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Trump Pledges Social Media Crackdown, D.C. Circuit Offers Its Version of Subtweet

A conservative group alleging its political viewpoints have been suppressed on Twitter and other platforms gets an interestingly-timed judgment.


Donald Trump isn't particularly happy that Twitter has added a fact-checking warning to his tweets about mail-in ballots. On Tuesday, the president accused the social media company of "completely stifling FREE SPEECH," pledging not to allow it to happen. On Wednesday morning, he followed that up by tweeting (of course) how "Republicans feel that Social Media Platforms totally silence conservative voices. We will strongly regulate, or close them down, before we can ever allow this to happen."

Top officials at the Justice Department have already expressed their opinion that it's not the government's job to regulate social media for political bias. But if Trump needs a further fact check, the District of Columbia Circuit Court of Appeals issued its own reminder within hours of Trump's tweets.

The D.C. Circuit wasn't explicitly responding to Trump but rather analyzing the dismissal of a lawsuit brought by Freedom Watch against Google, Facebook, Twitter and Apple.

Freedom Watch along with political commentator Laura Loomer complained that their conservative viewpoints were being suppressed. Unlike Trump, the plaintiffs did more than complain, not that it got them anywhere.

The D.C. Circuit, while affirming Freedom Watch's standing to bring suit, affirms dismissal of various claims.

"Freedom Watch's First Amendment claim fails because it does not adequately allege that the Platforms can violate the First Amendment," states the judgment. "In general, the First Amendment 'prohibits only governmental abridgment of speech.' Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921, 1928 (2019). Freedom Watch contends that, because the Platforms provide an important forum for speech, they are engaged in state action. But, under Halleck, 'a private entity who provides a forum for speech is not transformed by that fact alone into a state actor.'"

Trying to make it a competition issue fails as well. The appellate judges say that Freedom Watch has failed to show "an unlawful conspiracy, rather than lawful independent action by the different Platforms," adding that the "only anticompetitive conduct that Freedom Watch alleges (without supporting factual allegations) is that the Platforms conspired against it to suppress conservative content, but not that the Platforms conspired to acquire or maintain monopoly power."

Finally, there's a discrimination claim under the D.C. Human Rights Act.

"The Act prohibits discrimination on the basis of political affiliation in 'any place of public accommodations,'" continues the judgment. "Relying on a D.C. Court of Appeals case interpreting that statute, U.S. Jaycees v. Bloomfield, 434 A.2d 1379 (D.C. 1981), the district court concluded that only physical places within the District of Columbia qualify as 'places of public accommodation.' … The fact that other courts interpret another (though similar) statute differently is not a sufficient reason to deviate from Jaycees."

Here's the full judgment, not published because the D.C. Circuit doesn't even think any of what's above is particularly groundbreaking.