DC Appeals Court Affirms Sidelining Of Attorney Larry Klayman, Who Attempted To 'Change Sides' In Litigation

from the saving-yourself-by-setting-yourself-on-fire dept

Update: This piece has been updated for clarification after Klayman contested some of the points in the article that were based on the Appeals Court Opinion, but could have been worded more clearly.

Larry Klayman is a famous lawyer. Perhaps more infamous than famous at this point, but he's a lawyer in every jurisdiction he hasn't been sanctioned in yet. But fear not! Klayman will get disciplined wherever possible, if only to own the libs.

Own the libs, he may. But federal courts refused to be owned. And Klayman -- who I will freely admit was at least willing to mount a solid challenge to NSA surveillance -- will apparently have a bit more free time to tend to his herd of free-range libs (whom he apparently owns)… at least according to those willing to continue supporting his urge to blog post through it.

The DC Circuit Court of Appeals, on the other hand, does not care how many libs Klayman has owned through stunt litigation. Instead, it has expressed its displeasure as courts often do by imposing limits on Klayman's litigational escapades.

So, how owned are the libs? Let's ask the court [PDF]. (via Reason)

Suspended for ninety days by the District of Columbia Court of Appeals, Larry Klayman, a member of this court’s bar, seeks to avoid reciprocal discipline.

Bingo and/or bango:

For the reasons set forth below, we impose a reciprocal ninety-day suspension and refer this matter to the Committee on Admissions and Grievances for recommendations on whether further discipline is warranted.

[waits for laughter to die down]

How did Klayman manage to get this smacked down by a federal court? Let us count the ways. And by "the ways," I mean "holy shit, bro, what even the fuck."

A brief history: Larry Klayman founded Judicial Watch in 1994. Since then, he has engaged in plenty of litigation, not all of it misguided. When not defending people who don't have legitimate grievances, Klayman has also engaged in FOIA litigation and challenges of domestic surveillance. He's not a totally useless lawyer. But he's become more useless thanks to a Trump presidency and a rabid "conservative" base that has encouraged all of his worst instincts.

But this case has nothing to do with his political leanings or his inability to choose clients worthy of representation. The courts have cautioned Klayman before about changing sides when criticized by clients for his ineffective representation. In 2013, the DC Circuit handled a complaint against Judicial Watch brought by a former director of Judicial Watch's Miami office, who accused Judicial Watch of creating a "hostile work environment."

After this, Klayman left Judicial Watch and struck out on his own. Then he approached the court, informing it he was now representing the person who accused his former organization of creating a "hostile work environment" and asked the court to vacate its dismissal of the former director's lawsuit.

Then he decided to insert himself into another court case against his former organization -- again, without Judicial Watch's approval. Louise Benson sued Judicial Watch after her $15,000 donation towards the purchase of a building was swallowed by Judicial Watch and no building was ever secured.

Finally, Klayman represented Peter Paul in a case involving campaign fundraising via Judicial Watch. After Klayman left Judicial Watch, the organization decided to stop representing Peter Paul. But that didn't stop Klayman, who decided he could continue to represent Paul, even without the permission of his former employer, Judicial Watch.

This string of events ended with Klayman being suspended by the DC Circuit for ninety days. The court also ordered Klayman to attend a legal education class on conflicts of interest.

Klayman appealed, apparently suggesting the court system should allow him to continue to engage in such conflicts of interest.

The Appeals Court disagrees. There's nothing in Klayman's arguments that demand a reversal of any disciplinary steps taken against him.

This argument is entirely without merit. Even though Mr. Klayman owed a duty of zealous representation to Cobas, Benson, and Paul, Rule 1.9 is absolute. Absent informed consent from Judicial Watch, Mr. Klayman may not “represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of” Judicial Watch. As Judge Lamberth put it, “Rule 1.9 provides no exception to its prohibition on successive representation.”

Next, Mr. Klayman quotes at length from a portion of the Rotunda letter that relies heavily on the Supreme Court’s decision in Maples v. Thomas, 565 U.S. 266 (2012). There, the Court concluded that counsel’s failure to properly withdraw from representation of a death row inmate excused the inmate’s failure to meet a crucial filing deadline because counsel’s effective abandonment was an “extraordinary circumstance.” See Maples, 565 U.S. at 289. From this, Rotunda concludes that “it [was] reasonable and understandable that Mr. Klayman believed that he had an ethical obligation . . . to zealously and diligently represent” Cobas, Benson, and Paul. Br. 7 (internal quotation marks omitted). Maples, however, has nothing whatsoever to do with this case, as the lawyers involved there were not representing a client whose interests were adverse to a former client. Maples is about client abandonment, not switching sides.

A house divided against itself by an interloping legal "representative" cannot stand.

Mr. Klayman’s remaining arguments are equally without merit. He invokes the doctrine of laches but fails to cite a case from either this circuit or the D.C. Court of Appeals that applies laches to disciplinary proceedings, nor are we aware of one.

This is not the sort of thing you want to hear from a federal court… unless you've convinced yourself this is a compliment.

In a self-styled “Supplement to Respondent’s Initial Brief,” filed just after oral argument, Mr. Klayman told us that “[t]he reason that he did not immediately inform” this court of his suspension “was because” his petitions for rehearing and rehearing en banc of his suspension “were pending [in the D.C. Court of Appeals] at the time and Mr. Klayman believed that he would be successful in obtaining a favorable ruling.” [...] This is an astonishing argument.

Enjoy the pejorative, Larry.

The suspension survives Klayman's "astonishing" attempt to overturn it. Trying to "change sides" in a lawsuit never plays well in court, no matter what court system level this tactic is deployed in. The court quotes a lower court judge noting that Klayman's activity was "the very type of 'changing of sides in the matter' forbidden" by local rules. Klayman is relegated to sidelines in the DC Circuit, a place he has historically done a great deal of business.

Filed Under: larry klayman

Judge Dismisses Sheriff Joe Arpaio's Defamation Lawsuit Against The New York Times

from the next-time,-bring-facts,-rather-than-a-stunt-lawyer dept

Attorney Larry Klayman is building himself quite the portfolio of high-profile losses. He's well on his way to seeing his lawsuit on behalf of Judge Roy Moore tossed by an irritated court. His lawsuit against social media companies for their banning of noted tire slash expert Laura Loomer has already been dismissed.

Well on his way to having his law license suspended, Klayman has just seen another one of his ridiculous lawsuits tossed by a federal court. [h/t Adam Steinbaugh]

This one claimed three publications -- including the New York Times -- besmirched the previously-unsullied reputation of (ex) Sheriff Joe Arpaio, preventing him from successfully running for Senator.

Reciting the litany of terrible things Arpaio had done over his career, the New York Times pointed out Arpaio is pretty much defamation-proof. Even though the Times screwed up by calling him a convicted felon rather than a convicted misdemeanant, everything else written about him was true or protected opinion.

The court points out Arpaio's Klayman-authored complaint is a skeleton partially garbed in useless invective. The decision [PDF] is concise, running only 11 pages, but it still provides enough space to completely dismantle the former sheriff's arguments.

Even with the court siding with the plaintiff at this stage of the pleadings, there's not enough in Arpaio's complaint to push this past the NYT's motion to dismiss. When you come to court, you need to bring facts. That's not exactly Klayman's strong suit.

Plaintiff’s Complaint comes nowhere close to pleading sufficient facts that plausibly establish “actual malice.” Indeed, Plaintiff pleads no facts at all. Instead, throughout his Complaint, he does no more than recite the applicable legal standard.

The court points out that copy-pasting legal definitions into a lawsuit and appending the plaintiff's name to them does not actually create actionable torts out of thin air. Nor does claiming the court cannot dismiss a lawsuit until the plaintiff thinks it's OK for the lawsuit to be dismissed.

[P]laintiff argues that the issue of malice “is a question of fact that cannot properly be resolved on a motion to dismiss.” See Pl.’s Opp’n at 10. Not so. The Supreme Court in Iqbal expressly held that the pleading of malice is subject to the “strictures of Rule 8.” 556 U.S. at 686–87. Thus, a plaintiff that “plead[s] the bare elements of his cause of action . . . [cannot] expect his complaint to survive a motion to dismiss.” Id. Courts in this District have dismissed defamation claims for failing to plead sufficient facts supporting the element of actual malice

It also points out that material better suited for heated blog posts shouldn't be used in place of actual arguments.

Plaintiff argues that actual malice can be inferred because “The New York Times’ political partisanship and liberal bias know no reasonable bounds . . .” Pl.’s Opp’n at 12. But Plaintiff offers no facts in his Complaint to support this proposition. The three news articles that he cites in his opposition brief do not demonstrate the type of animus that Plaintiff claims. See id. at 15 n.3. In any event, even if The New York Times takes positions that could be perceived as unfavorably disposed towards Plaintiff, the D.C. Circuit has observed that “[i]t would be sadly ironic for judges in our adversarial system to conclude . . . that the mere taking of an adversarial stance is antithetical to the truthful presentation of facts.” Tavoulareas v. Piro, 817 F.2d 762, 795 (D.C. Cir. 1987). Plaintiff’s unadorned claim of animus and bias cannot save his deficient pleading.

Also: saying mean things about people is not defamation, nor is it evidence of actual malice.

Plaintiff’s objection to certain words that he considers incendiary—such as “sadist,” “medieval,” “bare-knuckled,” “disgrace,” and “true American villain”—is misplaced. They are too imprecise or subjective to be verifiably false facts.

Yep, still protected opinion -- something Arpaio might have figured out by reading the article before suing about it.

That these words appeared in a column in the Opinions section of The New York Times only underscores that point.

Because Arpaio can't show actual malice, his claims of false light fail as well. So do his claims of tortious interference for much the same reason: the plaintiff needs to show, not tell. Nothing in the lawsuit provides a basis for the interference claims, which appear to be mostly boilerplate recitation of legal standards.

This will certainly be appealed if Klayman can do it before he's disbarred. But it won't change the outcome. What it will do, however, is cost the defendants more money. The NYT filed an anti-SLAPP motion but the court rejects it, stating its earlier opinion in another defamation case, where it decided the federal court in DC cannot apply the district's anti-SLAPP law. Add this one to the pile of reasons why Congress needs to enact a federal anti-SLAPP law.

Filed Under: 1st amendment, defamation, free speech, joe arpaio, larry klayman
Companies: ny times

Laura Loomer Files Defamation Suit Against Facebook For Calling Her 'Dangerous' When Booting Her From The Platform

from the [makes-popcorn-but-not-a-whole-lot-of-it] dept

Having failed to convince a federal court that multiple social media services are engaged in a First Amendment-thwarting conspiracy against far right sideshows like Laura Loomer, Larry Klayman is back with another federal lawsuit featuring his new favorite plaintiff. It's a defamation lawsuit that attempts to portray moderation explanations by Facebook as malicious statements meant to destroy Loomer's reputation.

Perhaps the best way to explain this lawsuit is to let Larry Klayman explain it in his own words:

Today, Larry Klayman, the founder of Freedom Watch and a former federal prosecutor announced the filing of a defamation lawsuit by conservative investigative journalist Laura Loomer against Facebook. The complaint, filed in the U.S. District Court for the Southern District of Florida (Case No. 9:19-cv-80893), alleges that Facebook and its wholly owned sister company Instagram, in banning Ms. Loomer from the social media sites, maliciously defamed her by publishing that she is a "dangerous individual" and a domestic Jewish terrorist.

Seems pretty straightforward, although it's difficult to see anything anyone says about Laura Loomer damaging her reputation. Klayman's press release says he's demanding 5% of Facebook's net worth for his client -- bringing the theoretical payday to over $3 billion. Saying this is "standard" for calculating punitive damages doesn't make this a standard damages request.

But there's more. Klayman is not content to let the facts do the talking. His press release offers plenty of speculation as well. And it's not just regular speculation. It's speculation riddled with spelling and grammatical errors. Never write angry, folks.

Loomer has been a strong advocate not just for conservative causes, but also to stem the growing anti-Semitism in Congress and threat of Islamic terrorism. In this regard, she was banned by Facebook and Instagram by simply revealing the truth. Facebook and its CEO and founder Jeff Zuckerberg is a self-hating leftist Jew sympathetic of Islamic extremism. Klayman sued Zuckerberg and Facebook years ago for allegedly furthering a Palestinian Infitada calling for and which resulted in the death of Jews.

Have fun with that paragraph, commenters. It has since been corrected on Klayman's site, but those errors will live on forever at every website that publishes unaltered press releases as "news."

Anyway, the lawsuit is standard Klayman stuff, complete with an unsympathetic plaintiff. Unsympathetic plaintiffs need their rights defended and their grievances addressed, but it's tough to claim reputational damage when you're a self-sabotaging font of ignorance and bigotry.

The filing [PDF] claims Facebook defamed Loomer when it banned her from the platform. The initial statement by Facebook isn't defamatory and is merely an expression of its opinion of her dubious contributions to the public discourse.

In a statement released and published widely to the public in this district, nationally and internationally, Defendant Facebook explained their purported and false justification behind Ms. Loomer's ban:

We've always banned individuals or organizations that promote or engage in violence and hate, regardless of ideology. The process for evaluating potential violators is extensive and it is what led us to our decision to remove these accounts today.

In other words, Facebook moderators believe Laura Loomer is a promoter or perpetrator of violence and/or hate and had violated Facebook's rules once too often. Therefore, her accounts were banned. This is a statement of opinion that Klayman is attempting to portray as an unjustified and deliberate misrepresentation of Loomer and her posts.

In issuing the ban against Ms. Loomer, Defendant Facebook and its sister publication Instagram publicly designated her as “dangerous,” which publication was widely disseminated in this district, nationally and internationally.

Facebook offered more clarification on this moderation decision, which is also presented as defamatory, even though it isn't.

A spokesperson for Defendant Facebook represented and published that:

… such factors [for designating an individual as “dangerous”] include whether the person or organization has ever called for violence against individuals based on race, ethnicity, or national origin; whether the person has been identified with a hateful ideology; whether they use hate speech or slurs in their about section on their social media profiles; and whether they have had pages or groups removed from Facebook for violating hate speech rules.

While this statement appears pretty straightforward, Klayman clouds the issue by digging into Facebook's Community Standards. In doing so, Klayman attempts to put words into Facebook's mouth.

According to Defendant Facebook’s own posted Community Standards, “Dangerous Individuals and Organizations” are defined as “organizations or individuals involved in the following: Terrorist activity, Organized hate, Mass or serial murder, Human trafficking, [or] Organized violence or criminal activity.”

Ms. Loomer does not fall, or come close to falling, within any of the defined groups set forth by Defendant Facebook.

Facebook did not say Loomer was a dangerous individual as defined by the Community Standards. It only stated why it had banned her from the platform, and gave its reasons for doing so -- none of which included portraying Loomer as a violent criminal.

In defense of Loomer and to counter Facebook's appraisal of Loomer, Klayman mysteriously offers up a random tweet by his client.

In fact, Ms. Loomer uses social media to call out anti-Semitism, Islamic terrorism, political violence, and violence against homosexuals, as just one example once having tweeted:

Ilhan is pro Sharia Ilhan is pro- FGM Under Sharia homosexuals are oppressed & killed. Women are abused & forced to wear the hijab. Ilhan is anti Jewish.

Ok then. Because of this assessment and banning, Facebook has apparently done $3 billion in damage to Loomer's otherwise unsullied reputation.

Plaintiff Loomer has been severely harmed and damaged by these and other false and misleading statements by Defendant Facebook, because they subjected her to hatred, distrust, ridicule, contempt, and disgrace, and the threat of severe bodily injury or death by those who are now lead to believe that she is dangerous and a domestic terrorist against Muslims in particular. Muslims and other extremists thus are now prone to retaliate against her and her life is in mortal danger.

Plaintiff Loomer has been severely damaged by these false and misleading statements because they damaged Plaintiff Loomer’s reputation and good will and severely harmed financially in her profession and business as a conservative investigative journalist, as well as personally.

While I don't doubt that Loomer being banned from Facebook and Instagram had a negative effect on Loomer's various schemes and self-promotion, it's a stretch to say it caused $3 billion in damage to her reputation and her livelihood. The lawsuit says Loomer's been subjected to "hatred, distrust, ridicule, content, and disgrace" since Facebook booted her, but come on: Loomer was being "subjected" to all of that long before Facebook pulled the plug.

Facebook is free to make whatever moderation decisions it wants. At least that's not what's being sued over this time. But trying to construe statements accompanying moderation decisions as defamation is going to be a tough sell. It needs a good salesperson to pitch it to federal judges. Unfortunately, Larry Klayman is the kind of salesperson who tends to get uninvited long before the product demonstration can even begin.

Filed Under: content moderation, defamation, jeff zuckerberg, larry klayman, laura loomer, mark zuckerberg, section 230
Companies: facebook

Unsurprisingly, Larry Klayman's Veiled Threats And Insulting Of Judges Isn't Helping Roy Moore's $95 Million Defamation Lawsuit

from the Klayman-&-Moore-Show-heads-to-Manhattan dept

Roy Moore, alleged sexual abuser of teens and apparent front runner for US Senate seat, continues to sue entertainer Sacha Baron Cohen for ruining his pristine reputation. Moore was duped into appearing in a segment with Cohen in which Cohen pretended to have acquired a "pedophile detector" crafted by the Israeli Army. During the bit, the alarm beeped twice in the vicinity of Moore.

According to Moore's own lawsuit, this subterfuge and subsequent beeping caused him $95 million in reputational damage because it gave viewers the impression he was, and I quote, "a sex offender." Unfortunately for Moore, this is an impression many viewers likely already had, thanks to an extended news cycle featuring a line of women accusing Moore of engaging in inappropriate behavior with them when they were teens.

Even more unfortunately, Moore has decided to hire Larry Klayman as his lawyer. I suppose if you're going to lose, you may as well lose as loudly as possible. The lawsuit is far from over, though. So, that's going to give Moore the opportunity to pay Klayman repeatedly for irritating presiding judges and otherwise fail to advance Moore's case.

Right now, there's an argument over jurisdiction. Moore wants the lawsuit to remain in the Washington DC court, arguing that the "injury" occurred in this location since that's where the bit featuring Moore was recorded. Cohen wants it moved to Manhattan, since that's where Moore is legally bound to bring a lawsuit according to the agreement he signed with the defendants (Cohen, CBS, and Showtime) prior to taping.

The judge has decided to move the lawsuit to Manhattan despite Klayman's protests to the contrary. Klayman and Moore were likely going to lose this jurisdictional decision anyway, but Klayman made sure the loss would leave an impression on both the judge in Washington DC and the judges awaiting assignment of the incoming case. Zoe Tillman has the details at BuzzFeed.

Monday's hearing didn't start well for Moore, who was sitting in court next to his wife, Kayla Moore, also a plaintiff in the lawsuit. Klayman, Moore's attorney, introduced his client as "chief justice," the title Moore held when he served on the Alabama Supreme Court. [Judge] Hogan noted Moore was a "former" judge, however, and had Klayman acknowledge Moore was no longer on the bench. Moore was removed twice from the state Supreme Court before running for Sessions' seat.

Klayman had another awkward exchange with the judge later in the hearing. Hogan asked Klayman about an argument he'd made in a brief about Cohen and Showtime preferring New York because they were more likely to get a "left-leaning" judge there. Klayman initially said he didn't believe he used that term, but walked that back when Hogan cited the page number where it appeared. Federal judges tend to bristle at arguments about their political leanings, perceived or real.

Representing a pretty much defamation-proof client in a $95 million defamation lawsuit can't be easy. But Klayman is insisting on making it as difficult as possible for both him and his client.

In what appeared to be a veiled threat, Klayman told the judge that but for the fact that Moore was a "gentleman," Cohen wouldn't be walking around now. Asked to clarify what that meant after the hearing, Klayman told BuzzFeed News, "He would have been punched out on the spot."

Yes, that's what everyone's always saying about Roy Moore: he's a gentleman. In this case, though, he's managing to invert an old adage about legal representation. It's said the man who represents himself has a fool for a client. In this case, the fools are on both ends of the equation.

Filed Under: defamation, larry klayman, roy morre, sacha baron cohen, satire, venue

Court Dismissed Lawsuit Brought Against Social Media Companies Alleging An Anti-Conservative Conspiracy

from the lawsuits-are-the-new-tinfoil dept

Alt-right sideshows Laura Loomer and Larry Klayman sued Twitter, Facebook, Google, and Apple for [checks filing] participating in a government-enabled conspiracy to deplatform Freedom Watch/Loomer in order to further a leftist agenda, etc. etc. ad nauseum. Their complaint alleged violations of the Sherman Act, DC's public accommodation law, and the First Amendment. In support of these allegations, the plaintiffs offered vague theories about "public platforms" and some misreadings of pertinent court precedent. (via Eric Goldman)

After a round of motions, the court has ruled in favor of everyone being sued. The decision [PDF] makes it clear none of the arguments made by the plaintiffs hold water, much less achieve complete coherence. The only thing the court agrees with is that Loomer and Freedom Watch have standing to bring the suit. But standing is only worth something when your arguments have merit.

While they have established standing, the Plaintiffs have failed to state viable legal claims. Consider first their Sherman Act arguments. Section 1 of the Sherman Act states that “[e]very contract, combination . . . , or conspiracy, in restraint of trade or commerce among the 7 several States, or with foreign nations, is declared to be illegal.” 15 U.S.C. § 1. “Independent action is not prescribed” by § 1. Monsanto Co. v. Spray-Rite Service Corp., 465 U.S. 752, 760 (1984). So a valid claim must allege that the Platforms “had a conscious commitment to a common scheme designed to achieve an unlawful objective.” Id. at 764. The Plaintiffs’ claim fails to do this.

True, the Amended Complaint repeatedly states that the Platforms have engaged in a conspiracy or illegal agreement. See, e.g., Am. Compl. 4, 5, 12, 17. But it offers only these conclusory statements to suggest the existence of such an agreement. It includes no allegations, for example, that any of the Platforms met or otherwise communicated an intent to collectively suppress conservative content.

A conspiracy requires the participation of conspirators. But some of the alleged conspirators still played ball with the plaintiffs, which undercuts the conspiracy needed to sufficiently allege antitrust violations.

The Plaintiffs also suggest that the Platforms “have engaged in ‘conscious parallelism’ and in concert mimicked each others’ refusal to deal with Freedom Watch and Ms. Loomer.” Am. Compl. 21. But Freedom Watch admits that it “has and still does pay Google and YouTube, Facebook and the other Defendants for services.” Id. at 11. This admission contradicts assertions of a coordinated “refusal to deal” with the Plaintiffs.

The complaint fares no better when dealing with the second antitrust allegation -- the supposed "monopoly" power of the [checks notes] four defendants being sued. As the court points out, the plaintiffs could have brought some data to their legal fight. Instead, they chose to bring conclusory statements and assertions about "leftist agendas."

[T]he Plaintiffs offer no market share data for any of the Platforms in either the local or worldwide markets for media and news publications. Instead, they make claims about the “social network global market,” the “social networking advertising revenue” market, the “digital ad revenues” market, and the “mobile ad market.” Am. Compl. 18. And though the Amended Complaint states that “59% of Twitter users get their news through the Twitter platform” and that “48% of all American adults [get] their news from Facebook,” it offers no support for the notion that either firm has achieved or tried to achieve monopolization of the nationwide media and news publications market.

The allegations claiming that kicking Loomer/Freedom Watch violated DC's Human Rights Act is just as ridiculous. The court points out the law refers only to physical public spaces and it's not willing to re-litigate a DC circuit opinion and/or rewrite local law on behalf of the plaintiffs.

Finally, the court addresses the most ridiculous of all the lawsuit's assertion: that moderation decisions by social media services somehow violated the plaintiffs' First Amendment rights. The plaintiffs cite the Packingham decision by the Supreme Court, completely misreading that decision's findings. In that case, the court said the government couldn't prevent people from accessing internet services. Loomer and Klayman pretend it actually said platforms can't ban people from accessing their platforms. The district court points out the distinction the plaintiffs are ignoring.

True, in Packingham, the Supreme Court recognized that Facebook and Twitter are among the “most important places (in a spatial sense) for the exchange of views” in society today. 137 S. Ct. at 1735. But the case involved a challenge to a state law that limited the speech rights of certain criminals on these platforms. Id. at 1738. It did not create a new cause of action against a private entity for an alleged First Amendment violation.

The second citation from the plaintiffs isn't any better, and the court again restates the obvious: moderation decisions by private companies are not actions taken by government entities, no matter how many users the platforms accommodate.

[T]he Plaintiffs here allege no nexus between the Platforms’ actions and a function traditionally reserved exclusively to the state. Nor do they contend that the Platforms were designated by the state to perform a governmental operation. Instead, the Amended Complaint focuses on the Platforms’ alleged suppression of conservative political content. It details, for instance, the seemingly disparate treatment of conservative news publishers on Facebook and of conservative commentators on Twitter. Am. Compl. 4-5. But while selective censorship of the kind alleged by the Plaintiffs may be antithetical to the American tradition of freedom of speech, it is not actionable under the First Amendment unless perpetrated by a state actor. Thus, their claim must be dismissed.

This will surely be appealed. But the outcome will be the same. Actions by private companies can't violate rights and the existence of multiple social media platforms simultaneously preemptively defeats most antitrust allegations.

Some conservatives are convinced there's a leftist agenda being played out in social media. But rather than fight it with more speech, they're trying to bring the government in to fix these perceived problems. Whatever floats your speech boat, but remember, any "fixes" you get will remain in place for years -- even if the perceived pendulum swings the other way. The rules that "level the playing field" will come back to bite these agitators in their asses if they ever manage to talk a court or a bunch of legislators into taking their bad ideas seriously.

Filed Under: antitrust, bias, conservative bias, first amendment, free speech, larry klayman, laura loomer, monopoly, social media
Companies: apple, facebook, google, twitter

And Here Come The Completely Ridiculous Lawsuits Over Internet Company 'Bias'

from the these-won't-go-far dept

It was only a matter of time. Given the incorrect and misleading claims of "political bias" in social media moderation/search recently, you knew someone was going to file a lawsuit, and not surprisingly, the first to take the plunge is serial litigant Larry Klayman and his "Freedom Watch" organization. Of course, we've had a few similar lawsuits test the waters, all of which have failed miserably -- from Dennis Prager falsely claiming that YouTube was demonetizing his videos due to his political views (which was not even close to true) to Jared Taylor suing, claiming political bias in Twitter kicking him off its platform.

Klayman's complaint, however, adds layers of nuttiness upon those previous attempts. First off, he's hoping to turn it into a class action lawsuit for "all politically conservative organizations, entities and/or individuals who... have experienced illegal suppression and/or censorship." Second, he's filing it against four companies at once: Google, Facebook, Twitter and Apple. Once again, I thought that conservatives believed in free markets and were against the fairness doctrine which (1) is not currently law and (2) even when it was, only applied to broadcasts over the airwaves. Yet, Klayman pretends that there's some sort of quasi fairness doctrine, and also takes every possible rumor or claim of political bias in tech, no matter how incorrect, and assumes it's true for the purpose of the case.

Literally the case dredges up a ton of disproven articles claiming bias where none has been shown to actually exist. It takes things out of context. For example, it puts tremendous weight on the long-ago debunked story of Facebook's "trending stories" being moderated to block conservatives, and mixes that with Facebook's totally unrelated attempt to increase quality of news, to argue it's proof that Facebook censors conservatives. That's ridiculous. First of all, the Gawker article, claiming Facebook bias in trending news, was later shown to be misleading and just the incorrect claims of a disgruntled ex-employee (and trending stories was a feature that few people even used anyway). The attempts to increase quality is not a sign of political bias, it's a recognition of the fact that choosing what is "quality" involves ranking stuff. That's how ranking works. But to say that's evidence of political bias is complete bullshit. The lawsuit also uses PragerU as an example, even though YouTube showed pretty damn clearly that many fewer of PragerU's videos were demonetized than well-known "liberal-leaning" accounts. But that doesn't stop Klayman.

As for the "harm" to Klayman? Apparently, he believes it's against the law for his fanbase to have stopped growing. Really. It must be a conspiracy against him.

Since Defendants, each and every one of them, have begun their conspiracy to intentionally and willfully, and/or acting in concerted parallel fashion, to suppress conservative content and refuse to deal with Freedom Watch, Freedom Watch’s growth on these platforms has come to a complete halt, and its audience base and revenue generated has either plateaued or diminished.

For instance, the number of subscribers to Freedom Watch’s YouTube channel has remained static especially over the last six months, after years of steady grown, which simply cannot be a coincidence given the facts set forth in the previous section.

Wow. Watch out world. Apparently, any time someone's traffic decreases, you can just sue the sites that used to give you traffic according to Freedom Watch.

Also, it wouldn't be a Larry Klayman lawsuit if there weren't a few good conspiracy theories tossed in for fun. First he claims all these companies are colluding against him, and then reveals it's all part of the evil "leftist agenda" to overthrow the President.

Defendants’ agreement has a plainly anti-competitive effect and has no rational economic justification, as they are willing to lose revenue from conservative organizations and individuals like Freedom Watch and those similarly situated to further their leftist agenda and designs to effectively overthrow President Trump and his administration and have installed leftist government in this district and the 50 states.

Citation needed.

There's more silliness in the lawsuit. It quotes Mark Zuckerberg's testimony before the Senate, claiming that Zuckerberg "struggled to name a single competitor," which the very transcript he included shows is not true. The testimony involved Zuckerberg pointing out accurately that the company had many competitors, but that those were for different pieces of Facebook's business, rather than one competitor who did everything like Facebook -- and specifically named a bunch of companies that compete in different ways with Facebook.

It also claims that all of these companies are "quasi-public spaces." It's kind of incredible to think that some conservatives are now apparently against companies having First Amendment rights and believe in nationalizing their platforms. I'm curious if they now support tossing out the Citizens United Supreme Court ruling, because part of that ruling is that political bias is protected by the First Amendment.

This lawsuit has no chance and has a high likelihood of being laughed out of court, but in case you were wondering the actual claims, he argues that the companies are violating antitrust laws "in restraint of trade" (namely, his businesses using their platforms), anticompetitive behavior (he claims that FreedomWorks is a competitor to all of the platforms), discrimination, and (most incredibly) a violation of the First Amendment. Apparently, he does not see the irony in claiming that these platforms -- which have strong First Amendment rights to determine what content they show on their own platforms -- are actually violating his First Amendment rights in not giving him enough YouTube subscribers. How? Because they should be nationalized or something:

Defendants act as quasi-state actors because they regulate their public platforms, thereby regulating free speech within their public forums, Google/YouTube, Facebook, and Twitter, Apple, Instagram as well as the other social media companies or entities.

Defendants, each and every one of them acting in concert, have deprived Freedom Watch and those similarly situated of its constitutional rights by censoring its content for purely political reasons. Defendants’ censorship is arbitrary and capricious, and is purely viewpoint based.

The use of "arbitrary and capricious" is bizarre, seeing as that's the standard used in administrative law, concerning government body rulemaking is unfair. But, once again, none of these companies are government bodies.

Oh, and in case you're wondering, he's asking for... $1 billion. Because, why not?

Filed Under: antitrust, first amendment, free speech, larry klayman, political bias
Companies: apple, facebook, freedom watch, google, twitter, youtube