Tech backlash —
Lawsuit tells an “uncompelling conspiracy story,” one legal expert tells Ars.
Democratic presidential candidate Tulsi Gabbardsued Googleon Thursday. She argued that the search giant illegally blocked her from buying ads on Google’s platform for several hours on June 28—two days after she appeared in the first Democratic primary debate.
“Google plays favorites, with no warning, no transparency, and no accountability,” Gabbard wrote in her lawsuit. “Google’s arbitrary and capricious treatment of Gabbard’s campaign should raise concerns for policymakers everywhere about the company’s ability to use its dominance to impact political discourse.”
Google says the brief suspension was triggered by the company’s automated anti-fraud algorithms.
“We have automated systems that flag unusual activity on all advertiser accounts—including large spending changes—in order to prevent fraud and protect our customers,” a Google spokesperson said in an email to Ars. “In this case, our system triggered a suspension and the account was reinstated shortly thereafter. We are proud to offer ad products that help campaigns connect directly with voters, and we do so without bias toward any party or political ideology.”
Meanwhile, legal experts panned the complaint.
The lawsuit “has so many problems it’s hard to know where to begin,”argues attorney and writer Gabriel Malor.
Gabbard’s lawsuit also doesn’t impress Eric Goldman, a legal scholar at Santa Clara University. He described the lawsuit as “terrible” and argued that there was “a PR aspect to the filing.”
The complaint often reads like a campaign white paper
In recent months, Democratic presidential hopefuls have competed to be the most anti-Google candidate. Sen. Elizabeth Warren (D-Mass.) has called for breaking up Google—a positionshared by Bernie Sanders (I-Vt.). Gabbard has also endorsed Warren’s position, and suing Google is a way for her to underscore that view.
Conventional legal complaints focus narrowly on the facts necessary to prove the plaintiff’s argument—in this case that blocking Gabbard’s ads broke the law. By contrast, Gabbard’s complaint reads in places like a campaign white paper. It complains that the Federal Trade Commission failed to take stronger action after a 2012 investigation into Google’s business practices, that the Federal Communications Commission is rolling back network neutrality regulations under Trump, and that Facebook allegedly censored Warren campaign ads that called for the breakup of Facebook—issues that don’t seem relevant to determining whether Google broke the law.
Meanwhile, the complaint is light on evidence of Gabbard’s central claim—that Google deliberately sabotaged her campaign by blocking her from running ads.
Gabbard also offered no concrete evidence for her other claim—that Gmail routed her campaign emails to the spam folder at a higher rate than other presidential candidates.
“The complaint weaves a complicated conspiracy theory of how Google is out to get her, but the facts cited by the complaint told a thoroughly uncompelling conspiracy story,” Goldman tells Ars by email.
The lawsuit makes unconventional legal arguments
The first count of Gabbard’s lawsuit accuses Google of violating the First Amendment to the Constitution. The First Amendment bars governments from infringing freedom of speech—and generally gives private parties wide latitude to decide which content to publish.
But Gabbard argues that the First Amendment constrains Google because the company has dedicated “its platform for public use and public benefit, inviting the public to utilize Google as a forum for free speech. Google serves as a state actor by performing an exclusively and traditionally public function by regulating free speech within a public forum and helping to run elections.”
Gabbard’s complaint doesn’t cite any legal precedents backing up this rather expansive interpretation of the First Amendment, and there are a number of precedents pointing in the opposite direction. In thewords of legal scholar Jonathan Peters, “Courts so far have held that private online service providers are not state actors for First Amendment purposes.”
Gabriel Malor alsopoints outthat Gabbard will need to contend with Section 230 of the Communications Decency Act, which gives online service providers broad immunity for their decisions about whether to publish content on their platforms.