too often. But it’s not even remotely defamatory. At no point does she make any false statements of fact about Gabbard. First off, the 1st Amendment and the courts’ interpretation of it gives great leeway to political speech, considering that’s kind of the whole point behind the 1st Amendment. As such, the courts will almost certainly take this as standard overheated political rhetoric.

Second, breaking down what Clinton said, it makes no factual claims about Gabbard herself — but rather about “the Russians.” She may be wrong about what the Russians are doing, but that’s not defamatory towards Gabbard. Whether or not the Russians do favor Gabbard, or whether or not the Russians would like her to run as a 3rd party candidate, or whether or not they have a bunch of sites and bots promoting her — that’s all about the Russians. Even the “Russian asset” comment (which Clinton never directly states about Gabbard, but implies by saying it is “also” true of 2016 third party candidate Jill Stein), is not defamatory. A Russian asset doesn’t mean someone who is purposefully doing the bidding of the Russian government. That would be a Russian agent. Simply saying someone is an asset to the Russians, means that they’re valuable in some way to the Russians, and not that the Russians’ control them. And, as such, it’s clearly a statement of opinion.

Clinton can argue that the Russians benefit from a Gabbard campaign — and other people (including Gabbard, if she chose) could argue the other side. And that is the nature of political debate. But it is not defamatory to state your opinion, no matter how silly it might be.

But, of course, it appears that Gabbard and her lawyers at Pierce Bainbridge are not actually interested in righting any legal wrongs with these lawsuits. They just are ways to rile up a base and get her name back in the headlines. Even David Frum at the Atlantic has noted that these are lawsuits for attention from a Presidential candidate who is not going to win anything.

But then, much of Gabbard?s complaint reads less like a legal argument than a stump speech. It is not easy to imagine that any federal judge would look with much favor on the relentless boasting and self-promotion in a lawsuit that opens:

> 1. Tulsi Gabbard has lived her life with one guiding principle: putting the needs of others before her own. That?s why she joined the Army National Guard. That is why she campaigned for and was elected to the United States House of Representatives. And that is why she is running for President.

The 14-page brief crams in 13 references to Gabbard?s service in the Army National Guard.

Rather than being structured to convince a judge, the brief wishes to invite belief in an alternative universe where Hillary Clinton is running for president in 2020?and where Gabbard somehow presents an important obstacle to Clinton?s ambitions.

This is not unlike the lawsuit against Google, which excited a clueless base who insisted to us that Gabbard must have a strong case and Google would be taken down by it. Yet, of course, Gabbard’s own amended complaint, in which she dropped all of the claims that people kept telling me were easy wins for her, made no news at all.

This seems to be an all too common path taken by some politicians these days. Rile up your base by filing frivolous lawsuits. This is why we actually need stronger anti-SLAPP laws in every state, plus a federal anti-SLAPP law. It is, of course, notable, that Gabbard’s suit against Clinton was filed in the Southern District of New York, and NY’s anti-SLAPP law is incredibly weak and is unlikely to apply in this instance (it only applies to statements made while petitioning the government).

Filed Under: 1st amendment, anti-slapp, defamation, free speech, hillary clinton, russian asset, slapp, tulsi gabbard
Companies: google

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:

1. That Google is a state actor
2. 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.

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