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
