From Platform to Publisher: The Call to Rein in the Political Influence of Big Tech

Kristin McManus*

On July 25, 2019, presidential candidate Tulsi Gabbard’s campaign (the Campaign) filed a complaint against Google, LLC alleging violations of the First Amendment to the Constitution of the United States, Article I, § 2 of the California Constitution, the Lanham Act, and the California Unruh Civil Rights Act.  Complaint at 29, Tulsi Now, Inc. v. Google, LLC, No. 2:19-cv-06444, 2019 WL 3345356 (C.D. Cal. July 25, 2019).  The Campaign alleges that Google suspended its Google Ads account without warning or reason following the Democratic Party presidential debates on June 28, 2019.  Id. at 4.  This suspension is alleged to have cost the Campaign valuable supporters and potentially millions of dollars in campaign donations.  Id. at 4.  The Campaign also alleges that the Google email platform, “Gmail,” classified communications from Gabbard as “spam” at a disproportionately high rate compared to similar communications from other candidates.  Id. at 5.

The bigger problem urged by the Campaign’s complaint is that Google has a monopoly over the internet search market, which accounts for over 92% of all internet searches worldwide.  Id. at 10.  Because of this monopoly, the Campaign felt that it had no choice but to pay for a Google Ads account for the Campaign’s message to be heard by the public, as people are now turning to internet platforms and forums to get their news more than ever before.  Id. at 10, 23; Elisa Shearer, Social Media Outpaces Print Newspapers in the U.S. as a News Source, Pew Research Ctr. (Dec. 10, 2018), https://www.pewresearch.org/fact-tank/2018/12/10/social-media-outpaces-print-newspapers-in-the-u-s-as-a-news-source/ (stating 43% of adults access the news from news websites or social media).  In turn, Google’s services have become important forums for all Americans, including politicians, to exercise freedom of speech.  Heather Whitney, Google and Facebook Don’t Qualify for First Amendment Protections, Guardian (Mar. 9, 2018, 10:43 AM), https://www.theguardian.com/commentisfree/2018/mar/09/google-facebook-first-amendment-protections.  The Supreme Court also recognizes that the internet has become one of the “most important places (in a spatial sense) for the exchange of views . . . .”  Packingham v. North Carolina, 137 S. Ct. 1730, 1735 (2017).  However, Gabbard and other politicians claim that “Big Tech” is taking advantage of its internet dominance and status as the “go-to” source for news to influence political campaigns to favor its viewpoints and policy positions, which goes unchecked under the immunity provided by § 230 of the Communications Decency Act.  See Complaint, supra at 15–17.

I.  Immunity Under § 230 of the Communications Decency Act

The Campaign’s claims once again call into question the monopolistic status of Big Tech companies and the protections they are afforded under § 230 of the Communications Decency Act.  Adam Candeub & Mark Epstein, Platform, or Publisher?, City J. (May 7, 2018), https://www.city-journal.org/html/platform-or-publisher-15888.html.  Section 230 of the Communications Decency Act states that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”  47 U.S.C. § 230(c) (2012).  Essentially, § 230 provides immunity to online platforms for content posted by third party users that is viewed as defamatory, unlawful, or fraudulent.  Candeub & Epstein, supra.

Google argues that it does not act as a publisher because it filters through the use of automated systems and algorithms rather than making conscious editorial decisions; thus, it is protected under § 230.  Adi Robertson, Democratic Presidential Candidate Tulsi Gabbard Sues Google for Suspending Her Ad Account, Verge (July 25, 2019, 2:03 PM), https://www.theverge.com/2019/7/25/8930373/google-tulsi-gabbard-democratic-candidate-lawsuit-ad-search-ban-political-bias-debates.  Moreover, Google’s CEO, Sundar Pichai, claims that Google’s algorithms are mechanically neutral and work to find relevant content for users.  Tunde Farago, Is Google Politically Biased?, Diggit Mag. (July 3, 2019), https://www.diggitmagazine.com/articles/google-politically-biased.  But the nagging question remains: exactly who or what decides what is relevant?  Id.  This question is the basis of criticism by various political experts and candidates.  Id.  These critics believe that even if the algorithms are intended to provide users with the most relevant information, there is no transparency from Big Tech companies as to who oversees the creation of these automated systems or what type of content triggers them to flag content as undesirable.  Robertson, supra.

II.  Political Censorship by Big Tech

It is important to note that § 230 is intended to encourage internet platforms to moderate “offensive” speech, but the law is not intended to enable political censorship.  Candeubi & Epstein, supra.  Gabbard is not the first politician to call into question the bias of content filtering and censorship by Big Tech companies, which is sometimes the position held by right-wing conservatives.  See Ted Cruz, Sen. Ted Cruz: Facebook Has Been Censoring or Suppressing Conservative Speech for Years, Fox News (Apr. 11, 2018), https://www.foxnews.com/opinion/sen-ted-cruz-facebook-has-been-censoring-or-suppressing-conservative-speech-for-years; Daisuke Wakabayashi, Tulsi Gabbard, Democratic Presidential Candidate, Sues Google for $50 Million, N.Y. Times (June 25, 2019),  https://www.nytimes.com/2019/07/25/technology/tulsi-gabbard-sues-google.html.  In 2018, Senator Ted Cruz asserted that Facebook violated its qualifications for protection under § 230 by targeting, censoring, or shadow-banning advertisements from conservative groups and politicians.  Id.  Senator Cruz stated that it is critical for Facebook and other Big Tech companies to take criticisms and accusations that it is engaging in discrimination of political viewpoints seriously to avoid surrendering its status as a neutral public forum, which would revoke the company’s immunity from liability under § 230.  Id.

More recently, Senator Elizabeth Warren made an aggressive claim against Big Tech companies for frequently touting her plan to restrict their power and decrease their influence on American democracy.  Isaac Stanley-Becker & Tony Romm, Facebook Deletes, Then Restores, Elizabeth Warren’s Ads Criticizing the Platform, Drawing Her Rebuke, Wash. Post (Mar. 12, 2019, 1:28 AM), https://www.washingtonpost.com/nation/2019/03/12/facebook-deletes-then-restores-elizabeth-warrens-ads-criticizing-platform-drawing-her-rebuke/.  In early 2019, Senator Warren’s campaign fell victim to the exact type of censorship that she is actively campaigning against.  Id.  Facebook removed several of her campaign’s advertisements that called for the curtailment of the Big Tech companies and “flaying the social networking service as anti-competitive.”  Id.  The removal of Warren’s campaign’s advertisements, like Gabbard’s campaign’s, bolsters the position taken by these political figures that Big Tech companies such as Google and Facebook support viewpoints, political causes, and candidates that favor their own policy positions over those that do not.  Matthew Sheffield, Majority Thinks Tech Giants are Biased Against Conservatives, Poll Shows, Hill (Dec. 31, 2018), https://thehill.com/hilltv/what-americas-thinking/421238-poll-majority-of-americans-think-social-media-companies-are.  Despite Facebook eventually restoring her advertisements “in the interest of allowing robust debate,” Senator Warren used the occasion to warn the public by describing the event as “a case study in the need to curtail Facebook’s power . . . [because] it [is] dangerous for cyberspace to be ‘dominated by a single censor.’”  Stanley-Becker & Romm, supra.

III.  Conclusion

The Campaign’s suit is just the latest iteration of the burgeoning call for scrutiny of the power of Big Tech and its censorship of political ideologies and campaigns that do not favor its own positions and policies.  Emily Birnbaum, Tulsi Gabbard Sues Google Over Censorship Claims, Hill (July 25, 2019, 1:31 PM), https://thehill.com/policy/technology/454746-tulsi-gabbard-sues-google-over-censorship-claims.  Both lawmakers and experts who study the role of Big Tech companies in politics have raised concerns over Big Tech’s influence in the 2020 election, especially following the claims of manipulation by foreign governments on social media and internet platforms during the 2016 election.  Id.  As Big Tech companies shift from public platforms to editors of information, the door opens for continuing claims against Big Tech companies and the call to hold each company accountable for unfair censorship, bias, and influence in the political sphere.  See supra Part II.

*Kristin McManus is a second-year evening student at the University of Baltimore School of Law, where she is a staff editor for Law Review, the Vice President of the Students Supporting the Women’s Law Center, and Law Scholar for Professor Jack Lynch’s Civil Procedure class. Kristin is a member of Phi Alpha Delta – Labrum Chapter, Omicron Delta Kappa, and currently works full time as a paralegal for DeCaro, Doran, Siciliano, Gallagher & DeBlasis, LLP.

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