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Google Isn’t Intentionally Biased Against Republicans, Says Court

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Google Isn’t Intentionally Biased Against Republicans, Says Court

Plus: The real message behind DeSantis’ abortion anecdote, midwives sue over Alabama regulations, and more…

ELIZABETH NOLAN BROWN
Federal court dismisses RNC lawsuit over Google spam filters. A federal court has dismissed the Republican National Committee (RNC) lawsuit accusing Google of being biased against Republicans and reflecting this by marking RNC emails as spam. There are legitimate reasons why Gmail filters may have considered the emails spam and insufficient evidence to suggest the company acted out of deliberate bias or in bad faith.

The suit was filed in 2022, with the RNC accusing Google of intentionally or negligently “discriminating” against Republicans and attempting “to secretly suppress the political speech and income of one major political party.” Google alleged that it did no such thing, and any increase in RNC emails being marked as spam was likely the result of things like users marking them as spam, emails being sent too frequently, or issues with the RNC’s domain authentication.

In a ruling last week, U.S. District Judge Daniel Calabretta said it was a “close case” but the RNC hadn’t “sufficiently pled that Google acted in bad faith.”
The RNC “argues that the only reasonable inference for why its emails were labelled as spam is Google’s alleged political animus toward the RNC,” but “this is pure speculation, lacking facts from which the Court could infer animus or an absence of good faith,” wrote Calabretta.

The judge also pointed out that designating certain emails as spam is the kind of content moderation protected by Section 230.

Section 230 “affords interactive computer service providers immunity from liability for decisions related to blocking and screening of offensive material, or for providing others with the technical means to do so,” he explained, noting that “Congress itself has recognized the harm spam can cause in enacting the Controlling the Assault of Non–Solicited Pornography and Marketing (‘CAN–SPAM’) Act of 2003.”

The RNC argued that its emails couldn’t conceivably be considered spam since they were only sent to people who had subscribed at some point to their email lists. But “the fact that the RNC sent emails to individuals who requested them at some point in time does not undermine this conclusion,” wrote Calabretta. He continued:
just because a user interacts with a company at one point in time does not mean that the user ‘solicits’ each and every email sent by the entity. Most individuals who use email are likely familiar with having engaged with an entity one time (such as by purchasing a particular product) only to have that entity send numerous other emails, many or all of which are no longer relevant or wanted. While a user may be generally able to opt out of those emails, an email provider such as Google may reasonably segregate those sorts of mass mailings (even though they were originally requested by the user in the legal sense) in order to ensure that ‘wanted electronic mail messages’ will not be ‘lost, overlooked, or discarded amidst the larger volume of unwanted messages.’

It is clear from the Complaint that the RNC sends out a significant number of emails to individuals on its list. While it may be that some, perhaps many, users specifically wanted each and every one of those emails, Google could reasonably consider these mass mailings to be objectionable, just as it can for other email senders … Application of section 230 in this case, then, turns on whether the RNC has sufficiently pled that Google did not act in “good faith” when filtering the RNC’s emails. While it is a relatively close case, the Court concludes Plaintiff has not sufficiently pled facts to establish that Google has acted without good faith. …

In this case, the RNC’s allegation that Google acted in ‘bad faith’ does not rise above the speculative level. …

In short, the only fact alleged by the RNC to support its conclusory allegation that ‘Google’s interception and diversion of the RNC’s emails, and the harm it is causing to the RNC, is intentional, deliberate, and in bad faith,’ is the North Carolina State University study that expressly states there is no reason to believe Google was acting in bad faith, and the remainder of the allegations in the Complaint are inconsistent with such a conclusion. In light of the multiple reasonable explanations for why the RNC’s emails were filtered as set forth in the Complaint, the Court does not find the RNC’s allegation that Google was knowingly and purposefully harming the RNC because of political animus to be a ‘reasonable inference.’
The aforementioned study did find that Gmail marked many more right-leaning candidate emails than left-leaning candidate emails as spam in new accounts created by researchers. But “the study itself does not attribute any motive to Google,” noted Calabretta. It also found that all three email services (Gmail, Outlook, and Yahoo) tested seemed to have a political bias in their spam filters—albeit smaller and going the other direction for Outlook and Yahoo—and that the Gmail spam filter “responded significantly more rapidly to user interactions compared to Outlook and Yahoo.”

You can read Calabretta’s full ruling here.

It follows a finding from the Federal Election Commission (FEC) earlier this year that there was “no reason to believe” that Google parent company Alphabet used Gmail spam filters to try and thwart Republicans or benefit Democrats.

Mike Masnick at Techdirt points out that Section 230 isn’t the only reason the RNC’s claims failed:
The case could just end there. The claims are barred by 230, end of story. But, instead, the court decides to run through the actual claims anyway and explain why they still fail, even without Section 230.

Even if Google were not entitled to section 230 immunity, each of Plaintiff’s claims would still be subject to dismissal because they are either not a claim upon which relief can be granted, or because Plaintiff has failed to establish it is entitled to relief.

Again, we’ve pointed this out repeatedly: even in the absence of Section 230, most claims that lose on 230 grounds would still lose, just that it would take longer and be more expensive.

FREE MINDS
Penny Hopper’s story highlights danger of abortion bans.  At the first Republican presidential debate, Florida Gov. Ron DeSantis told a story about a woman named Penny who “survived multiple abortion attempts.” DeSantis told this story as part of a convoluted answer to why he supported abortion bans. But far from being a warning about the horrors of the legal abortion industry, Hopper’s tale is actually a cautionary tale about what people will resort to when abortion is banned.

“Penny is real and her last name is Hopper. But DeSantis failed to note key details from her remarkable story,” The Miami Herald pointed out.
The person who tried to end Penny’s life in the womb was not a doctor or even an illegal abortion provider — it was her father. And his effort to abort his daughter with a coat hanger took place almost two decades before the Supreme Court’s seismic Roe v. Wade decision, which established a woman’s right to an abortion.

While DeSantis’ version of Penny’s story honors life and a woman who survived a traumatic beginning, it also reflects the perils of a world where abortion is all but outlawed and women can be forced into dangerous, desperate alternatives.
More here.

FREE MARKETS
Midwives fight against overregulation in Alabama. A group of Alabama midwives and doctors are challenging state regulations that “have imposed a de facto ban on freestanding birth centers throughout Alabama, preventing three such birth centers from providing much-needed pregnancy care to their patients,” as the American Civil Liberties Union (ACLU) puts it. The regulations in question come from the Alabama Department of Public Health (ADPH), which says that freestanding birth centers—many of which rely on midwives to deliver babies—must have a hospital license. “At the same time, ADPH has made it impossible for any such birth center to even attempt to obtain such a license, creating a dilemma that is both unlawful and unjustified,” the ACLU says.

In a new lawsuit, a group of doctors and midwives allege that the ADPH lacks authority to promulgate such a regulation since birth centers are not hospitals, and that even if it does have the authority to require the license it does not have the authority to entirely ban midwife-led birth centers, which it has effectively done by not providing a path to licensure.

“The state of Alabama is making it difficult if not impossible for birth centers to survive,” said ACLU of Alabama Executive Director JaTaune Bosby. “Obstacles and barriers erected by state lawmakers and agencies prevent individuals, like our clients, from helping their patients. More birthing centers are needed here. Midwives and doulas are needed here. Their services provide hope and will save countless lives.”

QUICK HITS
• “A Texas National Guard member shot and wounded a man along the Rio Grande in the El Paso area Saturday evening, firing across the border into Mexican territory,” reports The Washington Post. “The soldier was deployed as part of Operation Lone Star, the border security mobilization directed by Gov. Greg Abbott (R) that has lined the Rio Grande with U.S. troops, concertina wire and other impediments in an effort to reduce illegal crossings.”

• Jury selection begins today for the trial of Michael Lacey and other former Backpage executives. A group of 41 “journalists, editors, artists, and public servants”—many of whom worked for Lacey and the now-deceased James Larkin— have signed a public letter of support for Lacey, asserting that he “is the target of a vindictive prosecution, resulting from his 40-plus years as a muckraking journalist” and calling “for this travesty to end” lest “a dangerous precedent … be set, whereby the U.S. government can prosecute people for third-party speech simply because the authorities find that speech objectionable.”

• The National Archives and Records Administration (NARA) has in its possession “nearly 5,400 emails, electronic records and documents that potentially show President [Joe] Biden using a pseudonym during his vice presidency,” reports the New York Post.

• Fallout continues for the Kansas cops who raided a small-town newspaper. “The raid of the Marion County Record is now international news, thanks in large part to the flagrant First Amendment violations,” notes Techdirt, which rounds up the latest updates (including Marion County Attorney Joel Ensey withdrawing the warrants used to justify the raid).

• Talking about sex online shouldn’t be illegal.

• Are both the left and the right getting Oliver Anthony wrong?
Elizabeth Nolan Brown is a senior editor at Reason, where she writes regularly on the intersections of sex, speech, tech, crime, politics, panic, and civil liberties. She is also co-founder of the libertarian feminist group Feminists for Liberty.

Since starting at Reason in 2014, Brown has won multiple awards for her writing on the U.S. government’s war on sex. Brown’s writing has also appeared in The New York Times, Los Angeles Times, The Daily Beast, Buzzfeed, Playboy, Fox News, Politico, The Week, and numerous other publications. You can follow her on Twitter @ENBrown.

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