At the same time the President is threatening to retaliate against Twitter for mildly fact checking one tweet, the DC Circuit issued a per curiam order affirming dismissal of a case against Twitter b/c the First Amendment does not apply to it https://twitter.com/eriqgardner/status/1265640604387741696

This order squishes a few wacko legal theories w/ one stone. Freedom Watch and Laura Loomer sued Google, FB, Twitter, and Apple for violating the 1st Amendment, Antitrust Act, and DC Human Rights Act. They alleged that the platforms conspired to suppress their audience & revenue

The alleged injury is enough for standing, but the claims don't fare so well. The constitutional claim fails b/c "[i]n general, the First Amendment 'prohibits only *governmental* abridgment of speech." A private entity not transformed into the state by providing a forum

FW argued the court should infer an antitrust agmt from "parallel behavior," meaning the alleged fact that each refused to provide certain services to FW. But FW doesn't explain why that can't be due to lawful independent action (like reacting to the same atrocious behavior)

Monopolization also fails b/c FW only alleges (without factual support) that they conspired to suppress conservative content, not that they conspired to create or maintain a monopoly

On the DC Human Rights Act, they don't get to the merits. The DC HRA is fairly unique b/c it prohibits discrimination on the basis of affiliation in a place of public accommodation. Trial court dismissed b/c although the platforms do business in DC, they are not operated in DC

FW appealed, arguing that the interpretation of "place of public accommodation" was too strict. DC actually filed an amicus brief agreeing w/ FW on that point (not necessarily on the merits).

The DC Circuit rejected that and affirmed the trial court, essentially following the reasoning of the DC Court of Appeals in a 1981 case, Jaycees. Under Jaycees, the HRA "must operate from a 'particular place'," i.e., DC

The court also rejected an argument that it should be interpreted consistently with the ADA. Federal courts have differed on whether a place of "public accommodation" must mean a physical place. But that's not enough reason to deviate from the DC Court of Appeals' interpretation

Although this order smacks down several popular legal theories, the panel (two conservative, one more liberal) decided it didn't merit publication. That means they don't think it (e.g.) resolves a substantial issue, clarifies a rule of law, or resolves a conflict (DC Rule 36)

It also means that they see no precedential value in the disposition, but under DC Rule 32.1(b)(1) the order may still be cited as precedent