On Aug. 29, 2018, Freedom Watch filed a lawsuit against Apple, Facebook, Google, and Twitter, alleging that the companies intentionally suppressed politically conservative content on their platforms in concert with CNN, MSNBC, The New York Times, and The Washington Post in order to bring down President Donald Trump. On March 14, 2019, U.S. District Court Judge Trevor N. McFadden rejected Freedom Watch's arguments and dismissed the lawsuit.
Independent journalist Laura Loomer told UncoverDC that she joined the Freedom Watch lawsuit on Dec. 6, 2018 after she was banned from Twitter in November. Loomer's case has hit many roadblocks and Covid has also delayed proceedings.
Loomer has filed two other lawsuits. One was a defamation case against Facebook in July of 2019 and the other was a lawsuit against CAIR in May of 2019. Both cases were dismissed. Loomer also ran for office in the U.S. House Florida District 21 on Nov. 3 in the general election, losing to Lois Frankel (D).
The lawsuit being discussed here is an anti-trust and human rights case based on precedent. And, while it is a First Amendment case, it is not a Section 230 case.
Loomer's lawyer, Larry Klayman, is founder of Judicial Watch and Freedom Watch. According website, Klayman is known for his "strong public interest advocacy in furtherance of ethics in government and individual freedoms and liberties."
Photo/Courtesy of Larry Klayman
Much of Loomer's case has to do with The Sherman Antitrust Act and The District of Columbia Human Rights Act.
The Sherman Antitrust Act of 1890 is a "federal statute which prohibits activities that restrict interstate commerce and competition in the marketplace." It was later amended by the Clayton Act in 1914.
Loomer maintains that the Sherman act applies in her case because the Respondents have participated in "well-documented and publicized anti-competitive pattern and practice of suppressing and censoring conservative content." In other words, they have essentially become a monopoly entity whose conduct has produced a "chilling anti-competitive effect on conservative news." According to the lawsuit, big tech and their social media platforms are formidable foes because of their ability to "pay for and employ well-funded lobbyists to do their bidding." Their resources shield them unfairly from liability and leave citizens like Loomer feeling powerless to hold them accountable. In addition, they have been able to essentially work in concert to demonetize platforms, engineer search engines and outright censor conservatives.
The District of Columbia Human Rights Act of 1977 (DCHRA) secures "an end in the District of Columbia to discrimination for any reason other than that of individual merit" and makes discrimination illegal due to but not limited to reasons "of race, color, religion, national origin, sex, age, marital status, personal appearance, sexual orientation, gender identity or expression familial status, family responsibilities, matriculation, political affiliation, genetic information, disability, source of income, status as a victim of an intrafamily offense, and place of residence or business."
Loomer and Klayman argue that the Court has failed to find that the "DCHRA's prohibition on political discrimination does not require a physical location." Klayman argued that courts should recognize that discrimination on the internet is, while not physical in the traditional sense, still a location where people are served. In 1977, when the Act was put into law, "physical establishments refused to serve individuals on the basis of race or other characteristics." So, it follows, Klayman argues, that the internet is now the place of interaction and service. The lawsuit states, "The only way for the DCHRA to continue to serve its purpose is to interpret it in a fashion that accounts for how people interact today."
On Dec. 5, 2019 Loomer and Freedom Watch filed an appeal alleging that Google, Facebook, Twitter, and Apple "conspired to suppress conservative political views and violated the First Amendment, the Sherman Antitrust Act, and the District of Columbia Human Rights Act. On Jan.31, 2020, the involved companies filed a brief arguing that their right to regulate content is essential and that they are private entities, not "state actors" and are therefore protected under the First Amendment.
On May 27, 2020, a three-judge panel of the U.S. Court of Appeals for D.C. unanimously affirmed the case’s dismissal. Notably, it was that same day that President Trump "accused the [Twitter} of 'completely stifling FREE SPEECH,'" pledging not to allow it to happen. Hours later, a four-page judgment affirmed the March 14, 2019 decision of the District Court and the appeal was denied.
Among other things, the judges agreed that the named platforms are not "state companies" and deemed deficient the claims that the platforms violated the D.C. Human Rights Act and the Sherman Antitrust Act. Loomer told UncoverDC that she felt the D.C. Circuit's opinion was negatively influenced by the President's statements earlier in the day.
On July 6, Klayman filed a petition with the U.S. Court of Appeals for D.C. to rehear the case en banc over Skype or Zoom, meaning that all 11 judges on the court would review the case rather than accept the decision by a panel of only three. Klayman argued that "there are issues of exceptional importance at stake", namely that the way free speech in the era of the internet is handled requires that the Court "recognize and adapt to changing times to ensure that the law keeps up with the reality."
He also argued that "the case is not just about Freedom Watch and Ms. Loomer, but all Americans who desire to exercise their rights of free speech, free from the illegal and anticompetitive practices of giant social media companies, who have restrained trade and who believe and act as if they are above the law. On August 5, 2020, the D.C. Circuit issued a per curiam (unanimous agreement) order denying Petitioners’ Petition for Rehearing En Banc.
An amended complaint, a petition for writ of certiorari that challenges the decisions by the lower courts was delivered to the Supreme court (United States Court of Appeals for the District of Columbia Circuit) on Jan. 4, 2021. The petition continues to argue that "denial to access to social media platforms can be the basis for constitutional violations."
The amended complaint is centered upon Respondents’ “conspiracy to intentionally and willfully suppress politically conservative content,”... and the resulting severe damages that this conspiracy has had on Freedom Watch and Ms. Loomer, both of whom are prominent conservative organizations/figures who rely on social media platforms to “to inform the public about [their]conservative advocacy and to raise the funds through donations to further its public advocacy and mission.
Klayman and Loomer argue, for example, that Facebook did not merely act as a platform but it censored conservative speech based on its own biases. The Petition cites Facebook's own apparent admission of its behavior:
"This is not us stepping back from news. This is us changing our relationship with publishers and emphasizing something that Facebook has never done before: It’s having a point of view, and it’s leaning into quality news. … We are, for the first time in the history of Facebook, taking a step to try to define what ‘quality news’ looks like and give that a boost." In other words, Loomer and Klayman allege that Facebook "is censoring news publishers based on its own internal biases."
Loomer has experienced censorship that has meaningfully impacted her ability to communicate and "perform her work as a journalist," allegedly as a result of her point of view. Loomer was banned permanently by Twitter in November of 2018 because of a tweet about Rep. Ilhan Omar (D-Minn.).
Loomer says she was banned "for telling the truth" when she said Omar was "pro sharia" and claimed that Omar supported female genital mutilation because she is Muslim. In response to the ban, she chained herself to the Manhattan headquarters of Twitter seen in this periscope video. In the video, she says she is fighting for "her country and for the millions of conservatives who are being censored and controlled and manipulated" by big tech corporations. She announced also her enjoinment with the Freedom Watch case that day.
During her campaign, she stated that she was the "most banned woman on the internet." Loomer has been banned from Facebook, Instagram and Twitter, "accused of using hate speech in posts about Muslims. The ban later expanded to Uber, Lyft, PayPal and Venmo," according to the Palm Beach Post. While running for office, she complained that her fundraising text messaging was shut down by Comcast for "dangerous content." Comcast acknowledged the problem but denied it had anything to do with the content of her messages.
Comcast's statement is below:
Screenshot/Breitbart/Comcast Statment Loomer
On Monday, Loomer informed UncoverDC that she was notified "by the Supreme Court that her case has been rescheduled for review on Feb. 26, which she thinks indicates that they are seriously considering taking [her] lawsuit against big tech. 368 cases were denied certioriri ..but [her] case still stands. Five of those were Trump cases."
