Celebrity Commentators, State AGs Take on Tech Giants’ Expanding Power: Facebook, Google Fight Court Battles on Two Fronts

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Kanye West may like the way she thinks, but Facebook fact-checkers were less than impressed with Candace Owens’ thoughts, resulting in false-information tags on at least two of her posts. The conservative pundit struck back with a suit against Lead Stories LLC, fact-checkers for Facebook.

Owens, author of “Blackout: How Black America Can Make Its Second Escape from the Democrat Plantation,” alleges that fact-checkers negated her content and obstructed its visibility.

“When one clicks the false information warning label, Facebook identifies USA Today as the entity who fact-checked Candace,” wrote attorney Sean J. Bellew on behalf of Owens in the Oct. 20 complaint. “Moreover, this allows one to be easily redirected to USA Today’s website.”

Even as Owens, President Donald Trump and others voice complaints about content policies, the tech giants face legal battles on an entirely different front, as states delve into alleged antitrust violations.

“I don’t think the antitrust lawsuits I’ve seen against Facebook and Google have anything to do with the sorts of claims that Candace Owens is making in this case, but it may have something to do with the country being politically receptive to this type of regulatory action by its government because it’s unhappy with big tech,” said Andrew Geronimo, professor at Case Western Reserve University School of Law’s First Amendment Clinic.

On Dec. 16, Missouri Attorney General Eric Schmitt joined Texas Attorney General Ken Paxton and eight other states in accusing Google of unfair business practices to overcome competitors.

“These antitrust lawsuits seem to be part of a backlash against big tech and their impact on society,” Mr. Geronimo said. “That comes not only in terms of the costs of potential free speech online and censorship but also in terms of personal privacy, data and truly anti-competitive conduct.”

Among the allegations in the State of Texas v Google are eliminating competition by fixing privacy and online advertisements in its own favor.

“Google was able to demand that it represent the buy-side where it extracted one fee, as well as the sell-side, where it extracted a second fee, and it was also able to force transactions to clear in its exchange where it extracted a third, even larger, fee,” wrote lead counsel W. Mark Lanier in the complaint filed in Sherman Division of the Eastern District of Texas.

In a separate lawsuit filed in the U.S. District Court for the District of Columbia, attorneys general from 48 states joined New York Attorney General Letitia James in suing Facebook, alleging violations of the Clayton Act.

“Facebook illegally maintains a monopoly power by deploying a buy-or-bury strategy that thwarts competition and harms both users and advertisers,” wrote Letitia James, attorney general for the state of New York, in the Dec. 9 complaint.

Although State of New York v Facebook cites the Clayton Act’s antitrust legislation, Mr. Geronimo said it’s not enough to carry the litigation to fruition.

“You can’t just go into court and say these companies have too much power or influence, and get relief under the Antitrust Act,” said Mr. Geronimo. “You’ve got to show coordinated anti-competitive conduct and a concrete harm. The more impact that a certain company has on speech and culture generally, the more it makes people open to the idea politically of using that antitrust power against them in court.”

If the suit is successful, Facebook’s acquisitions of Instagram and WhatsApp would be declared violations of the Clayton Act and each of the 49 plaintiff states would receive costs, including reasonable attorneys’ fees, according to the pleading’s prayer for relief.

“There are practices where Facebook has really been trying to corner the market, whether that’d be on social media, communication, or certain types of advertisements and anticompetitive practices prevent small businesses from being able to enter that market space because the barriers are so high for them” said Elad Gross, a recent Democratic candidate for Missouri attorney general.

Mr. Geronimo notes that in Owens v. Lead Stories, Owens attorney Bellows has set her up as a competitor to Facebook fact-checkers where they allegedly did not act in good faith.

“The fact-checkers and Facebook itself are not required to host Candace Owens’ speech on their platform,” he said. “They’re not required to monetize her speech.”

Further, Section 230 of the Telecommunications Act absolves online platforms like Facebook and Twitter of the responsibility for their users’ posts so that they cannot be held liable for removing content they find objectionable.

“What folks should realize is that no one has a protected, constitutional right to Facebook as a platform, and so if you’re unhappy with the way Facebook is moderating, you can use other platforms, especially someone of Candace Owens’ stature,” said Mr. Geronimo. “She can attract viewers wherever she goes. So, she has no real lack of access to people to hear her points of view. Candace Owens has a website that’s popular and she’s got a ready platform on Twitter.”

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