The unanimous court decision from a three-judge panel runs to only four pages, but is dismissive of a wide range of legal claims some conservatives and liberals have leveled at social media firms in recent months.
The appeals court judges said that, despite the companies’ power, they cannot violate the First Amendment because it regulates only governments, not the private sector.
“Freedom Watch’s First Amendment claim fails because it does not adequately allege that the Platforms can violate the First Amendment. In general, the First Amendment ‘prohibits only governmental abridgment of speech,’” the court said.
“Freedom Watch contends that, because the Platforms provide an important forum for speech, they are engaged in state action. But … ‘a private entity who provides a forum for speech is not transformed by that fact alone into a state actor.’ … Freedom Watch fails to point to additional facts indicating that these Platforms are engaged in state action and thus fails to state a viable First Amendment claim,” the judges added.
The court decision was released as Trump mounted an intense flurry of attacks against Twitter, after the social-media messaging firm took the unprecedented step of attaching fact-checks to some of his tweets about potential fraud in vote-by-mail programs being rolled out to address the coronavirus pandemic.
“@Twitter is now interfering in the 2020 Presidential Election. They are saying my statement on Mail-In Ballots, which will lead to massive corruption and fraud, is incorrect,” Trump complained Tuesday on that very platform.
He added in a tweet Wednesday: “Republicans feel that Social Media Platforms totally silence conservatives voices. We will strongly regulate, or close them down, before we can ever allow this to happen.”
Trump’s aides have been vague about his plans, but one option reportedly under consideration is a blue-ribbon panel to examine alleged unfair treatment of conservatives by social media platforms.
The Justice Department is also conducting an investigation into whether social-media companies’ policies raise antitrust issues. The new D.C. Circuit ruling rejected antitrust claims raised by Freedom Watch and Loomer, but doesn’t seem to preclude others bringing similar claims with different facts.
While the appeals court designated its new decision as an unpublished “judgment” rather than the customary full opinion, it nonetheless grappled with some thorny issues, including whether a local District of Columbia anti-discrimination law applies to online businesses based elsewhere. One provision in the law prohibits “public accommodations” from discriminating on the basis of political affiliation.
The district court judge who handled the suit, Trump appointee Trevor McFadden, held that law didn’t cover the companies’ virtual, digital platforms. The notion of excluding online businesses from anti-discrimination protections so worried the District government that D.C. Attorney General Karl Racine weighed in with a friend-of-the-court brief asking the D.C. Circuit to reject that position.
But the appeals court judges — Clinton appointee Judith Rogers, George W. Bush appointee Thomas Griffith, and George H.W. Bush appointee Raymond Randolph — said a 1981 decision from another court limited the law to businesses operating in a “particular place” somewhere in Washington.
“The D.C. Court of Appeals has interpreted this statute and at minimum, its interpretation is a reasonable one. We have no basis to believe it would reach a different conclusion on reconsideration,” the D.C. Circuit judges wrote.
Freedom Watch founder Larry Klayman called the decision “outrageous” and vowed to press on with the case.
“We’re going to obviously move for en banc reconsideration and go to the Supremes, if we have to,” he said.
Klayman said the timing of the decision seemed spurred by Trump lashing out against Twitter in recent days. “Obviously, it’s a very political issue. … None of those judges particularly care for Trump. It looked like they rushed the decision off their desk to make a point.”
The longtime legal gadfly blasted as “outrageous” the court’s ruling that online ventures are beyond the reach of the D.C. Human Rights Act. “D.C. law can’t just apply if you’re standing in Farragut Square,” he said.
Racine’s office did not immediately respond to a request for comment on the appeals court decision.