In August 2019, the Tulsi Gabbard campaign (“Tulsi Now, Inc.”) sued Google after Google temporarily suspended the campaign’s Adwords account after the first Democratic Presidential Candidate Debates.1
Earlier this week, the judge in the case threw out the lawsuit in a move that should have surprised absolutely no one.2 But, the ruling itself is good news for the Internet.
Background
The Tulsi campaign sued Google following a temporary suspension of the campaign’s account following the first debate. According to Google, the suspension was automatic and temporary. According to the Tulsi campaign, the suspension happened too coincidentally to a spike in organic searches to have been anything other than Google trying to censor her message and keep people from discovering more about her campaign.
It’s important to note that the Tulsi campaign did not allege that Google deindexed her site. They only refused to serve ads bought and paid for by the campaign. To draw an analogy, the campaign did the equivalent of suing a newspaper for not allowing them to purchase ad space while still covering campaign events and printing news stories about them on the front page.
The decision
I think it best to let the decision itself say what went wrong with this lawsuit by quoting the last two paragraphs:
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.
For the reasons provided above, Defendant’s motion to dismiss is GRANTED. Because these facts could never give rise to a First Amendment claim, Plaintiff’s complaint is dismissed with prejudice and without leave to amend.3
Why this is good
First of all, understand that this decision does not establish precedent. It’s a district court case. The 9th Circuit released a precedent-setting case on February 26 in Prager University,4 which is cited in this case. But, this case is, I think, even more explicit than Prager if for no other reason than this decision is limited to a First Amendment argument which we often hear in policy-related matters, which posits that the imposition of policies governing things like obtaining prior consent before mailing somehow involve a restriction on freedom of speech.
What this case reminds us of is that, no matter how big the provider, a non-governmental actor is a non-governmental actor so long as they are acting in their own best interest rather than at the direction of the government. Tulsi’s case is thrown out, and the campaign is barred from refiling their case precisely because there is no set of facts that can make a non-governmental actor into a governmental actor unless the government is actually involved.
Footnotes
- Carla Marinucci & Daniel Strauss, Tulsi Gabbard Sues Google over Post-Debate Ad Suspension, POLITICO (2019), https://www.politico.com/story/2019/07/25/tulsi-gabbard-sues-google-account-suspension-1435405 (last visited Mar 5, 2020). ↩︎
- Tulsi Now, Inc. v. Google, LLC, No. 2:19-cv-06444 (C.D. Cal. Mar. 3, 2020), ECF No. 31, https://www.courtlistener.com/docket/15967487/tulsi-now-inc-v-google-llc/ (last visited Mar 5, 2020). ↩︎
- Id., at 3. ↩︎
- Prager University v. Google Llc, 951 F. 3d 991 (9th Cir. 2020). ↩︎
