Tulsi Sues Google

Yesterday, presidential candidate Tulsi Gabbard’s campaign sued Google, alleging that the company wrongly suspended the campaign’s Google Ads account during the critical hours following the first Democratic debate. The Complaint is venued in federal court in central California.

Its allegations are explosive. Gabbard accuses Google of trying to sabotage her presidential campaign because she, like Elizabeth Warren, has argued in favor of reining in the tech monopolies, including Google. Here are some of the Complaint’s allegations:

4. In the June 26-27, 2019 Democratic Party presidential debates, tens of millions of Americans got to hear Tulsi Gabbard’s voice for the first time. And people liked what they heard: Gabbard quickly became the most searched-for Democratic presidential candidate on June 27-28. In the crucial post-debate period—a time when presidential candidates receive outsize interest, engagement, and donations—Americans around the country wanted to hear more from Tulsi Gabbard.
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7. On June 28, 2019—at the height of Gabbard’s popularity among Internet searchers in the immediate hours after the debate ended, and in the thick of the critical post-debate period (when television viewers, radio listeners, newspaper readers, and millions of other Americans are discussing and searching for presidential candidates), Google suspended Tulsi’s Google Ads account without warning.

8. For hours, as millions of Americans searched Google for information about Tulsi, and as Tulsi was trying, through Google, to speak to them, her Google Ads account was arbitrarily and forcibly taken offline. Throughout this period, the Campaign worked frantically to gather more information about the suspension; to get through to someone at Google who could get the Account back online; and to understand and remedy the restraint that had been placed on Tulsi’s speech—at precisely the moment when everyone wanted to hear from her.

Like many others who have had similar experiences with Google, Facebook and Twitter, the Gabbard campaign got meaningless, shifting explanations from Google, which finally reinstated her advertising account without apology. Gabbard aggressively alleges that Google’s actions were the result of its prejudices and financial interests:

10. But in context, the explanation for Google’s suspension of the Account at exactly the wrong time is no great mystery: Google (or someone at Google) didn’t want Americans to hear Tulsi Gabbard’s speech, so it silenced her. This has happened time and time again across Google platforms. Google controls one of the largest and most important forums for political speech in the entire world, and it regularly silences voices it doesn’t like, and amplifies voices it does.

Gabbard also alleges that emails from her campaign’s Gmail account are sent to spam more often than those of other Democratic candidates. It is unclear how she would know this.

To some degree, the Complaint aligns Gabbard with conservatives who have complained of political bias on the part of the tech giants:

45. But this mission is not executed equally. Google does not treat all political viewpoints equally. The company has been criticized by many on the right for censoring content that favors conservative viewpoints. However, Google’s favoritism of political and policy ideas is more nuanced and self-serving. Simply put, Google supports viewpoints, political causes, and candidates that favor its policy positions over those that do not.

46. For example, Google-affiliated donors gave $817,855 to Barack Obama’s presidential candidacy in 2008, which ranked sixth among all donations to Obama’s campaign. In 2012, that number was $804,240, which ranked third. Google did not even rank in the top twenty donors for Obama’s Republican opponents in either election. The Obama Administration’s close ties to Google are now well-known: During Obama’s two terms in office, Google officials met with the White House on more than 427 occasions, while at least fifty-three officials moved between Google and the White House and vice versa. Not surprisingly, the Obama Administration championed many of the top policies on Google’s wish list, while Obama’s Federal Trade Commission closed its antitrust investigation of the company without any meaningful sanctions.

47. The disparity grew even more stark during the last presidential election. Google employees gave $1.3 million to Hillary Clinton’s presidential campaign, compared with $26,000 to the Trump campaign. What’s more, Eric Schmidt, the chairman of Alphabet (Google’s parent company), counseled Clinton on strategy during her presidential campaign, and financed Civis Analytics, a startup which provided data and other technology for her campaign. Robert Epstein, a social psychologist and Internet researcher, argues persuasively that Google’s pro-Clinton search bias may have shifted as many as 2.6 million votes to Clinton during the 2016 election.
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51. More recently, Google employees engaged in an internal lobbying campaign to block Breitbart from Google’s advertising program. As part of this internal lobbying campaign, one Google employee pressed that “[t]here is obviously a moral argument to be made [to blocking Breitbart] as well as a business case.” While it’s not entirely clear what “business case” the Google employee was referring to, it’s important to note that Breitbart has been among Google’s staunchest critics, alleging that the company routinely censors conservative viewpoints.

The Complaint alleges familiar facts about Google’s dominance in search and advertising markets and describes persuasively its importance as a platform for political discussion. In my view, however, it doesn’t really have a solution to the fact that Google is a private company, not the government, so that the First Amendment does not apply to it. It alleges that Google is a “state actor.”

68. Google creates, operates, and controls its platform and services, including but not limited to Google Search, Google Ads and Gmail as a public forum or its functional equivalent by intentionally and openly dedicating 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. Accordingly, speech cannot be arbitrarily, unreasonably, or discriminato- rily excluded, regulated, or restricted on the basis of viewpoint or the identity of the speaker on Google’s platform.

I could well be wrong, but I don’t think such allegations pass muster under existing law. I think something needs to be done to preserve free speech on the dominant tech platforms, but I think it will require legislation to accomplish that goal. In the meantime, Gabbard’s lawsuit raises important issues in a manner that many conservatives can get behind.