Sometimes high-profile political plaintiffs that sue media entities over allegedly biased actions are fortunate to have government agencies flex their regulatory muscles in ways aligning with their lawsuits. Two examples illustrate the seemingly hand-in-glove synergies between plaintiffs’ political interests and the leveraging––real or threatened via jawboning––of government power against defendants’ speech-based decisions.

In July 2024, a federal judge dismissed an amended complaint filed by the Republican National Committee (RNC) against Google that alleged the company’s Gmail service unlawfully discriminated against RNC fundraising emails by sometimes filtering large shares to spam folders. Daniel Calabretta ruled that the RNC failed to state actionable claims under both California’s Unfair Competition Law and the tort of intentional interference with prospective economic relations. He also rejected the RNC’s arguments that email providers are common carriers and that Google violated a California civil rights law by supposedly discriminating against the RNC due to its political affiliation. Beyond these matters, Republican National Committee v. Google raises important questions about the scope of liability protection Google receives under the federal statute called Section 230, as well as “the First Amendment rights of email providers” to organize and sort emails into categories as they see fit.

The RNC appealed to the US Court of Appeals for the Ninth Circuit, filing its opening brief in January. The RNC contends its “case is about the market-dominant communications firm’s unlawful discrimination against the [RNC] because of the RNC’s political affiliation.”

Google responded in April, calling the allegation of political discrimination in filtering some RNC emails to spam “demonstrably false.” Among other points, Google contends there’s “a common-sense explanation why Gmail flagged some of the RNC’s emails as potential spam: they appeared to be spam. Many Gmail users, in fact, were marking RNC emails as spam.” (Emphasis in original.) Oral arguments are slated for October 7.

Federal Trade Commission (FTC) Chairman Andrew Ferguson entered the scene on August 28, sending a letter to Alphabet CEO Sundar Pichai ominously captioned “Potential FTC Act Violations Related to Partisan Administration of Gmail.” Ferguson asserts that Alphabet (Google’s owner) “may be engaging in unfair or deceptive acts or practices” by “routinely block[ing] messages from reaching consumers when those messages come from Republican senders but fail[ing] to block similar messages sent by Democrats.” Referencing the RNC’s lawsuit, Ferguson writes that “similar concerns have resulted in ongoing litigation against Google.” He threatens to leverage the FTC’s statutory authority over “unfair or deceptive” trade practices via an “investigation and potential enforcement action” if “Gmail’s filters keep Americans from receiving speech they expect, or donating as they see fit.”

The playbook for such a harmonious, well-timed relationship between a conservative political plaintiff and a government agency targeting a business’s ostensibly biased speech-based decisions already exists. I’ve written about Donald Trump’s lawsuit against CBS for its alleged “partisan and unlawful acts of election and voter interference through malicious, deceptive, and substantial news distortion” in its editing of a 60 Minutes interview with Kamala Harris. Trump’s lawsuit––later amended to add Paramount Global (CBS’s owner) as the lead defendant––converged with the Federal Communications Commission reinstating on January 22 (two days after Trump became president) a previously dismissed investigation into a news distortion complaint over the Harris interview filed by the Center for American Rights (CAR).

CAR separately petitioned the FCC last December, asking it to investigate the merger between Paramount Global and Skydance Media. CAR claimed Paramount’s “CBS News division has exhibited improper ideological bias” and that there were “serious questions” regarding “Skydance Media’s ties to the Chinese Communist Party.”

Things ended happily for Trump in his lawsuit against Paramount Global and CBS: He scored a $16 million settlement in early July. Later that month––with Trump’s lawsuit resolved and out of the way––the FCC approved the $8 billion merger between Paramount Global and Skydance Media. Topping matters off, FCC Chairman Brendan Carr said the FCC secured commitments from Skydance to “adopt measures that can root out the bias that has undermined trust in the national news media” and “enable CBS to . . . focus on fair, unbiased, and fact-based coverage.” Those commitments included installing an internal “bias monitor” (officially an ombudsman) at CBS News. Paramount picked Kenneth Weinstein, former president and CEO of the Hudson Institute, to fill that role earlier this month. In sum, it was: private lawsuit settled, merger government approved, and reviewer of “editorial questions and concerns” at CBS News installed.

It is problematic in a democratic society when government agencies intermeddle (or threaten to do so) with the First Amendment-protected speech decisions of private businesses to eradicate what the government views as bias. It’s even more disturbing when the agencies do so in seemingly side-taking fashion amid civil lawsuits, bridging plaintiffs’ political interests with the government’s apparent desire to promote them.