ABFE Free Speech Report: Antitrust and When Is a Private Company Not So Private Anymore

The ABFE Free Speech Report is a column by David Grogan, ABA’s director of ABFE, Advocacy & Public Policy. The views expressed do not necessarily reflect those of the American Booksellers Association. Grogan welcomes comments and suggestions at [email protected].

Many media stories have reported on Russia’s alleged steps to tamper in the 2016 U.S. election, including allegations of disinformation posted on social media. In response, companies like Google (which owns YouTube) promised to clamp down on this kind of tampering. Richard Salgado, Google’s director of law enforcement and information security, and Kent Walker, Google’s general counsel, issued a written statement in regard to Russian interference, which promised that Google will “work to prevent all of it, because no amount of interference is acceptable,” as reported by the New York Times.

But what if it is actually Google that is interfering in the election process?

That is the assertion made in a lawsuit filed last Thursday by Tulsi Gabbard, a Democratic congresswoman from Hawaii who is running for president. Gabbard’s suit claims that Google infringed on her free speech when it briefly suspended her campaign’s advertising account after the first Democratic debate in June, as reported by the New York Times.

Gabbard’s campaign website alleges that on June 28, following the Democratic debate, “according to multiple news reports, [Gabbard] was the most searched candidate on Google. Then, without any explanation, Google suspended [Gabbard]’s Google Ads account.” The campaign claims that Gabbard’s advertising account remained offline while Americans were searching for information about the candidate.

Gabbard’s campaign goes on to argue that “if Google can do this to [Gabbard] … Google can do this to any candidate, from any party, running for any office in the United States.” (It is worth pointing out that Gabbard has been a vocal proponent of breaking up the tech monopolies.)

In its challenge published by the New York Times, Tulsi Now, Gabbard’s campaign committee, states it is bringing the suit due to Google’s “serious and continuing violations of Tulsi’s right to free speech. Since at least June 2019, Google has used its control over online political speech to silence Tulsi Gabbard, a candidate millions of Americans want to hear from. With this lawsuit, Tulsi seeks to stop Google from further intermeddling in the 2020 United States Presidential Election.”

The challenge also stressed that “by acting to silence Gabbard at exactly the moment when her speech was most important, and most ready to be heard … Google violated the Campaign’s federal and State rights to free speech.”

“Google’s discriminatory actions against my campaign are reflective of how dangerous their complete dominance over Internet search is, and how the increasing dominance of big tech companies over our public discourse threatens our core American values,” Gabbard told the Times. “This is a threat to free speech, fair elections, and to our democracy, and I intend to fight back on behalf of all Americans.” 

In response to the challenge, Jose Castaneda, a spokesperson for Google, told the Times that it has automated systems that flag unusual activity on advertiser accounts in an effort to prevent fraud. “In this case, our system triggered a suspension and the account was reinstated shortly thereafter,” he said. “We are proud to offer ad products that help campaigns connect directly with voters, and we do so without bias toward any party or political ideology.”

Now it will be up to the courts to see if Google was being discriminatory to Gabbard’s campaign or it was merely a glitch in the system. I personally am not convinced by Google’s explanations, though it is plausible that it simply was an unfortunate coincidence.

Regardless, Google’s dominance is unsettling. As I wrote in a February column, a company like Google has government-level power to shut down speech. And there is a huge difference between offering content and monopolizing content. It is this very reason why lawmakers like Rep. David Cicilline (D-RI) — as well as the FTC and Justice Department — are investigating Google (and Apple, Amazon, and Facebook) for antitrust violations.

And if what Gabbard’s campaign alleges turns out to be true, it will only further prove the point that, at the very least, Big Tech and free speech is an issue that we must grapple with — hopefully before the 2020 election.

Kids’ Right to Read Project Combats Censorship in Libraries

Over the past few months, the Kids’ Right to Read Project (KRRP), a program of the National Coalition Against Censorship that is supported by the American Booksellers Association, the Association of American Publishers, and the Comic Book Legal Defense Fund (CBLDF), was called upon to defend books from censorship in public libraries and elsewhere.

In late June, KRRP responded to reports that, despite a review committee recommendation to keep The Walking Dead graphic novel series available to students, the title was removed from the Wallace High School (WHS) library in Wallace, Idaho, and banned from campus. The decision was apparently made in order to accommodate select parents’ preferences.

In a letter to Dr. Robert Ranells, superintendent of the Wallace School District, KRRP urged the district to honor its First Amendment obligations by rescinding this ban and restoring The Walking Dead to WHS library shelves. KRRP wrote: “The First Amendment protects students’ freedom to access information and engage in non-disruptive conduct in school. In keeping with First Amendment principles, Wallace District libraries ‘provide a wide range of materials on all appropriate levels of difficulty, with diversity of appeal, and the presentation of different points of view’ (Wallace District Policy 2510).”

In May, KRRP reached out to Orting School District administrators in Orting, Washington, after they removed Eleanor and Park by Rainbow Rowell, from an 8th grade class’ Battle of the Books competition after a parent complained about profanity in the book. KRRP stressed in a letter that the district failed to follow policy before removing the book from the classroom. “We are deeply concerned that administrators appeared not to even be aware as to the policy which pertains to the review of challenged curricular materials (Policy 2020),” KRRP’s letter notes, “and made the decision to pull the book from the Battle of the Books choice curriculum unilaterally. While we are glad to learn that an Instructional Materials Committee has been convened to review the book’s suitability for the library, we urge you to reconsider the decision to remove it from the curriculum.”

That same month, KRRP wrote to Hanover County Public Schools in Ashland, Virginia, concerning recent media reports of controversy around students’ freedom to read PRIDE: The Story of Harvey Milk and the Rainbow Flag by Rob Sanders. “We want to support you in protecting your students’ right to express and learn from diverse perspectives,” KRRP wrote in a letter.

According to public reports, a principle removed the book from a Henry Clay Elementary second-grade classroom and criticized the teacher for exercising “poor judgment” after one parent complained it made her daughter “question her Christian faith.”

KRRP wrote: “We hope you will continue to make PRIDE: The Story of Harvey Milk and the Rainbow Flag available to students who wish to read it. Should you consider the book for your core curriculum, we hope you will convene a committee, as per Policy 6-5.6, and consider the attached guidelines for viewpoint-neutral review. Ultimately, we hope you will support your teachers and work together to preserve intellectual freedom in Hanover County classrooms.”

In April, KRRP wrote to Jeffrey Bender, superintendent of the North Hunterdon-Voorhees School in Annandale, New Jersey, expressing concern over changes to a policy that governs the selection of instructional materials in classrooms and libraries, noting that the changes will heighten the risk of censorship in the district.

The original policy entrusted trained librarians with book selection, a delegation of responsibility that was meant to assure that book selections were credibly rooted in sound pedagogical reasoning, rather than subjective opinion. The policy was amended, however, so that, as worded, absolute authority is vested in the sole person of the superintendent to select and remove books without a review of their educational merits. 

“This concern is aggravated by the fact that the policy changes were adopted shortly after the graphic novel Fun Home: A Family Tragicomic was returned to library shelves over your personal objections. We urge you to adopt policies designed to bolster rather than undermine free expression protections in your District,” KRRP wrote.

NCAC Among 12 Organizations Urging Amendment to Intelligence Authorization Act

Last month, a coalition of more than two dozen organizations, which includes the National Coalition Against Censorship, called for congressional leaders to remove a provision in the Intelligence Authorization Act for Fiscal Year 2020 that would dramatically expand the existing federal crime of disclosing the identity of intelligence operatives. The provision, requested by the Central Intelligence Agency, would expand the definition of “covert agent” in such a way that would unreasonably criminalize disclosure of current and retired operatives’ identities, NCAC noted on its website.

At present, current law prohibits disclosing the identities of intelligence employees who serve or have served abroad within the previous five-year period. But the CIA’s proposal would expand the provision, making it a crime to disclose the identity of agents regardless of whether they ever served overseas, and apply this broad prohibition indefinitely.

The provision, which is Section 305 in H.R. 3494 and S. 1589 (S. 1589 has also been added to S. 1790, the National Defense Authorization Act), would permit the prosecution of reporters or any other person who discloses the identity of a current or retired operative, regardless of whether the disclosure is necessary to reveal government misconduct or threats to the intelligence agencies themselves.

The groups note that the provision would impede congressional oversight of the intelligence community, weaken accountability, hinder public access to information, and create a major chilling effect on journalists and public interest organizations.

PEN and NCAC Fight Law That Would Restrict Political Speech

In July, NCAC announced that it had joined with PEN America to oppose a New Jersey state bill (S.B. 4001) that is intended to combat a rise in acts of anti-Semitism. NCAC noted that, while it supports the intentions of the bill, it is written so broadly that it “could apply to constitutionally protected speech in New Jersey schools and universities that is critical of the Israeli government or supportive of Palestinian rights.” Similar bills have been signed in South Carolina and Florida. “If the bill becomes law, it could be used to silence political activists, including Jews,” NCAC wrote.

In its announcement, NCAC reported that Kenneth S. Stern, the former director on anti-Semitism for the American Jewish Committee, has been a leading critic of the Anti-Semitism Awareness Act, federal legislation that is similar to S.B. 4001. This is especially significant because he was the lead author of the expanded definition of anti-Semitism adopted in both bills.

Stern believes that education is the best way to fight anti-Semitism on campus. “There should be more courses on anti-Semitism, on the human capacity to hate, on the conflicting narratives of the Israel-Palestine conflict, and on how to discuss difficult subjects,” Stern concluded. “Rather than suppressing speech about the conflict, we should be encouraging it. How else will students learn?”

NCAC and PEN America wrote the New Jersey State Senate urging them to reject S.B. 4001.

Have you tried Counterspeak?

Speaking of censorship, this month’s Counterspeak podcast is available now.

This month’s episode features interviews with Jonathon Hamilt, co-founder of the Drag Queen Story Hour, about attempts to censor and shut down his events at bookstores. And David Horowitz talks about his work with the Media Coalition, an association that protects the First Amendment right to produce and distribute books, magazines, recordings, home video and video games.