A federal judge yesterday granted Google’s motion to dismiss a lawsuit filed by the Republican National Committee (RNC), which claims that Google intentionally used Gmail’s spam filter to suppress Republicans’ fundraising emails. An order dismissing the lawsuit was issued yesterday by US District Judge Daniel Calabretta.

The RNC is seeking “recovery for donations it allegedly lost as a result of its emails not being delivered to its supporters’ inboxes,” Calabretta noted. But Google correctly argued that the lawsuit claims are barred by Section 230 of the Communications Decency Act, the judge wrote. The RNC lawsuit was filed in October 2022 in US District Court for the Eastern District of California.

“While it is a close case, the Court concludes that… the RNC has not sufficiently pled that Google acted in bad faith in filtering the RNC’s messages into Gmail users’ spam folders, and that doing so was protected by Section 230. On the merits, the Court concludes that each of the RNC’s claims fail as a matter of law for the reasons described below,” he wrote.

Calabretta, a Biden appointee, called it “concerning that Gmail’s spam filter has a disparate impact on the emails of one political party, and that Google is aware of and has not yet been able to correct this bias.” But he noted that “other large email providers have exhibited some sort of political bias” and that if Google did not filter spam, it would harm its users by subjecting them “to harmful malware or harassing messages. On the whole, Google’s spam filter, though in this instance imperfect, is not morally blameworthy.”

Calabretta gave the RNC partial leave to amend its complaint, but any new version of the lawsuit will have to be very different to move forward. “The Court grants Defendant’s Motion to Dismiss in full on the ground that it is immune from suit on these facts under Section 230 with leave to amend to establish a lack of good faith,” the order said.

Judge: Gmail isn’t a common carrier

In January, the Federal Election Commission rejected a related RNC complaint that alleged Gmail’s spam filtering amounted to “illegal in-kind contributions made by Google to Biden For President and other Democrat candidates.” The federal commission found “no reason to believe” that Google made prohibited in-kind corporate contributions and said that a study cited by Republicans “does not make any findings as to the reasons why Google’s spam filter appears to treat Republican and Democratic campaign emails differently.”

The lawsuit in the US District Court “is not over” despite yesterday’s ruling, RNC Chairwoman Ronna McDaniel said in a statement quoted by Courthouse News Service. “The judge has given us leave to amend and re-file our complaint. This suit represents a crucial action against Big Tech’s anti-conservative bias. We look forward to filing our amended complaint and continuing this fight.”

While the RNC could eventually take this to a higher court, it faces a tough road in Calabretta’s courtroom. Even if Google weren’t entitled to Section 230 immunity, all of the RNC’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,” Calabretta’s order said.

The RNC, which argued that Gmail should be treated as a common carrier, conceded that its common carrier claim is barred by federal law but asked the court to apply California common carrier law to Google. “However, no court, much less a court interpreting California’s common carrier law, has found an email service provider to be a common carrier. This Court declines to be the first,” Calabretta wrote.

If the Republican group “were to amend its Complaint to seek injunctive relief only, the Court would likely dismiss the entire action for lack of subject matter jurisdiction,” the order said. “As Plaintiff has conceded, its only federal claim is not viable, and if Plaintiff proceeded only on its claims for injunctive relief, the monetary hook required for diversity jurisdiction would not be met. In that event, the state law claims would be subject to dismissal.”

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