Google should be required to face a claim that it violated the First Amendment by briefly suspending Democratic presidential candidate Tulsi Gabbard's advertising account, she argues in new court papers.
Google “actively silenced Tulsi Gabbard precisely when America was listening for her voice,” lawyers for the U.S. Representative for Hawaii write in papers filed Monday U.S. District Court Judge Stephen Wilson in the Central District of California.
Gabbard, who is separately suing former secretary of state Hillary Clinton for alleged defamation, is asking Wilson to reject Google's “snarky” motion seeking dismissal of the lawsuit.
The candidate contends that Google's program to verify election ads amounts to a regulation of political speech, and requires the company to refrain from censorship.
“Google’s decision to regulate election speech on its giant platform imposes constraints under the First Amendment,” her attorneys write. “Nothing in Google’s snarky motion to dismiss holds to the contrary.”
The legal fight dates to July, when Gabbard's campaign sued Google over a short suspension of her account. She alleged that her Ads account was suspended for several hours on June 28 -- two days after she participated in a debate with other Democratic hopefuls.
Her complaint alleged that Google sought “to silence Tulsi Gabbard,” noting that she had called for greater regulation of the company. Google said at the time that its automated anti-fraud systems can suspend accounts due to unusual activity, and that her account was reinstated soon after its automated system triggered a suspension.
The company recently urged Wilson to dismiss the lawsuit. Among other reasons, Google says it isn't the government, and therefore is allowed to decide what material to allow on its platform.
Gabbard counters that Google should be considered a “state actor” -- meaning equivalent to the government -- and subject to the same First Amendment rules as the government.
“The unique nature of elections makes it such that private entities that influence the outcome of elections can be considered state actors,” they argue.
Her campaign appears likely to face an uphill battle in court, given that numerous judges have dismissed lawsuits accusing Google, Twitter and Facebook of “censorship.”
For instance, earlier this month U.S. District Court Judge Lucy Koh in San Jose threw out a lawsuit against Facebook by the Russian company “Federal Agency of News,” which claimed its free speech rights were violated when it was taken down by the social networking platform. Koh said in her ruling that Facebook wasn't a government entity, and therefore wasn't bound by the First Amendment's prohibition on censorship.
Federal and state judges in California have also dismissed “censorship” lawsuits brought by Prager University against Google.
Google alternatively argued to Wilson that the case should be transferred to the Northern District of California, given that the company's contract with advertisers provides that lawsuits must be brought in courts within Santa Clara County.
Gabbard says the matter should remain in the Central District of California, arguing that Google's contract with advertisers doesn't cover her free speech claims.
The First Amendment refers to the federal government, not to each and every company in the country.