RNC Loses Trollsuit Against Google For Aggravated And Malicious Spam Foldering

Big Loser Energy

Republicans are the biggest whiners on earth.

We could just leave it at that, but since our job is lawsplaining, please direct your pointing and laughter at a recently dismissed lawsuit filed by the Republican National Committee against Google. The RNC howled that a bunch of its emails were getting routed to spam, and that was NO FAIR and UNLEGAL and GIVE US ALL YOUR MONEY.

This is a common refrain from the Muh Free Speech! crowd. Conservatives insist that social media platforms are shadow-banning them, censoring them with fact checks, and violating their First Amendment right to post Hunter Biden’s stolen nudes. (Oddly enough, now that it’s Elon Musk doing that stuff, they’re strangely unbothered.)

In March of 2022, a study from North Carolina State University showed that, during the 2020 election, Gmail’s spam algorithm was more than 50 percent more likely to filter out a Republican email than a Democratic one. This might have had something to do with the fact that Republicans were blasting out an avalanche of fine print that tricked recipients into recurring and escalating donations — the Trump campaign alone was forced to return a whopping $122 million to donors after the election.

As tech reporter Matt Binder pointed out at the time, there are a whole host of factors that might explain why Gmail kicked so many of the RNC’s messages to spam, and the most logical explanation is that Democrats took the trouble to optimize for the algorithm, and Republicans didn’t. Indeed, Google says that it offered the RNC the opportunity to participate in an experimental program authorized by the Federal Election Commission (FEC) which would have ensured that its emails all went through unless users themselves marked them as spam, and the RNC refused.

Nevertheless, Republicans took the North Carolina study as proof positive that Google was trying to torpedo them.

Ughh, yeah, it’s this guy.

If you have ever given a nickel to a political campaign, you probably received nine email solicitations since you started reading this post. RIP to your inbox! But in a complaint filed on the eve of the 2022 midterms, the RNC alleged that Google “relegated millions of RNC emails en masse to potential donors’ and supporters’ spam folders during pivotal points in election fundraising and community building.”

“For most of each month, nearly all of the RNC’s emails make it into users’ inboxes,” the RNC’s lawyers wrote. “At approximately the same time at the end of each month, Google sends to spam nearly all of the RNC’s emails. Critically, and suspiciously, this end of the month period is historically when the RNC’s fundraising is most successful.” From this they inferred a deliberate effort to “baselessly and secretly suppress[] the political speech and income of one major political party.”

The plaintiff was represented by Harmeet Dhillon, a Trumpland lawyer who mounted an unsuccessful challenge to Ronna Romney McDaniel to head the RNC in January of 2023. Dhillon’s firm specializes in filing performative lawsuits that give her a chance to go on Fox and claim to be taking on evil liberals. (She shoulda renamed herself Harmeet Trump!) These lawsuits usually go nowhere, although Dhillon was joined here by Trump’s lawyers from Consovoy McCarthy, the ones he hires when he actually gives a shit about the outcome.

The original complaint alleged seven counts: 1) violation of California’s common carrier law; 2) violation of California’s civil rights act, which bans discrimination based on political affiliation; 3) violation of California’s Unfair Competition Law (UCL); 4) intentional interference with prospective economic relations; 5) negligent interference with prospective economic relations; 6) unlawful discrimination under 47 U.S.C. §202; and 7) civil negligence under California law.

Google moved to dismiss in a hilarious filing that began by observing that the suit was so unserious that plaintiff couldn’t even get the defendant’s name right: It’s “Google, LLC,” not “Google Inc.”

The linchpin of the complaint was claim that Google is a “common carrier,” in the mold of Western Union, the old telegraph company. Common carriers have to take all comers and cannot discriminate on the basis of content, so this is favorite theory of Republicans, who hope to force social media platforms to carry noxious content and misinformation. Justices Thomas, Alito, and Gorsuch are fairly champing at the bit to bless this particular bit of lunacy, despite the fact that it would violate the First Amendment and Section 230 of the Communications Decency Act, which immunizes websites for content moderation decisions. The Fifth Circuit actually did bless this theory in NetChoice v. Paxton, a challenge to Texas’s social media regulation. But that ruling was reversed by the Supreme Court because the First Amendment is still good law … at least for now.

The RNC admitted in its own complaint that “this claim is foreclosed by binding precedent,” but said it was making it anyway “to preserve the issue for further review or intervening Supreme Court precedent.”

That precedent never came, and in August of 2023 Judge Daniel Calabretta dismissed the suit with prejudice, except for counts three and four, which he invited the plaintiff to plead more cogently in an amended complaint.

What followed was an even less cogent filing which was twice as long and included the five counts which had already been dismissed with prejudice. Dhillon claimed to have found a smoking gun because, after the case was filed, Google tinkered with its algorithm to allow almost all the RNC’s spammy demands for cash from the rubes to go through to users’ inboxes.

Construing the allegations in the most favorable light to the plaintiff, as he must on a motion to dismiss, Judge Calabretta accepted this as prima facie evidence that Google was acting to deliberately suppress political speech, and thus it was not entitled to immunity under Section 230.

Overall, while there may be technical reasons to account for the abrupt end to the months-long inboxing pattern, the timing and the lack of a clear reason for the monthly diversions makes the RNC’s allegation that Google acted without good faith in diverting the RNC’s emails to spam sufficiently plausible at this early stage of the proceedings. Accordingly, Google is not entitled to immunity under section 230(c)(2)(A).

But that was the end of the good news for Dhillon and her clients.

California’s UCL makes it illegal to engage in an “unlawful” business act or practice. Similarly, the tort of intentional interference with prospective economic relations involves disrupting a party’s business relationship with “intentionally wrongful acts,” as opposed to normal competitive activity. Saliently, both of these require some other illegal conduct or bad act — much like Trump’s misdemeanors in the false business records case getting plussed up to felonies because the fake invoices and checks were created to hide the illegal campaign contribution.

But when asked to identify the “unlawful” business practice for Count 3, the RNC pointed to its allegations in Count 4, where it claimed that Google had tortiously interfered with its business relationships (i.e., its fundraising) by sending the emails to spam. And then when asked to substantiate why that behavior would be “intentionally wrongful” in Count 4, the RNC pointed back to Count 3, and said that the behavior was wrongful because it was illegal.

That sort of circular logic is plainly prohibited “bootstrapping” under prevailing Ninth Circuit precedent; a party may not assert that its tortious interference claims are the proof of a UCL violation and then point to the UCL to explain why the alleged interference was “intentionally wrongful.”

“The UCL needs to have been violated for reasons other than defendant interfered with a prospective economic advantage,” Judge Calabretta wrote.

Absent even an allegation that Google did so, neither claim could stand. And if there’s no other violation of the law, then there’s no way to bootstrap into a violation of the UCL or an intentional interference claim. The last two remaining charges were dismissed, this time with prejudice.

The allegations of political discrimination, if true, are certainly concerning and may have wide and severe implications for the future of political discourse. It may even be that Google’s conduct is “unfair” in a colloquial, as opposed to a legal, sense. But it is not the role of this Court to decide these significant policy issues that must be addressed by a legislative body in the first instance.

This is clearly the correct result, although the RNC will undoubtedly appeal in hopes that the Supreme Court will make good on that saber-rattling about common carriers. In the meantime, Republicans have been spared the necessity of proving their idiotic allegations about the big, scary tech platforms censoring them. They can go forward and whine forever, claiming that a Biden-appointed judge wouldn’t even let them present all their very good evidence.

So much winning!