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Twitter, Facebook Win Appeal in Anticonservative-Bias Suit

Erik Larson

(Bloomberg) -- A federal appeals court rejected claims that tech giants Twitter Inc., Facebook Inc., Apple Inc. and Alphabet Inc.’s Google conspired to suppress conservative views online.

The U.S. Court of Appeals in Washington on Wednesday affirmed the dismissal of a lawsuit by the nonprofit group Freedom Watch and the right-wing YouTube personality Laura Loomer, who accused the companies of violating antitrust laws and the First Amendment in a coordinated political plot.

A three-judge panel held in a decision only four pages long that the organization didn’t provide enough evidence of an antitrust violation and that the companies aren’t state entities that can violate free speech rights.

“In general, the First Amendment ‘prohibits only governmental abridgment of speech,’” the judges wrote, quoting a previous decision.

Larry Klayman, a lawyer for Freedom Watch and Loomer, said in an interview that he’d file a petition to have the case reheard by an enlarged, “en banc” panel of the court’s judges and take the case to the Supreme Court if necessary. He said he believes the court chose Wednesday to issue its decision as a response to President Donald Trump’s threat to regulate or shutter social media companies for their alleged anticonservative bias.

Klayman said the brief decision gave “short shrift” to an important social issue.

Two of the three judges on the appellate panel were appointed by Republican presidents and one by a Democrat. The district court judge who dismissed the case, Trevor McFadden, was appointed by Trump.

The companies said in a joint brief in March that courts had repeatedly rejected claims that operating a widely used forum for speech by others “is a public function that amounts to state action.” Subjecting private companies to First Amendment requirements would chill efforts to police pornography and cyberbullying, they said.

“Private property owners, no matter their social importance, are not the government and are not subject to the constitutional constraints that limit governmental regulation of speech,” the companies said.

Read More: Trump Retweets Far-Right Activists in Attack on Social Media

The case is one of several filed by conservatives linking social media bans to the market dominance of big tech companies. The suit blamed an illegal conspiracy by the companies for a “complete halt” of Freedom Watch’s organizational growth and Loomer’s 30-day ban from multiple social media platforms after she said Representative Ilhan Omar, a Democrat from Minnesota, favors Sharia law and is “anti-Jewish.”

The D.C. Circuit’s decision comes after two unlikely allies weighed in on behalf of Freedom Watch and Loomer, asking the court not to affirm the dismissal of the suit without a full proceeding. The District of Columbia’s government and the Lawyers’ Committee for Civil Rights Under Law filed briefs challenging the trial judge’s conclusion that the D.C. Human Rights Act doesn’t ban discrimination online.

(Adds Klayman quote and context below it)

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