Court Dismisses Tulsi Gabbard’s “First Amendment” Lawsuit Against Google; Clarifies That Google is Not the Government

A California federal court recently dismissed (with prejudice and wthout leave to amend) Tulsi Gabbard’s campaign’s lawsuit against Google. In this case, captioned Tulsi Now, Inc. v. Google, LLC et al., 2:19-cv-06444-SVW-RAO (C.D. Cal. March 3, 2020), plaintiff primarily asserts that Google violated plaintiff’s First Amendment rights by briefly suspending its verified political advertising account for several hours shortly after a democratic primary debate.

Initially, the court summarized basic principles of First Amendment law:

The First Amendment provides: “Congress shall make no law . . . abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble . . . .” U.S. Const. amend. I. “The First Amendment, applied to states through the Fourteenth Amendment, prohibits laws abridging the freedom of speech.” Animal Legal Def. Fund v. Wasden, 878 F.3d 1184, 1193 (9th Cir. 2018) (internal quotation omitted). In effect, “the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” …

Google is not now, nor (to the Court’s knowledge) has it ever been, an arm of the United States government. “The text and original meaning of those Amendments, as well as this Court’s longstanding precedents, establish that the Free Speech Clause prohibits only governmental abridgment of speech. The Free Speech Clause does not prohibit private abridgment of speech.” Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921, 1926 (2019) (emphasis in original); see Prager Univ., 2020 WL
913661, at *2 (“The Free Speech Clause of the First Amendment prohibits the government—not a private party—from abridging speech.”).

Here, plaintiff asserts that Google has become a state actor because it provides advertising services surrounding the 2020 presidential election – i.e., “that, by regulating political advertising on its own platform , Google exercised the traditional government function of regulating elections.”

The court rejected this argument, noting that plaintiff failed to establish “how Google’s regulation of its own platform is in any way equivalent to a government regulation of an election” and that “[t]o the extent Google ‘regulates’ anything, it regulates its own private speech and platform.”

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