USCA Case #19-7030
Document #1844360
Filed: 05/27/2020
Page 2 of 4
-2The Platforms protest this conclusion, arguing that Freedom Watch is unable to point to any
actions by the Platforms that caused its alleged injury. With respect to Twitter and Facebook,
Freedom Watch specifically alleges that those Platforms prevented Ms. Loomer from using their
services. With respect to Google and Apple, standing rests on the general claim that those
companies were engaged in a conspiracy against Freedom Watch. As the district court explained,
at the pleading stage, “general factual allegations of injury resulting from the defendant’s conduct
may suffice.” Id. at 36 (quoting Osborn v. Visa Inc., 797 F.3d 1057, 1064 (D.C. Cir. 2015)). The
general allegation that the Platforms conspired to suppress Freedom Watch’s audience and revenue,
combined with Freedom Watch’s representations that its audience and revenue declined, suffices
to establish standing.
Freedom Watch’s First Amendment claim fails because it does not adequately allege that the
Platforms can violate the First Amendment. In general, the First Amendment “prohibits only
governmental abridgment of speech.” Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921,
1928 (2019). Freedom Watch contends that, because the Platforms provide an important forum for
speech, they are engaged in state action. But, under Halleck, “a private entity who provides a forum
for speech is not transformed by that fact alone into a state actor.” Id. at 1930. Freedom Watch fails
to point to additional facts indicating that these Platforms are engaged in state action and thus fails
to state a viable First Amendment claim.
Freedom Watch also fails to state a viable claim under the Sherman Antitrust Act. To state
a § 1 claim, a complainant must plead “enough factual matter (taken as true) to suggest that an
agreement was made.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007). Freedom Watch
argues that we should infer an agreement primarily from the Platforms’ parallel behavior, as each
company purportedly refused to provide certain services to Freedom Watch. But, as the district
court explained, parallel conduct alone cannot support a claim under the Sherman Act. See Freedom
Watch, 368 F.Supp.3d at 37 (citing Twombly, 550 U.S. at 556 (“Without more, parallel conduct does
not suggest conspiracy”)). Freedom Watch puts forth two additional factors that it claims suggest
conspiracy: that the Platforms are pursuing a revenue-losing strategy and that they are motivated
by political goals. But Freedom Watch does not explain why either factor tends to show an unlawful
conspiracy, rather than lawful independent action by the different Platforms. See Freedom Watch,
368 F.Supp.2d at 37–38.
Freedom Watch’s § 2 claim is also deficient. To state a § 2 claim – collective
monopolization by several parties or individual monopolization by a single party – a complainant
must allege that monopoly powers were acquired through “anticompetitive conduct.” See Verizon
Commc’ns Inc. v. Law Offices of Curtis V. Trinko, LLP, 540 U.S. 398, 407 (2004) (emphasis
omitted). The only anticompetitive conduct that Freedom Watch alleges (without supporting factual
allegations) is that the Platforms conspired against it to suppress conservative content, but not that
the Platforms conspired to acquire or maintain monopoly power. A § 2 claim requires the latter
allegation.
That leaves Freedom Watch’s discrimination claim under the D.C. Human Rights Act. The
Act prohibits discrimination on the basis of political affiliation in “any place of public