Google's Anti-Competitive, Antitrust Conduct Against

DRAFT: DO NOT CIRCULATE
MARKET POWER AND THE

MARKETPLACE OF IDEAS
GOOGLE’S ANTICOMPETITVE CONDUCT AGAINST GAB
TABLE OF CONTENTS
I. Introduction................................................................................................................... 1
II. Factual and Economic Background ................................................................................. 1
A. Free Speech is Essential to Gab’s Business Model. ...................................................................1
B. Google Play’s Censorship of Gab Ignored Gab’s Moderation Policies. ......................................4
C. Google Has a Monopoly in the Smartphone Operating System Platform and Application
Distribution Market. ......................................................................................................................5
D. Google Has Downstream Subsidiaries, Which Compete Against Gab and have Monopolies or
are Attempting to Monopolize These Markets. ...............................................................................6
1. YouTube has a monopoly on streaming video and competes against GabTV. ........................... 7
2. Google+ competes against Gab. .................................................................................................. 8
3. Google’s partnership with Twitter gives it further market power in the social media
marketplace.......................................................................................................................................... 8
E. Access to Google Play is Essential for Android Apps to Compete..............................................9
III. Legal Antitrust Argument ......................................................................................... 10
A. Google has Committed per se Antitrust Violations. ............................................................... 11
1.Essential Facilities Doctrine ....................................................................................................... 11
2.Monopoly Leveraging Doctrine ................................................................................................. 12
B. Even if it did not Commit a per se Violation, Google Violated the Section 2 of the Sherman Act
Under a Rule of Reason Analysis................................................................................................... 14
1. Google banning Gab is a naked restriction on competition. ..................................................... 15
2. Removing Gab from the Google Play store has an entirely negative impact on consumer
welfare. .............................................................................................................................................. 17
a. Social Media Consumers ......................................................................................................................17
b. The Advertising Market .......................................................................................................................19
3. Google has no pro-competitive justification for its restraint. ................................................... 19
a. Google Play’s concern about “hate speech” on Gab is pretextual. .....................................................20
b. “Don’t Be Evil” is not a Pro-Competitive Defense. ..............................................................................21
c. Google has no legitimate business interest with public image, brand, or advertising for its restraint.
23
d. Even if Google had some pro-competitive justification, it’s outweighed by the other overwhelming
negative costs. ...............................................................................................................................................25
IV. Section 230 of the Communications Decency Act does not grant Google Play Immunity
for Antitrust Violations Against Gab..................................................................................... 26
A. Section 230(c)(2) does not provide absolute immunity for Google Play. ................................. 26
B. Section 230 Complements the Sherman Act, Rather than Precludes it. .................................. 27
C. Even if Google Play banned Gab in “Good Faith,” it cannot Claim a Section 230 Defense
because Hate Speech is not “Otherwise Objectionable.” ............................................................... 28
V. Conclusion ................................................................................................................... 30
I. INTRODUCTION
On August 17, 2017, Google Play removed the social media app Gab from its store. Google
Play is the official app store for Google’s Android operating system, which is installed in 82% of
new smartphones. Google purported Gab did not sufficiently moderate its users for “hate speech.”
Gab’s business model is to compete against viewpoint discriminatory social media companies,
including the Google subsidiaries Google+ and YouTube, by appealing to consumers who value
free speech.
On the surface, Google’s conduct appears to implicate many contentious antitrust debates,
specifically whether Android unfairly favored Google’s applications and the extent to which
antitrust law should consider free speech. However, the issue is far simpler. Google is suppressing
a rival simply to restrict another form of competition from the market, which is illegal under even
the most conservative consumer welfare analysis. Google goes far beyond its exclusionary conduct
in other Android cases. Google’s conduct is anti-competitive and illegal, regardless of the larger
questions about free speech and Google’s conduct with Android.
II. FACTUAL AND ECONOMIC BACKGROUND

A. FREE SPEECH IS ESSENTIAL TO GAB’S BUSINESS MODEL.
Gab.AI was launched in 2016 with the mission "to put people and free speech first.”1 This
philosophy is not radical. Until a few years ago, major social media companies made free speech
1
Charlie Nash, Meet the CEO of Gab, the Free Speech Alternative to Twitter, BREITBART (Aug. 23,
2016), http://www.breitbart.com/tech/2016/08/23/meet-the-ceo-of-gab-the-free-speech-alternative-to-
twitter/.
1
a core principle. Twitter called itself “the free speech wing of the free speech party.”2 In 2013, the
New York Times explained, “Twitter has deftly built something of a reputation for protecting free
speech, even unpopular speech.”3 It had no rules against “hate” until April 2015.4
Twitter was not alone. YouTube initially declined requests from the Obama administration
to remove a controversial anti-Islamic video, which provoked riots across the world.5 Reddit
initially declined calls to censor controversial or vulgar content and only began to ban “hate
speech” in 2015.6
However, over the last few years, the vast majority of major social media companies,
including Facebook, Twitter, Reddit, Tumblr, Medium, Snapchat, and Instagram, as well as
Google’s social media applications YouTube and Google+, have adopted “hate speech”
regulations, which many believe are used to censor controversial but respectful opinions on hot
button issues such as immigration and crime.7 Concern over ideological based social media
2
Somni Sengupta, Censoring of Tweets Sets Off #Outrage, NY TIMES, Jan. 27, 2012,
http://www.nytimes.com/2012/01/28/technology/when-twitter-blocks-tweets-its-outrage.html.
3
Somni Sengupta, Twitter’s Free Speech Defender, NY TIMES, Sep. 2, 2012,
http://www.nytimes.com/2012/09/03/technology/twitter-chief-lawyer-alexander-macgillivray-defender-
free-speech.html.
4
Issie Lapowsky, Why Twitter is Finally Taking a Stand Against Trolls, WIRED (Apr. 21, 2015),
https://www.wired.com/2015/04/twitter-abuse/.
5
Craig Timberg, Google’s restricting of anti-Muslim video shows increasing clout of Web firm, WASH.
POST, Sep. 12, 2012, https://www.washingtonpost.com/business/economy/googles-restricting-of-anti-
muslim-video-shows-role-of-web-firms-as-free-speech-.arbiters/2012/09/14/ec0f8ce0-fe9b-11e1-8adc-
499661afe377_story.html.
6
Reddit will not ban 'distasteful' content, chief executive says, BBC, Oct. 12, 2012,
http://www.bbc.com/news/technology-19975375; Kimberlee Morrison, Reddit Announces New Content
Policy, ,Bans Hate-Based Subreddits, AD WEEK DIGITAL (Aug. 6, 2016),
http://www.adweek.com/digital/reddit-announces-new-content-policy-bans-hate-based-subreddits/.
7
Brian Heater, What Facebook, Twitter, YouTube and others are doing to tackle hate speech, TECH
CRUNCH (Aug. 15, 2017), https://techcrunch.com/2017/08/15/what-facebook-twitter-youtube-and-others-
are-doing-to-tackle-hate-speech/.
censorship is not limited to the Right. The progressive non-profit Pro-Publica has argued that
Facebook unfairly censors content from Black Lives Matters supporters.8
Gab’s founders Andrew Torba and Ekrem Büyükkaya agreed with these concerns and also
saw them as a business opportunity. Every user upset about Twitter, YouTube, Reddit, or
Facebook censorship was a potential customer. As Torba explained, "there is a very clear market
need,” for the “millions around the world do not feel comfortable speaking freely or using social
platforms that extort users for their data and profit, while at the same time censoring their ideas
and influencers. It’s not just conservatives either, we are attracting a diverse group of people who
all want one thing: to speak freely online.”9
Gab was founded to restore the values of these older companies. Contrary to the claims of
many antagonists, Gab is not an “Alt Right,” white supremacist, or even a conservative social
network. From its inception, Gab’s express mission has been to be appeal to people of all races
and political persuasions who support the free flow of information. As Torba said upon its launch,
“Gab is not FOR any particular group of people, political leaning, race, beliefs, or anything.
Anybody is welcome to express themselves on Gab.”10 Its founders’ backgrounds manifest this
worldview. Torba is a conservative Christian. Büyükkaya is a Kurdish Muslim who personally
opposed President Donald Trump’s campaign. Utsav Sanduja, Gab’s chief communications officer
and global affairs director, is an Indian-Canadian of Hindu descent.
8
Juila Angwin & Hannes Gressegger, Facebook’s Secret Censorship Rules Protect White Men From Hate
Speech But Not Black Children (June 28, 2017), https://www.propublica.org/article/facebook-hate-
speech-censorship-internal-documents-algorithms.
9
Kassy Dillon, Introducing ‘Gab’: Free speech Twitter alternative, RED ALERT POLITICS (Aug. 21,
2016), http://redalertpolitics.com/2016/08/21/introducing-gab-free-speech-twitter-alternative/.
10
Alex Pitti, Gab Is Coming For Twitter, SEEKING ALPHA (Sep. 15, 2016),
https://seekingalpha.com/article/4006423-gab-coming-twitter.
Despite inherent obstacles for a social media start up, such as network effects, Gab has
seen strong growth. It launched its beta version on August 15, 2017, and became open to the public
on May 8, 2017. In February 2017, it launched GabTV, an online video platform, and in March, it
launched GabPro, a paid subscription service with added benefits. Gab has 225,000 registered
users making over a million posts a month and 1,950 paid GabPro subscribers. While this is a
small fraction of the larger platforms, Gab has done this with no big name investors, raising an
initial one million dollars of start up from crowdfunding.11
B. GOOGLE PLAY’S CENSORSHIP OF GAB IGNORED GAB’S MODERATION POLICIES.

In May 2017, Gab applied for and was approved under the normal channels for inclusion
to the Google Play store. On August 17, 2017, the company received a message from Google Play
that it had “been suspended and removed from Google Play as a policy strike because it violates
the hate speech policy.”12
Google issued a statement that Gab failed to “demonstrate a sufficient level of moderation,
including for content that encourages violence and advocates hate against groups of people.” It
described this as “a long-standing rule and clearly stated in our developer policies.”13
Google Play’s terms prohibit “hate speech,” which it defines as “apps that advocate against
groups of people based on their race or ethnic origin, religion, disability, gender, age, nationality,
veteran status, sexual orientation, or gender identity.”14
11
David Z. Morris, Uncensored Social Network Gab Raises $1 Million in Crowdfunding Campaign,
FORTUNE, Aug. 18, 2017, http://fortune.com/2017/08/18/uncensored-social-network-gab-raises-1-
million-in-crowdfunding-campaign/.
12
https://twitter.com/getongab/status/898314927697416192.
13
Timothy Lee, Google explains why it banned the app for Gab, a right-wing Twitter rival, ARS
TECHNICA (Aug. 18, 2017), https://arstechnica.com/tech-policy/2017/08/gab-the-right-wing-twitter-rival-
just-got-its-app-banned-by-google/.
14
Restricted Content: Hate Speech, GOOGLE PLAY DEVELOPMENT CTR.,
https://play.google.com/about/restricted-content/hate-speech/ (accessed Sep. 17, 2017).
Gab itself does not advocate hate speech; its terms state that it “treats all people with respect
and dignity, regardless of their background, origins and point of view.” 15 While Gab prohibits
hateful rhetoric that advocates violence or illegal activity and allows users to block hateful speech,
it does not forbid any speech based solely on viewpoint. Gab has enforced this policy, banning
high profile far right accounts such the hacker “Weev,” which it removed after he called for the
“eradication” of Jews.16
Google Play also has terms for “User Generated Content,” (UGC), requiring apps to “take
additional precautions in order to provide a policy compliant app experience,” specifically by
defining and prohibiting objectionable content via terms of service, implementing a system to
report content, and blocking users.”17 Gab has such terms and gives users ability to report and
block objectionable content.18
Gab’s apparent violation is having a different conception of “objectionable content” as
Google by not blocking hate speech.
C. GOOGLE HAS A MONOPOLY IN THE SMARTPHONE OPERATING SYSTEM PLATFORM AND

APPLICATION DISTRIBUTION MARKET.
Seventy Seven percent of all Americans, including 92% of millennials, and 88% of people
under 49 own a smartphone.19 The iOs (which all iPhones run) and Android operating systems are
15
Community Guidelines, GAB AI, Jan. 2, 2017, https://gab.ai/about/guidelines.
16
Open Letter to Gab Investors, WEEV (Sep. 18, 2017), http://weev.net/open-letter-to-gab-
investors/.
17
Restricted Content: User Generated Content, GOOGLE PLAY DEVELOPMENT CTR. (accessed Sep. 17,
2017), https://play.google.com/about/restricted-content/user-generated-content/
18
Gabs terms state that it “empowers users to filter and remove unwanted followers, words, phrases, and
topics they do not want to see in their feeds.” It also enforces rules against prohibited content by adding
"#NSFW tags to all pornographic, debauched and concupiscent video and/or image content," and
provides for the "immediate extirpation of any and all illegal content," as well as the "intermittent,
temporary, permanent suspension of account(s), or an outright expulsion from Gab and its services." Id.
19
Mobile Fact Sheet, PEW RES. CNTR. (Jan 12, 2017), http://www.pewinternet.org/fact-sheet/mobile/.
on 99.6% of all new smartphones, with Android taking 81.7%.20 Under some market definitions,
Android has over 90% market share.21 Additionally, 65% of all tablets run on Android.22
Google and its defenders argue that Android is not a monopoly and does not have
significant market power in spite of its enormous market share because “iPhones and Android-
based smartphones are pretty interchangeable.”23 Regardless of this argument’s merits, it only
applies to horizontal competition between iOs and Android, not the effect of Android’s vertical
restraints. Even if Android and iOs had cross elasticity of 1.0, when Android excludes an app, it
cannot reach 82% of the market.
D. GOOGLE HAS DOWNSTREAM SUBSIDIARIES, WHICH COMPETE AGAINST GAB AND HAVE
MONOPOLIES OR ARE ATTEMPTING TO MONOPOLIZE THESE MARKETS.
Google has two main social media subsidiaries competing against Gab: YouTube and
Google+. In addition, Google has a close partnership with Twitter, which gives the company a
vested interest in the Twitter’s success. This White Paper does not engage in any sophisticated
analysis of market definition through brand cross-elasticity. However, Google’s dominance is so
obvious that if the FTC investigates or if Gab’s lawsuit against Google reaches the market
definition stage, the courts and regulators will certainly find market power. This became especially
apparent given Gab’s exceptional growth in the days after major social media companies,
20
James Vincent, 99.6 percent of new smartphones run Android or iOS, THE VERGE (Feb. 16, 2017),
https://www.theverge.com/2017/2/16/14634656/android-ios-market-share-blackberry-2016.
21
See Jakob Kucharczyk, Android, iOS And Market Power – What Does Mobile Platform Competition
Really Look Like?, COMPETITION POL'Y INT'L, Jan 17, 2017,
https://www.competitionpolicyinternational.com/android-ios-and-market-power-what-does-mobile-
platform-competition-really-look-like/ (noting E.U. found Google held more than 90 percent in the
market for licensable smart mobile operating systems").
22
Ewan Spence, Apple's Continued Domination Of A Shrinking Tablet Market, FORBES (Aug. 2, 2016),
https://www.forbes.com/sites/ewanspence/2016/08/02/apple-ipad-pro-market-share/#28aedc235d1f.
23
Kucharczyk, supra note _.
including YouTube and Twitter, significantly increased censorship immediately before Google
Play banned it.
1. YouTube has a monopoly on streaming video and competes against GabTV.
The user generated video platform YouTube comes preinstalled in almost all Android phones.
In July of 2017, Americans collectively spent 9.5 billion hours watching streaming videos on
YouTube.24 The next nine most popular streaming video apps, combined, only had one fourth of
this viewership.25 This actually understates YouTube’s dominance in the market for user-generated
video because all but one of these apps (Twitch) exclusively run licensed videos (e.g. Hulu, ESPN,
and Amazon.)26 Among all online video services (not just mobile), YouTube received 78.8% of
all traffic, while the next two largest sharing platforms—Vimeo and Daily Motion—received 0.8%
and 0.6%.27
GabTV was launched to appeal to consumers unhappy with YouTube’s censorship. Like
YouTube, Gab allows users to upload and stream their own videos. Gab distinguishes itself from
YouTube and other video sharing platforms such as Vimeo by not censoring content based on
viewpoint. Gab competes against these platforms by appealing to streaming video consumers who
oppose political censorship.
24
Lexi Sydow, Video Streaming Apps: The Real Emmy Winners, APP ANNIE (Sep. 13, 2017),
https://www.appannie.com/en/insights/top-trending-apps/video-streaming-apps-emmys/.
25
Id.
26
Id.
27
See MarketingCharts, Leading multimedia websites in the United States in November 2016, based on
market share of visits, STATISTA, https://www.statista.com/statistics/266201/us-market-share-of-leading-
internet-video-portals/ (last visited Sep. 17, 2017) (citing data from Hitwise).
2. Google+ competes against Gab.
Although less popular than YouTube, Google has a social media app, Google+. When
Google+ launched in 2011, Facebook’s Mark Zuckerberg reportedly had the company enter a
"lockdown" state out of fear that Google+ would overtake them.28
While Google+ failed to dethrone Facebook, it rebooted to focus on building sub-
communities for online commenting “focused around [common] interests.”29 Similarly, Gab
organizes its posts in “topics” to allow posters to communicate on common interests.
Despite Google+’s small market share, as evinced by its attempt to overtake Facebook, it
had tried to gain dominance in the social media market, and it still competes in this market along
with other Google subsidiaries and partners.
3. Google’s partnership with Twitter gives it further market power in the social media
marketplace.
Google has an active partnership with Twitter. In 2015, Twitter granted access to its
“firehose,” which allows Google to receive instant access to tweets as they are posted. Neither
party disclosed the exact terms of the agreement, but Twitter’s then CEO Dick Costolo described
it as “data licensing revenues for third-party partnerships.”30
This benefits Google against other search engines because Twitter is a major source for
breaking news. This became even more advantageous to Google after it agreed to stop “scraping”
data from competing websites in 2013. An FTC investigation of the company expressed concern
28
Jilian D'Onfro, Mark Zuckerberg was so scared of Google Plus he declared a company-wide
'Lockdown', BUS. INSIDER (Jun. 3, 2016) http://www.businessinsider.com/mark-zuckerberg-declared-war-
on-google-plus-2016-6?r=UK&IR=T.
29
Introducing the new Google+, GOOGLE OFFICIAL BLOG (Nov. 17, 2015),
https://googleblog.blogspot.com/2015/11/introducing-new-google.html.
30
Ingrid Lunden, Twitter Confirms Google Firehose Deal To Target Logged Out Users, TECH CRUNCH
(Feb. 5, 2015), https://techcrunch.com/2015/02/05/twitter-confirms-new-google-firehose-deal-to-
distribute-traffic-to-logged-out-users/.
that this practice was anti-competitive, and Google consented to cease the practice before the FTC
made a formal ruling against it.31 Google also prioritizes Google+ results. This partnership also
makes Twitter invested in Google’s dominance because Google now places tweets atop many
Google search results.
While Gab competes against many social networks, Twitter is undoubtedly Gab’s largest
competitor. Gab even dubbed itself the “Free Speech Alternative to Twitter.”32
E. ACCESS TO GOOGLE PLAY IS ESSENTIAL FOR ANDROID APPS TO COMPETE.

It is technically possible to install Android apps outside of the Google Play store. However,
these apps have greater security concerns, less features, and are much more difficult for consumers
to access.
The vast majority of Android users download their apps from its official app store Google
Play, which is preloaded on all Android devices. No statistics exist on how many apps are
downloaded elsewhere. The only marginally significant competitor is Amazon Underground. Apps
installed on both systems receive approximately five times more downloads from Google Play
than Amazon.33
Installing apps outside of Google Play is complicated and risky. Google Play has strong
malware and virus protections that are not available elsewhere. In order to install an outside app,
users need to change their security settings and accept a disclaimer that “Installing from unknown
sources may be harmful to your device and personal data. By tapping OK, you agree that you are
solely responsible or any damage to your device or loss of data that may result from using these
31
In the Matter of Google Inc., FTC File Number 111-0163 (Jan. 3, 2013).
32
Charlie Nash, Meet the CEO of Gab, the Free Speech Alternative to Twitter, BREITBART (Aug. 23,
2016), http://www.breitbart.com/tech/2016/08/23/meet-the-ceo-of-gab-the-free-speech-alternative-to-
twitter/.
33
Google Play v. Amazon App Store, Erminesoft, https://erminesoft.com/google-play-vs-amazon-app-
store/ (last accessed Sep. 18, 2017).
applications.”34 This has led major computer publications to write headlines like, “Never Ever
(Ever) Download Android Apps Outside of Google Play.”35
Apps installed outside of Google Play have no access to Google Play Services, which
allows users to set up automated updates and grants access to integrate the app with other Google
features such as Google+ and Google Maps. As Google described it, “Google Play services gives
you the freedom to use. . . Google services without worrying about device support,” which makes
“it easy for you to focus on what's important: your users' experience.”36
III. LEGAL ANTITRUST ARGUMENT

Many leading scholars debate the extent that free speech should be considered as a special
concern in antitrust policy. Some, including leading progressive academics like Tim Wu and
prominent conservatives like Tucker Carlson and Steve Bannon, have gone as far as advocating
public utility regulations to ensure free speech on social media.37
However, Gab’s case is not based upon an expansive view of antitrust law. As Acting FTC
Chair Maureen Ohlhausen notes in an article criticizing giving speech special consideration,
traditional antitrust analysis can “promote nonpecuniary values like openness and free speech”
34
Ben Woods, How to install apps from outside the Google Play store, Android Pit (accessed Sep. 17,
2017) https://www.androidpit.com/install-apps-outside-of-google-play.
35
Lily Hay Newman, Wired (Dec. 4, 2016) https://www.wired.com/2016/12/never-ever-ever-download-
android-apps-outside-google-play/ See also Dan Graziano, How to install apps outside of Google Play,
CNet (Sep. 12, 2013, update May 26, 2017), https://www.cnet.com/how-to/how-to-install-apps-outside-
of-google-play/ (Due to increased security concerns, CNET no longer recommends installing third-party
apps not officially supported by a device's official app store.).
36
Overview of Google Play Services, Google APIs for Android (accessed Sep. 17, 2017).
https://developers.google.com/android/guides/overview.
37
because “consumers care about a host of qualities for Internet access, not just price, and antitrust
protects market forces, which respond to consumer demand under competition.”38
Under this modest framework, Google’s conduct is a textbook case of a monopoly in an
upstream market completely denying access to its services to disadvantage a competitor in a
downstream market.
This said, in the last four decades, courts and regulators have limited the application of per
se rules against non-vertical restraints. The Supreme Court has only issued a few decisions on non-
price restraints, and the circuit courts have sometimes decades old unresolved splits on the limits.
As detailed below, Google’s conduct is a prima facie violation of Essential Facilities and
Monopoly Leveraging doctrines. Even if one does not accept these as per se rules, Google’s market
power in both the upstream and downstream markets along with the extreme nature of its restraints
against Gab still constitute anti-competitive conduct under the most permissive Rule of Reason
analysis.
A. GOOGLE HAS COMMITTED PER SE ANTITRUST VIOLATIONS.
1. Essential Facilities Doctrine
The essential facilities doctrine finds violations of Section 2 if there is “(1) control of the
essential facility by a monopolist; (2) a competitor's inability practically or reasonably to duplicate
the essential facility; (3) the denial of the use of the facility to a competitor; and (4) the feasibility
of providing the facility.”39
38
Antitrust over Net Neutrality: Why we should take Competition in Broadband Seriously, 15 COLO.
TECH. L.J. 119, 122 (2016).
39
MCI Communications Corp. v. American Tel. and Tel. Co., 708 F.2d 1081, 1132-33 (7th Cir. 1983).
A facility is essential when “an alternative to the facility is not feasible,” which means
denial is more than an “inconvenience, or even some economic loss.”40 Additionally, it must have
“the power to eliminate competition in a downstream market.”41 As noted, the vast majority of
Android users get their apps through Google Play, downloading apps outside of the app store have
a far greater risk of malware, and Google Play has many features tied directly to the Android phone
that are not available elsewhere.
The other elements are obviously met. There are literally millions of mobile apps, which
an intelligent high schooler could learn how to create on his or her own. There are only two
significant smartphone operating systems, both of which were created by the two wealthiest
corporations in the world (Apple and Alphabet), and are multibillion dollar businesses. Google
banned Gab from the platform and would only restore access it if it abandoned its distinguishing
feature—free speech—from its competitors. Finally, Google Play hosts over three million apps
and had already hosted Gab before kicking it out. 42
2. Monopoly Leveraging Doctrine
Monopoly leveraging occurs when a monopoly in an upstream market uses its power in
one market to anticompetitive effects in another market that it does not necessarily have market
power in. A defendant is liable of monopoly leveraging if it “(1) possessed monopoly power in
one market; (2) used that power to gain a competitive advantage over “its competitor” in a “distinct
market” and “(3) caused injury by such anticompetitive conduct.”43 This must lead to
monopolistic-like effects such as “higher prices or reduced output or quality associated with the
40
Labs., Inc. v. Weider Health & Fitness, 900 F.2d 566, 570 (2d Cir. 1990).
41
Paladin Assocs., Inc. v. Montana Power Co., 328 F.3d 1145, 1163 (9th Cir. 2003).
42
Gene Marks, Google just made its Play Store apps a little better, Aug. 10, 2017, WASH. POST,
https://www.washingtonpost.com/news/on-small-business/wp/2017/08/10/google-just-made-its-play-
store-apps-a-little-better/.
43
Virgin Atl. Airways Ltd. v. British Airways PLC, 257 F.3d 256, 272 (2d Cir. 2001).
kind of monopoly that is ordinarily accompanied by a large market share” in the secondary
market.44
Under this theory, Google’s violation is self-apparent. Google has monopoly power in the
smartphone operating system market. It used that power to completely exclude Gab from the app
market. And even if Google did not have market power in the downstream market, its conduct
resulted in reduced consumer choice and quantity by excluding the opportunity for a free speech
alternative.
The monopoly leveraging doctrine is not universally accepted. In a footnote in Verizon. v.
Trinko, the Supreme Court stated:
To the extent the Court of Appeals dispensed with a requirement that there be a
“dangerous probability of success” in monopolizing a second market, it erred. In
any event, leveraging presupposes anticompetitive conduct, which in this case
could only be the refusal-to-deal claim we have rejected.45
It’s not clear whether this constitutes a requirement for market power in the secondary market.46
Regardless, as previously explained, Google has monopoly power in the secondary market online
video platform market through YouTube and has a strong possibility of monopolizing the social
media app market. Therefore, it is still liable, even under the stricter requirement.
Furthermore, the Supreme Court has effectively applied this doctrine in cases where the
market power on the upstream doctrine is sufficiently high and anticompetitive effects are obvious.
In NCAA v. University of Oklahoma, the NCAA had clear market power over the market for college
44
Id. (internal quotations and citations omitted).
45
Verizon Commc'ns Inc. v. Law Offices of Curtis V. Trinko, LLP, 540 U.S. 398, 415 fn. 4 (2004).
46
See Monopoly leveraging, Holmes & Mangiaracina, ANTITRUST LAW HANDBOOK § 3:1 (last updated,
Nov. 2016) (noting that the phrasing “‘[i]n any event, leveraging presupposes anticompetitive conduct’
might be construed as conceding the possible existence of monopoly leveraging as a discrete offense
under § 2, provided that the defendant's conduct poses a meaningful threat of higher prices, reduced
output or other actual market injury in the second market indicative of the exploitation of monopoly
power”).
athletics and broadcasting. It did not need to establish a clear market definition for the downstream
advertising market when “the NCAA television restrictions have reduced output, subverted viewer
choice, and distorted pricing.”47 The Supreme Court noted that “because a judgment about market
power is the means by which the effects of the conduct on the market place can be assessed, market
power is only one test of ‘reasonableness.’”48 Thus, when “no countervailing competitive virtues
are evident, a lengthy analysis of market power is not necessary.”49
B. EVEN IF IT DID NOT COMMIT A PER SE VIOLATION, GOOGLE VIOLATED THE SECTION 2 OF THE
SHERMAN ACT UNDER A RULE OF REASON ANALYSIS
The courts have strongly restricted per se violations on non-price vertical restraints.50
However, the FTC has noted “entry deterrence” as a major anticompetitive effect from vertical
restraints under the rule of reason.51 This is the ultimate basis of Gab’s argument.
The Sherman Act states prohibits “(1) the possession of monopoly power in the relevant
market and (2) the willful acquisition or maintenance of that power” which is not based on “a
superior product, business acumen, or historic accident.”
As detailed in the economic section, Google has an overwhelming monopoly power
upstream in the smartphone operating market, controlling 82% of new sales with Android, and the
distribution of apps through Google Play. Downstream, it has monopoly power in the online video
platform market through YouTube and has significant market power through YouTube, Google+,
47
Nat'l Collegiate Athletic Ass'n v. Bd. of Regents of Univ. of Oklahoma, 468 U.S. 85, 110, 104 S. Ct.
2948, 2965, n.42 (1984) (quoting the Solicitor General’s amicus brief approvingly with the preface “The
Solicitor General correctly observes:”).
48
Id.
49
Id.
50
See D. Daniel Sokol, The Transformation Of Vertical Restraints: Per Se Illegality, The Rule Of Reason,
And Per Se Legality, 79 ANTITRUST L.J. 1003 (2014).
51
Roundatable on Vertical Restraints for Online sales at 7, Note by the United States FTC for OECD
(Feb. 25, 2013), https://www.ftc.gov/sites/default/files/attachments/us-submissions-oecd-and-other-
international-competition-fora/1302verticalrestraints-us.pdf.
and its partnership with Twitter in social media app market. And even if some of these are
contested, the Supreme Court has held that under the rule of reason, “as a matter of law, the absence
of proof of market power does not justify a naked restriction on price or output.”52
In determining the reasonableness of restraints, the court applies a burden shifting and
balancing test. In Continental T. V., Inc. v. GTE Sylvania Inc., the leading case on non-price
vertical restraints under the rule of reason, the Court weighed “all of the circumstances of a case
in deciding whether a restrictive practice should be prohibited as imposing an unreasonable
restraint on competition.”53 In making the decision of what’s reasonable, the court considers “the
restraint's history, nature, and effect.”54
This typically involves a “burden-shifting balancing analysis that weighs the respective
competitive merits and demerits of the challenged restraint with a view toward ultimately assessing
whether the restraint has ‘unreasonably’ restrained overall inter-brand competition within the
affected market.”55 Ultimately, the “overarching standard is whether defendants' actions diminish
overall competition and hence consumer welfare.”56
1. Google banning Gab is a naked restriction on competition.
The nature, effect, and history of Google’s restraint all point to anti-competitive conduct.
Google completely banned Gab from participating on its platform, which has crippled its ability
to compete. Because of Android’s monopoly, excluding an app from the Google Play store creates
a crippling disadvantage in the social media app market, or any app market. It becomes much more
52
NCAA, 468 U.S. at 109.
53
433 U.S. 36, 49 (1977).
54
State Oil Co. v. Khan, 522 U.S. 3, 10 (1997).
55
Governing "rule of reason" standard, 2 HOLMES, INTELLECTUAL PROPERTY AND ANTITRUST LAW §
32:2 (last updated, Sep. 2017).
56
The overarching standard is whether defendants' actions “diminish overall competition, and hence
consumer welfare.” K.M.B. Warehouse Distributors, Inc. v. Walker Mfg. Co., 61 F.3d 123, 128 (2d Cir.
1995).
difficult for consumers to find and install it, they will have less assurances that it is free of malware,
and the app itself becomes less convenient for consumers to use because it is not tied to Google
Play Services. Looking at Google’s defenses against other claims of other Android vertical
restraints helps demonstrate just how extreme it’s restrictions on Gab are.
The vast majority of Android phones are not manufactured by Google. Rather, the Original
Equipment Manufacturers (OEM) and Google enter into a Mobile Application Distribution
Agreement (MADA), with Google. Google has been accused of using these agreements to favor
its search engine and web browser at the expense of rival apps, by encouraging them to preinstall
it. The E.U. expects to issue another multi-billion Euro antitrust fine against Google for these
practices, and the Russia Federation has already found this to be anticompetitive practice.
Domestically, Google faces an active FTC investigation and fought off private antitrust litigation
over Android.57
Google responds by citing its willingness to allow competitors to use Google Play. In a
motion to dismiss to a class action complaint, Google argued that MADAs do not “prevent rival
search engines” from downloading or using competitors' products.” It contrasted “the MADA
requires OEMs to provide access to Google Play, which gives end users access to over one million
apps, including apps by Google's competitors (including rival search engines).”58 In response to
the E.U.’s investigation, Google’s general counsel downplayed the significance of having its apps
preinstalled because “consumers can easily choose which apps they want” and because
57
Jack Nicas & Brent Kendall, FTC Extends Probe Into Google’s Android, WALL ST. J., Apr. 26, 2016,
https://www.wsj.com/articles/ftc-extends-probe-into-googles-android-1461699217.
58
Motion to Dismiss, Feitelson v. Google, Inc. 2014 WL 3890845 (N.D.Cal.) (internal citations omitted).
“downloading and replacing an app or widget is simple — you can do it in thirty seconds.” It also
linked to a YouTube video on how to install rival a search engine through Google Play.59
This is not to suggest that every company has an obligation to deal with its rivals. In Trinko,
the Supreme Court severely limited restrictions on exclusionary conduct.60 It narrowed a past
decision, Aspen Skiing Co. v. Aspen Highlands Skiing Corp.,61 as the “outer boundary” of refusal
to deal. The two key factors it cited were that the monopoly in Aspen had previously “engaged in
a voluntary course of dealing with its rivals” and the service was “available to the public” rather
than under “compulsion and at considerable expense.”62 Similarly, Google had a history of
distributing Gab through Google Play, and the service is available to anyone—it hosts over three
million apps.
2. Removing Gab from the Google Play store has an entirely negative impact on consumer
welfare.
a. Social Media Consumers
In his “Facebook Manifesto,” Building Global Community, Mark Zuckerberg wrote:

we have different opinions on what we want to see and what is objectionable. I may
be okay with more politically charged speech but not want to see anything sexually
suggestive, while you may be okay with nudity but not want to see offensive
speech. . . And just as it's a bad experience to see objectionable content, it's also a
terrible experience to be told we can't share something we feel is important.63
Putting aside non-economic values on “free speech” and “hate speech,” this tension is the
key antitrust issue in social media censorship. More restrictions increase some consumers’ welfare
and decrease others. Most apps try to split the difference, but there are increasing aims to appeal
59
Kent Waler, Android: Choice at every turn, GOOGLE BLOG (Nov. 10, 2016),
https://www.blog.google/topics/google-europe/android-choice-competition-response-europe/amp/.
60
540 U.S. 398, 399 (2004).
61
Aspen Skiing Co. v. Aspen Highlands Skiing Corp., 472 U.S. 585 (1985).
62
540 U.S. at 399.
63
Building Global Community, FACEBOOK (Feb. 16, 2017), https://www.facebook.com/notes/mark-
zuckerberg/building-global-community/10154544292806634/.
to those more concerned about avoiding offense than free speech. YouTube’s community
guidelines state, “We want you to use YouTube without fear of being subjected to malicious
harassment.”64 Google's chairman Eric Schmidt expressed a desire to “de-escalate tensions on
social media” by removing “hate and harassment.”65 Twitter claims its rules are designed in “order
to protect the experience and safety of people who use Twitter.”66 Although Google never accused
Gab of facilitating harassment, it’s terms prohibit “user generated content (UGC) that lack
sufficient safeguards against threats, harassment.”67
Gab is aimed at the consumers who value free speech more than not viewing objectionable
content. Upon its launch, Torba said he created the app to fill the “very clear market need” for
“millions around the world do not feel comfortable speaking freely” on other social networks. The
hundreds of thousands of people who joined Gab speak to this market.
Because Gab is relatively small (and thus has no network effects that make consumers feel
compelled to use the platform, as is the case with larger platforms) and upfront about its speech
policies, those wishing to avoid hate speech and harassment lose nothing from its availability in
Google Play. Sensitive consumers can use Twitter, Facebook, YouTube, Reddit, and other
platforms with more censorship. However, by deterring its entry, Google has harmed the millions
of social media users who wish to use a platform where they can interact without fear of censorship.
64
Harassment and cyberbullying, YOUTUBE HELP, https://support.google.com/youtube/answer/2802268
(last accessed Sep. 17, 2017).
65
Eric Schmidt on How to Build a Better Web, NY TIMES, Dec. 7, 2015,
https://www.nytimes.com/2015/12/07/opinion/eric-schmidt-on-how-to-build-a-better-web.html.
66
The Twitter Rules, TWITTER HELP CENTER, https://support.twitter.com/articles/18311 (last accessed
Sep. 17, 2017).
67
Restricted Content: Bullying and Harassment, GOOGLE PLAY DEVELOPMENT CTR,
https://play.google.com/about/restricted-content/bullying-harassment/ (accessed Sep. 17, 2017).
b. The Advertising Market
Gab is “ad free,” so it does not compete against other apps for online advertising. However,
censorship policies affect these markets as well. According to the New York Times, YouTube’s
increased censorship responded to “deep-pocketed marketers announcing that they would pull their
ads from the service” if they appeared “next to offensive material on YouTube such as hate
speech.”68 In response to this campaign, Google's chief business officer Philipp Schindler
explained that their decision to ramp up censorship policies was “major steps [that] will further
safeguard our advertisers’ brands.”69
While there is nothing wrong with this from an antitrust perspective in isolation, it becomes
even more anticompetitive when combined with Google excluding Gab from its store. Google
made a tradeoff between consumers who like to view controversial material and pleasing
advertisers. Making it more difficult for those alienated consumers to access an alternative like
Gab, harms those consumers at Google’s own benefit.
3. Google has no pro-competitive justification for its restraint.
Under the rule of reason, “[i]f a plaintiff meets his initial burden of adducing adequate evidence
of market power or actual anti-competitive effects, the burden shifts to the defendant to show that
the challenged conduct promotes a sufficiently pro-competitive objective.”70 Google has no
competitive objectives, and even if it did, they are deficient.
68
Daisuke WakaBayashi & Sapina Maheshwari, YouTube Advertiser Exodus Highlights Perils of Online
Ads, NY. TIMES, Mar. 23, 2017, https://www.nytimes.com/2017/03/23/business/media/youtube-
advertisers-offensive-content.html.
69
Id.
70
Nat'l Soc'y of Prof'l Eng'rs v. United States, 435 U.S. 679, 691 (1978).
a. Google Play’s concern about “hate speech” on Gab is pretextual.
A legitimate business purpose is not legitimate if it’s pretextual. Under the essential
facilities doctrine, if the defendant has “met its burden to show its valid business justification,” the
“burden shifts to the plaintiff to show that the proffered business justification is pretextual,”71 while
under rule of reason, this must outweigh the anticompetitive harms.
While Google claimed that Gab violated clear rules, they were vague and arbitrarily
applied. Aside from “Bullying and Harassment,” Google Play does not specify what types of
content User Generated Content that must be banned, and it does not state or imply that UGC rules
must mirror Google Play’s other policies.
In fact, Google’s apparent insistence that Gab mirror its rules is atypical. Google Play’s
terms prohibit “apps that contain or promote sexually explicit content, such as pornography.” It
explains this to include “depictions of sex acts” and “apps that promote escort services.”72
However, Twitter’s terms explicitly allow “some forms of graphic content in Tweets,” while only
barring “pornographic” profile pictures.73 In practice, this means Twitter will not ban hardcore
pornographic tweets. Twitter has been described a “tool of escorts and prostitutes” and has not
deleted the account of some of the largest prostitution websites.74
71
Morris Communications Corp. v. PGA Tour, Inc., 364 F.3d 1288 (11th Cir. 2004).
72
Restricted Content: Sexually Explicit Content, GOOGLE PLAY DEVELOPMENT CTR,
https://play.google.com/about/restricted-content/sexually-explicit-content/ (accessed Sep. 17, 2017).
73
The Twitter Rules, TWITTER HELP CENTER, https://support.twitter.com/articles/18311 (accessed Sep.
17, 2017) (“You may not use pornographic or excessively violent media in your profile image or header
image. Twitter may allow some forms of graphic content in Tweets marked as sensitive media.” emphasis
added) In practice, this means that so long as users does have pornography in their profile or header
image, it is permitted.
74
Jonathan Marino & Joe Deaux, Congress to Launch Probe Into Escort and Prostitution Services on
Twitter, THE STREET (Jan. 30, 2014), https://www.thestreet.com/story/12277405/1/congress-to-launch-
probe-into-escort-and-prostitution-services-on-twitter.html.
Furthermore, Gab has never been accused of hosting any content from terrorist
organizations or that which promotes illegal activity such as drug dealing, illegal weapons sales,
or human trafficking. In contrast, major social media organizations including Facebook, YouTube,
and Twitter are widely criticized for not adequately restricting this illegal activity. 75
Selectively applying Google Play’s UGC policy to bar a competitor while not applying it
at all to its partners shows that this business justification was not made in good faith.
b. “Don’t Be Evil” is not a Pro-Competitive Defense.
Peter Thiel wrote that because of its monopoly power, “Google's motto—‘Don't be evil’—
is ... characteristic of a kind of business that is successful enough to take ethics seriously without
jeopardizing its own existence.”76 Although Google dropped its “don’t be evil” motto, it considers
fighting discrimination based on “race, gender, sexual orientation, religion, or citizenship status”
a key priority.77 As evinced by the company’s high-profile firing of James Damore, many believe
that even civil discussion of controversial issues is unacceptable. Google’s liberal bent is also
evinced in that its employees’ contributions went to former Democratic presidential candidate
Hillary Clinton.78
75
See e.g., Imran Awan, Cyber-Extremism: Isis and the Power of Social Media, 54 SOCIETY 138 (2017)
(noting that ISIS “has actively been using social media sites such as Twitter, Facebook and YouTube to
recruit new would be members”); Diana Falzone, Sex traffickers use social media to trick aspiring
models, experts say, FOX NEWS (Aug. 17, 2017), http://www.foxnews.com/lifestyle/2017/08/15/sex-
traffickers-use-social-media-to-trick-aspiring-models-experts-say.html (noting “predators of young
women are finding it easier than ever to capture their prey, thanks to social media apps like Instagram that
models use to promote their careers”); Leah Borromeo, Drug dealers using Instagram and Tinder to find
young customers, GUARDIAN (US EDITION) (Apr. 7, 2016), https://www.theguardian.com/sustainable-
business/2016/apr/07/drug-dealers-instagram-tinder-young-customers/.
76
Peter Thiel & Blake Masters, ZERO TO ONE 31 (2014).
77
Our Work: Inclusion, GOOGLE, https://www.google.org/our-work/inclusion/ (last accessed Sep. 18,
2017).
78
Joanna Pearlstein, Techies Donate to Clinton in Droves. To Trump? Not So Much, WIRED (Aug. 31,
2016), https://www.wired.com/2016/08/techies-donate-clinton-droves-trump-not-much/.
Unless it runs afoul of other laws, Google and its executives are well within their rights to
promote whatever ideological agenda they wish. However, this does not allow it to engage in anti-
competitive practices, even if they are motivated by what its executives believe is morally right.
The leading case on public welfare justifications is National Society of Professional
Engineers v. United States.79 The Society prohibited its members from engaging on competitive
bidding. On its face, the policy was a clear-cut restraint on price competition. However, the Society
argued that it prevented a race to the bottom, which would “tempt individual engineers to do
inferior work with consequent risk to public safety and health.”80 The Court responded that many
industries may believe restricting entry will improve safety, but the “judiciary cannot indirectly
protect the public against this harm by conferring monopoly privileges.”81 Citing this decision, the
Court held in FTC v. Superior Court Trial Lawyers Association that “social justifications proffered
for” a “restraint of trade thus do not make it any less unlawful.”82
To the extent that the court does entertain social welfare justifications, “the restraint only
survives a rule of reason analysis if it is reasonably necessary to achieve the legitimate objectives
proffered by the defendant.”83 No matter how lofty the goal, “[a] restraint on competition cannot
be justified solely on the basis of social welfare concerns.”84
This is an extremely high standard to meet. Courts have required defendants offering a
social welfare justification to show that (1) they “genuinely entertained a concern. . . .(2) that this
concern is objectively reasonable; (3) that this concern has been the dominant motivating factor in
79
435 U.S. 679 (1978).
80
Id. at 693.
81
Id. at 695-96.
82
F.T.C. v. Superior Court Trial Lawyers Ass'n, 93 U.S. 411, 412 (1990).
83
United States v. Brown Univ. in Providence in State of R.I., 5 F.3d 658, 678–79 (3d Cir. 1993).
84
Id. at 669. See also In re NCAA Student-Athlete Name & Likeness Licensing Litig., 37 F. Supp. 3d
1126, 1150 (N.D. Cal. 2014) (“The Supreme Court has made clear that antitrust defendants cannot rely on
these types of social welfare benefits to justify anticompetitive conduct under the Sherman Act.”).
defendants' . . . conduct intended to implement it; and (4) that this concern . . . could not have been
adequately satisfied in a manner less restrictive of competition.”85
Google’s concern over Gab’s lack of censorship is not reasonable because, as described,
Gab’s users choose to use the app knowing it allows offensive speech, so the usual concerns about
harassment and abuse do not apply. Every public welfare case discussed in this section involved a
non-profit organization or trade association, not a company valued at over $600 billion.
Furthermore, a publicly traded corporation cannot cite social welfare as the “dominating
motivating factor” for any decision without breaching its fiduciary duties towards its
stockholders.86 Finally, even if this was a legitimate concern, Google has many less restrictive
alternatives to address its problems, such as requiring disclaimers on the app store to ensure no
one who would be offended downloads the app.
c. Google has no legitimate business interest with public image, brand, or advertising for its
restraint.
Concern for protecting a brand’s image can be a legitimate business justification. A leading
case, Matrix Essentials. v. Emporium Drug Mart,87 involved a high-end shampoo manufacturer,
which would only sell its products to salons and not to drug stores.88 The court found that because
it was to “enhance appropriate product selection, or to enhance product public image,” the move
was not anti-competitive.
85
Wilk v. Am. Med. Ass'n, 719 F.2d 207, 227 (7th Cir.), adhered to, 735 F.2d 217 (7th Cir. 1983). The
quoted passage was challenged jury instructions over whether the exclusion of chiropractors was based on
a principle doctors must use accepted scientific methods. The court reversed and remanded the decision in
favor of chiropractors, but explicitly noted that these instructions were correct “if plaintiffs meet their
burden to show that the effect has been to restrict competition.” Id.
86
A corporation can make ideologically or charitably related driven decisions to improve their image and
reputation, which is discussed in the next subsection.
87
Matrix Essentials, Inc. v. Emporium Drug Mart, Inc., of Lafayette, 988 F.2d 587
(5th Cir. 1993).
88
Id. at 594.
Google could claim that it was motivated by protecting its image by not wanting to be
associated with “hate speech,” or even a platform that allowed it. While Google did not proffer
this explanation to Gab and has not stated it in the context of Google Play, as discussed above,
YouTube has cited concerns for advertising and images for its censorship.
This decision had costs and benefits. It benefitted YouTube’s reputation among those
advertisers. However, YouTube also faced very negative publicity from conservatives and those
concerned about free speech, and it lost some revenue from the videos it would not run and users
who abandoned the platform. Google is free to weigh these costs and benefits about its brand as it
wishes, but it cannot use its Android monopoly to manipulate YouTube’s costs and benefits at the
expense of consumer choice.
In United States v. Microsoft, the D.C. Circuit explained that when determining “whether
the monopolist's conduct on balance harms competition and is therefore condemned as
exclusionary for purposes of §2, our focus is upon the effect of that conduct, not upon the intent
behind it.” Evidence of intent is “relevant only to the extent it helps us understand the likely effect
of the monopolist's conduct.” 89 Regardless of intent, Google’s conduct excluded competitors who
have a different brand in order to limit the costs that YouTube will face for making that branding
decision.
To demonstrate this point, imagine if Matrix was the only premium shampoo manufacturer,
and that it owned a chain of hair salons. Matrix Salons refused to give Mohawk haircuts, because
in its legitimate business judgment, it believed that giving this haircut would harm its brand.
Similarly, Matrix refused to sell to any beauty salon which also gave Mohawks because it did not
89
U.S. v. Microsoft Corp., 253 F.3d 34, 59 (D.C. Cir. 2001) (citing Chicago Bd. of Trade v. United
States, 246 U.S. 231, 238, 38 S.Ct. 242, 62 L.Ed. 683 (1918) (“knowledge of intent may help the court to
interpret facts and to predict consequences”); Aspen Skiing Co. v. Aspen Highlands Skiing Corp., 472
U.S. 585, 603, 105 S.Ct. 2847, 86 L.Ed.2d 467 (1985)).
want its shampoo associated with the haircut. The result would be that anyone who wanted a
Mohawk could not get premium brand shampoo, and Matrix’s salons would face fewer
consequences for its decision. The would lead to higher prices for shampoo and fewer people
receiving the haircut they want. This would undoubtedly be anti-competitive, especially if Matrix
Salons also had market power in addition to it shampoo manufacturer.
d. Even if Google had some pro-competitive justification, it’s outweighed by the

other overwhelming negative costs.
A pro-competitive justification is not an absolute defense under the rule of reason. Rather,
the more extreme the restraint, the stronger pro-competitive basis must be to counteract it. “[I]n
applying the rule of reason, the courts, as with any balancing test, use a sliding scale to
determine how much proof to require.”90
Under this principle, courts determine “whether the anticompetitive effects of the practice
are justified by any countervailing pro-competitive benefits.”91 The word “countervailing” requires
“equal force.” This requires “balancing the restraint and any justifications or pro-competitive
effects of the restraint.”92
Assuming arguendo that Google has some procompetitive justification, it’s hard to imagine
any scenario that would sufficiently justify a company with monopoly power to give a naked
restriction to exclude a small competitor from secondary market where it had market power.
90
California Dental Ass'n v. F.T.C., 526 U.S. 756, 781 n. 15 (1999) (approvingly quoting Thomas
Piraino, Making Sense of the Rule of Reason: A New Standard for Section 1 of the Sherman Act, 47
VAND. L.REV. 1753, 1771 (1994)).
91
In re Ins. Brokerage Antitrust Litig., 618 F.3d 300, 316 (3d Cir. 2010).
92
Am. Ad Mgmt., Inc. v. GTE Corp., 92 F.3d 781, 789 (9th Cir. 1996) (internal citations omitted).
IV. SECTION 230 OF THE COMMUNICATIONS DECENCY

ACT DOES NOT GRANT GOOGLE PLAY IMMUNITY FOR
REMOVING GAB.
Section 230(c)(2) of the Communications Decency Act provides “interactive computer
services” (ICS)—meaning a system which “provides or enables computer access by multiple users
to a computer server”—immunity for their users’ content.93 It includes a “Good Samaritan”
provision, which protects an ICS from liability for “any action voluntarily taken in good faith to
restrict access to or availability of material that it “considers to be obscene, lewd, lascivious, filthy,
excessively violent, harassing, or otherwise objectionable, whether or not such material is
constitutionally protected.”94
Superficially, this could appear to protect Google Play from removing Gab. It claimed to
find objectionable content on Gab, such as hate speech, and removed it from its servers. However,
a closer look reveals that section 230 only applies to Google Play in certain instances; it is not
meant to protect against antitrust claims; Google’s conduct was not done in good faith; and “hate
speech” is not “otherwise objectionable” under the law.
A. SECTION 230(C)(2) DOES NOT PROVIDE ABSOLUTE IMMUNITY FOR GOOGLE PLAY.
In Spy Phone Labs LLC v. Google Inc., the Northern District of California court denied
absolute 230(c)2 immunity for Google Play. Google had removed Spy Phones’ app from the
Android store, initially claiming it had spyware. After Spy Phones showed that it complied with
Google Play’s policy, it was still banned on the grounds that it contained he word “spy,” which
93
47 U.S.C. §230(f)(2).
94
47 U.S.C. §230(c)(2).
does not violate the terms of use. Spy Phones filed suit against Google for a variety of trademark
and tortious interference claims.95
Google invoked section 230(c)(2) immunity, and Spy phones responded that it was
pretextual.96 The Court held that because there was no policy against having the word "spy" in the
name, “Google has not sufficiently established good faith at this juncture, and that § 230(c)(2)(A)
immunity cannot be determined at the pleading stage.”97
Similarly, Google Play has no terms requiring that an app’s UGC rules must mirror
Google’s hate speech policies. Thus, Gab could easily establish a lack of good faith.98
B. SECTION 230 COMPLEMENTS THE SHERMAN ACT, RATHER THAN PRECLUDES IT.
Section 230 was not meant to preclude the Sherman Act. As the Supreme Court has held,
“Where two statutes are complementary, it would show disregard for the congressional design to
hold that Congress intended one federal statute nonetheless to preclude the operation of the
other.”99 Section 230 was enacted with the explicit policy “to preserve the vibrant and competitive
free market that presently exists for the Internet and other interactive computer services.”100 This
complements the antitrust laws, which exist to promote “[f]ree and open markets” by enforcing
“the rules of the competitive marketplace.”101
The courts have expressed concerns about using section 230 to undermine antitrust. Judge
Raymond Fisher of the Ninth Circuit worried that an ICS could “flout users' choices by blocking
95
Spy Phone Labs LLC. v. Google Inc., No. 15-CV-03756-KAW, 2016 WL 6025469, at *1-3 (N.D. Cal.
Oct. 14, 2016).
96
Id. at *8.
97
Id.
98
Discussed supra §III(B)(3)(a).
99
Pom Wonderful LLC v. Coca-Cola Co., 134 S. Ct. 2228, 2238 (2014).
100
47 U.S.C. §230(b)(2).
101101
FED. TRADE COMM'N, Guide to Antitrust Laws, https://www.ftc.gov/tips-advice/competition-
guidance/guide-antitrust-laws (accessed Oct. 5, 2017).
competitors' content could hide behind § 230(c)(2)(B) when the competitor seeks to recover
damages.” He doubted “Congress intended § 230(c)(2)(B) to be so forgiving.”102
The Court of Common Pleas of Ohio also held that Google could not use § 230(c)(2) to
evade state antitrust liability for blocking a competitor’s e-mails as spam without proving a good
faith justification.103
C. EVEN IF GOOGLE PLAY BANNED GAB IN “GOOD FAITH,” IT CANNOT CLAIM A SECTION
230 DEFENSE BECAUSE HATE SPEECH IS NOT “OTHERWISE OBJECTIONABLE.”
As explained supra §III(B)(3), Google’s ban of Gab was pretextual and not taken in good
faith. Thus, its failure to use good faith as a defense for anti-competitive conduct would also
invalidate any section 230(c)(2) defense.
Regardless, Section 230(c)(2)’s “good faith” defense is limited to the material an ICS
“considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise
objectionable, whether or not such material is constitutionally protected.”104
No one goes on Gab without knowing it is a relatively unmoderated forum, so problems
with harassment do not occur.105 Gab bans violent speech, and Gab already has a NSFW filter,
similar to Reddit and Twitter, to moderate lewd, obscene, lascivious, and filthy material.106
Google’s problem is with Gab’s failure to moderate “hate speech.”
Gab moderates hateful speech that violates its other policies, but it does not censor based
on viewpoint. Google cannot claim that viewpoint neutrality is “otherwise objectionable.” This is
an ejusdem generis (“of the same kind”) term.107 As the Northern District of California court
102
Zango, Inc. v. Kaspersky Lab, Inc., 568 F.3d 1169, 1179 (9th Cir. 2009) Fisher, J., concurring).
103
Google, Inc. v. MyTriggers.com, Inc., 2011 WL 3850286 (Ohio Com.Pl.).
104
47 U.S.C. §230(c)(2).
105
Discussed supra §III(B)(2)(a).
106
Discussed supra §II(B).
107
Song Fi Inc. v. Google, Inc., 108 F. Supp. 3d 876, 883 (2008).
explained, “when a statute provides a list of examples followed by a catchall term (or ‘residual
clause’) like ‘otherwise objectionable,’ the preceding list provides a clue as to what the drafters
intended the catchall provision to mean.”108
As the Middle District of Florida noted,
One may find an array of items objectionable; for instance, a sports fan may find
the auction of a rival team's jersey objectionable. However, Congress provided
guidance on the term "objectionable" by providing a list of seven examples and a
statement of the policy behind section 230. Accordingly, the Court concludes that
"objectionable" content must, at a minimum, involve or be similar to pornography,
graphic violence, obscenity, or harassment.109
Hate speech is more akin to a “rival team’s jersey” than harassment, obscenity, or violence.
The seven examples it gives all have limited First Amendment protections. In contrast, “hate
speech,” is legally just another viewpoint.
In R.A.V. v. City of St. Paul, Minn., the Supreme Court noted the government can ban
violent threats against the president, but not “only those threats against the President that mention
his policy on aid to inner cities.” And while it can criminalize obscenity, it cannot ban “only that
obscenity which includes offensive political messages.”110 In other words, it judged viewpoints to
be distinct from “obscenity” and “violence.”
Under the law, “hate speech,” like any viewpoint based restriction, has no similarity to
“obscene, lewd, lascivious, filthy, excessively violent, [or] harassing,” and thus does not fall under
the catchall of “otherwise objectionable.”
108
Id.
109
Nat'l Numismatic Certification, LLC v. eBay, Inc., 2008 U.S. Dist. LEXIS 109793, *82.
110
505 U.S. 377, 388 (1992).
V. CONCLUSION
As demonstrated above, Google’s exclusion of Gab from the Google Play store was
arbitrary, anti-competitive, and in clear violation of federal antitrust laws. As noted, this analysis
was made under the narrowest and most conservative interpretation of the Sherman Act, rather
than under any broad view of the market power created by network effects or by making free
speech as an intrinsic good. Nonetheless, it’s impossible not to consider the larger issues of internet
censorship.
Those who support more free speech on social media should support Gab as one of the few
cases where there is a traditional antitrust claim related to censorship. Whatever the merits of
regulating Facebook and Google as a utility, it will require upending current antitrust jurisprudence
and face tremendous opposition. Gab’s lawsuit against Google will not singlehandedly stop Big
Tech’s control on speech, but it is a first step in showing that these companies cannot arbitrarily
use their market power to stamp out pro-free speech competitors.
Those who support social media’s content moderation policies should nonetheless want
Gab to flourish and succeed against Google. As explained, the typical concerns about harassment
do not apply to Gab, because all participants are aware of the potential risks. TechCrunch’s John
Constantine argued, “You want total freedom of speech? start your own damn blog or forum.”111
Gab tried to do just that, regardless of the obstacles of network effects and ideologically driven
advertisers. If it succeeds, there will be less pressure for the larger social networks to liberalize
their moderation policies. However, if Google successfully prevents any free speech competitor
from getting off the ground, then more calls for public utility regulation will follow.
111
Mark Epstein, Google's effort to undermine free speech strengthens case for regulating big tech, THE
HILL (Aug. 31, 2017), http://thehill.com/blogs/pundits-blog/technology/348742-googles-effort-to-
undermine-free-speech-strengthens-case-for.
Regardless, everyone who does not want a $600 billion corporation to use its monopoly
power to completely destroy a small competitor should take great interest in Gab’s fight against
Google.

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DRAFT: DO NOT CIRCULATE

MARKET POWER AND THE

questions about free speech and Google’s conduct with Android.

II. FACTUAL AND ECONOMIC BACKGROUND

Facebook unfairly censors content from Black Lives Matters supporters.8

all want one thing: to speak freely online.”9

worldview. Torba is a conservative Christian. Büyükkaya is a Kurdish Muslim who personally

and global affairs director, is an Indian-Canadian of Hindu descent.

initial one million dollars of start up from crowdfunding.11

B. GOOGLE PLAY’S CENSORSHIP OF GAB IGNORED GAB’S MODERATION POLICIES.

the hate speech policy.”12

veteran status, sexual orientation, or gender identity.”14

additional precautions in order to provide a policy compliant app experience,” specifically by

block objectionable content.18

Gab’s apparent violation is having a different conception of “objectionable content” as

Google by not blocking hate speech.

C. GOOGLE HAS A MONOPOLY IN THE SMARTPHONE OPERATING SYSTEM PLATFORM AND

cannot reach 82% of the market.

analysis of market definition through brand cross-elasticity. However, Google’s dominance is so

Play banned it.

1. YouTube has a monopoly on streaming video and competes against GabTV.

oppose political censorship.

2. Google+ competes against Gab.

"lockdown" state out of fear that Google+ would overtake them.28

While Google+ failed to dethrone Facebook, it rebooted to focus on building sub-

organizes its posts in “topics” to allow posters to communicate on common interests.

with other Google subsidiaries and partners.

it as “data licensing revenues for third-party partnerships.”30

Google search results.

E. ACCESS TO GOOGLE PLAY IS ESSENTIAL FOR ANDROID APPS TO COMPETE.

(Ever) Download Android Apps Outside of Google Play.”35

III. LEGAL ANTITRUST ARGUMENT

public utility regulations to ensure free speech on social media.37

protects market forces, which respond to consumer demand under competition.”38

Under this modest framework, Google’s conduct is a textbook case of a monopoly in an

upstream market completely denying access to its services to disadvantage a competitor in a

A. GOOGLE HAS COMMITTED PER SE ANTITRUST VIOLATIONS.

1. Essential Facilities Doctrine

essential facility by a monopolist; (2) a competitor's inability practically or reasonably to duplicate

of providing the facility.”39

that are not available elsewhere.

and had already hosted Gab before kicking it out. 42

2. Monopoly Leveraging Doctrine

The monopoly leveraging doctrine is not universally accepted. In a footnote in Verizon. v.

Trinko, the Supreme Court stated:

are evident, a lengthy analysis of market power is not necessary.”49

superior product, business acumen, or historic accident.”

As detailed in the economic section, Google has an overwhelming monopoly power

in deciding whether a restrictive practice should be prohibited as imposing an unreasonable

restraint's history, nature, and effect.”54

overall competition and hence consumer welfare.”56

1. Google banning Gab is a naked restriction on competition.

a. Social Media Consumers

In his “Facebook Manifesto,” Building Global Community, Mark Zuckerberg wrote:

harassment.”64 Google's chairman Eric Schmidt expressed a desire to “de-escalate tensions on

sufficient safeguards against threats, harassment.”67

hundreds of thousands of people who joined Gab speak to this market.

b. The Advertising Market

safeguard our advertisers’ brands.”69

Gab, harms those consumers at Google’s own benefit.

3. Google has no pro-competitive justification for its restraint.

the challenged conduct promotes a sufficiently pro-competitive objective.”70 Google has no

competitive objectives, and even if it did, they are deficient.