SEATTLE—As state and federal lawmakers consider drafting new legislation to counter big tech censorship of dissenting political voices, few seem to realize that an anti-discrimination law already on the books could spell big trouble for big tech companies that engage in political censorship.
Ironically, the law was enacted by one of the most politically progressive cities in the country: Seattle.
Unlike most political jurisdictions in the United States, Seattle expressly forbids discrimination on the basis of “political ideology.” Seattle defines political ideology expansively as
any idea or belief, or coordinated body of ideas or beliefs, relating to the purpose, conduct, organization, function or basis of government and related institutions and activities, whether or not characteristic of any political party or group. This term includes membership in a political party or group and includes conduct, reasonably related to political ideology, which does not interfere with job performance.
Seattle’s sweeping ban on discrimination based on political ideology doesn’t just apply to employment or public accommodations. It also includes a “Fair Contracting Practices Ordinance” banning discrimination in contracting.
This is important because contracting includes almost anything a business does when interacting with consumers and other businesses. Whenever a business sells a product or a service to customers, it is contracting with those customers to provide something.
The potential reach of Seattle’s law is breathtaking. An attorney asked by Mind Matters News to review the law explains that
the definition of a “contract” covered by the ordinance means “any agreement to perform a service or provide goods that entails a legally binding obligation, where such contract is executed within, or intended to be wholly or partly performed within The City of Seattle.” A “contractor” means “any business enterprise” excluding landlords that are “contracting to do business within the city.” And the definition of “contractor” includes “vendors and suppliers selling or furnishing materials, equipment, goods or services.”
A person doesn’t necessarily have to live in Seattle or even Washington State in order to file legal action under the law. The attorney asked to review the ordinance for Mind Matters News adds:
a “person” entitled to protection under the ordinance includes one or more individuals or business entities. This definition does not impose any residency requirement. If a person enters into a contract with a business enterprise doing business in the City and the contract is performed at least in part within the City then the ordinance applies.
There are two ways individuals or groups can raise a complaint under Seattle’s anti-discrimination contracting ordinance: They can file an administrative complaint, or they can file a lawsuit. Unlike some civil rights laws, Seattle’s fair contracting ordinance does not require someone to file an administrative complaint before filing a lawsuit. They can file a lawsuit immediately.
The Seattle anti-discrimination law packs a punch. According to the attorney retained to analyze the law, the ordinance authorizes remedies available under Washington State law, and state law authorizes “actual damages plus the costs of bringing the suit… plus remedies authorized by the Civil Rights Act of 1964 and the Federal Fair Housing Amendments Act of 1988.” Those remedies include “injunctive relief, orders requiring affirmative action, and punitive damages.”
Damages requested under the law could be severe. The attorney says: “Although the administrative process appears to limit pain and suffering damages to $10,000, there is no similar limit on causes of action filed in court… Additionally, the ordinance makes expressly clear that damage awards for humiliation and mental suffering are not subject to the ordinance’s limits for the administrative process.”
Seattle’s fair contracting ordinance could spell big trouble in particular for Amazon.com.
Amazon is headquartered in Seattle, and so there is little question that the Seattle law applies to it with full force. In the words of the attorney retained by Mind Matters News, “under the ordinance… any individual or business entity who is allegedly harmed by an unfair contracting practice by Amazon most likely would have a cause of action in a court of law against Amazon.”
Amazon landed in hot water last month when its Amazon Web Services (AWS) company dropped web hosting services for Parler, the conservative social media platform. Amazon said it canceled the services because Parler hosted “content… that encourages and incites violence against others, and… Parler is unable or unwilling to promptly identify and remove this content, which is a violation of our terms of service.”
Parler claimed otherwise, arguing in federal court that such content violated its community guidelines and that it did act to remove the content. Parler’s federal lawsuit against Amazon faces an uphill battle because its agreement with Amazon Web Services explicitly grants Amazon the right to cancel its service for any reason without notice.
But Seattle’s anti-discrimination law would seem to supply Parler with another basis to sue Amazon in Washington State court.
Under Seattle’s fair contracting law, Amazon could still impose politically neutral standards on businesses it contracts with to provide web services. For example, Amazon.com could decide it doesn’t want to provide hosting services for any websites that include violent, sexually explicit, profane, or abusive material.
But under the Seattle law, Amazon’s standards would have to be applied impartially to all websites regardless of their political ideology. In other words, Amazon could cancel its contract with Parler for hosting “content… that encourages and incites violence against others,” but only if Amazon applied this standard in the same way to everyone without regard to political ideology. Amazon could not discriminate by adopting one standard for politically conservative customers and another for politically progressive customers.
In one of its court filings, Parler suggests that Amazon may have done just that. Parler alleges that the Amazon Web Services representative assigned to it “repeatedly asked” whether President Donald Trump “had joined or would join Parler now that he was blocked by Twitter and Facebook.” In a separate court declaration, former Parler CEO John Matze claimed that this Amazon representative was “a Joe Biden supporter” and that “it was only after Twitter announced its intention to terminate Trump from its platform that AWS expressed any concern about Parler’s compliance with its agreement.”
If Amazon’s actions against Parler were due in part to Parler’s political orientation, then those actions could constitute unlawful discrimination under Seattle law. It doesn’t matter if Amazon had a non-political reason for its policies if it applied its policies more strictly against Parler because of its political orientation.
There is more. In December 2020, it was announced that Twitter would begin using Amazon Web Services. Twitter has been accused of not adequately policing violent content on its own platform, especially violent content from the political left. If Amazon Web Services treats Twitter more leniently than Parler, it could provide evidence that its actions against Parler were discriminatory.
Amazon’s potential liability goes far beyond its web hosting services.
Amazon also runs a self-publishing platform that enables authors and groups to publish their own paperback or Kindle books for sale on Amazon. Last year, Amazon’s self-publishing platform initially rejected a Kindle booklet by former New York Times reporter Alex Berenson that criticized government policies related to COVID-19. After an outcry, Amazon reversed its decision, claiming it had been a mistake.
If Amazon hadn’t reversed itself, the company might well have faced liability under Seattle’s fair contracting law. Recall that the Seattle law defines “political ideology” as “any idea or belief… relating to the purpose, conduct, organization, function or basis of government and related institutions and activities, whether or not characteristic of any political party or group.” (emphasis added) Beliefs about public health policies relating to COVID-19 would certainly seem to qualify for protection under the Seattle law.
Given how many things Amazon sells, its potential liability under the fair contracting law could be considerable. It’s not hard to come up with other cases where the law might apply. According to published reports, Amazon banned the sale of a pro-Trump coffee brand on its platform, initially rejected a film by noted black conservative Shelby Steele (the film was later allowed), censored a film critical of “fake news” by conservative Mike Cernovich, and canceled a conservative publisher’s ad campaign for a book about transgenderism and public policy. While Amazon might be able to justify some of these decisions on non-political grounds, they at least raise the question of whether Amazon is discriminating based on political ideology.
However, Amazon isn’t the only big company that could be targeted under the Seattle law.
Other tech giants, notably Facebook and Apple, have physical offices and employees in Seattle. In fact, Apple has plans to expand its workforce to 2,000 employees in Seattle, and Facebook is currently advertising more than 450 open positions in Seattle. Any company with a physical presence and employees in Seattle is potentially subject to the provisions of Seattle’s anti-discrimination law, although suing a company whose main base of operations is in another state would pose some extra hurdles.
In recent years, the United States Supreme Court has made it more difficult for state courts to exercise what is known as “general personal jurisdiction” over companies that are headquartered elsewhere. Even so, there are ways to get around those restrictions by demonstrating what is known as “specific personal jurisdiction.”
Basically, the greater the presence an outside company has in Seattle, and the more connected the alleged discrimination is to Seattle, the more likely a case can be brought where the Seattle anti-discrimination law will apply. According to the attorney retained by Mind Matters News:
The following combined factors would make it likely that Washington State courts would have specific personal jurisdiction over a Seattle anti-discrimination claim involving an out-of-state big tech company: (1) the physical presence of offices, network resources, and employees in Washington; (2) a contract for online services such as advertisements that are in some way targeted to the Seattle area; and (3) the big tech company’s intentional act in cancelling that specific contract giving rise to the discrimination complaint.
Consider the case of Facebook. Although headquartered in Menlo Park, California, Facebook has more than 3,000 employees in the Seattle area, multiple office buildings in Seattle itself, and more than 1.1 million user accounts within a 10-mile radius of Seattle, not to mention more than 5.1 million user accounts in all of Washington State. Facebook sells advertisers access to its Seattle and Washington users.
Let’s say a politically conservative group tries to reach a Seattle audience by purchasing advertising through Facebook, but is turned down. It might well have a cause of action against Facebook if the tech company continues to sell ads to politically progressive groups. Google, which also has a Seattle presence, and which also sells ads that reach a Seattle audience, would face the same situation. The attorney retained by Mind Matters News explains:
A contract between a person in Seattle (or person merely in Washington State) and Facebook or Google for online ads targeted to Seattle that is subsequently canceled on account of political ideology would seem to fit all three key facts just identified. The jurisdictional claim would be even stronger if personnel in the Seattle office were directly involved in the discriminatory action. But this isn’t strictly necessary. Rather, the discriminatory action by the out-of-state big tech company must be related to their contacts with Washington—or related to the type of business they are conducting in Washington. Nor is it strictly necessary for the plaintiff to be from Seattle or in Washington, since the jurisdictional inquiry is concerned with the state where the defendant’s action is directed. But having a Seattle or a Washington resident would appear to be helpful since that would make the transaction more specific to Washington and thereby constitute one of the defendant out-of-state big tech companies’ minimum contacts with Washington.
Apple is another big tech firm that could be subject to the Seattle law. Although headquartered in Cupertino, California, Apple not only has a growing Seattle workforce (and a new Seattle office complex boasting more than 600,000 square feet of space), its Seattle offices apparently include employees working for the Apple Media Products Commerce Engineering team, which “manages purchases from all iOS products, including Apps, Music, and Subscriptions.”
This means that Apple’s operations in Seattle have a direct tie to the operation of its App Store, which has long been accused of banning apps based on political ideology. In 2010, Apple banned an app that advocated the “sanctity of human life, the dignity of marriage as a union of husband and wife, and the freedom of conscience and religion.” In 2017, it banned a pro-life app, and it has banned the apps for conservative social media platforms Gab and Parler.
Any app developer located in Seattle whose app is rejected by Apple due to political ideology may well have grounds to sue Apple under the Seattle law.
Financial service companies could also face liability under Seattle’s fair contracting practices ordinance. For example, if a financial services company operating in Seattle denies a group online credit card processing services based on the group’s political ideology, the financial services company could be opening itself up to a lawsuit. If actually headquartered in Seattle, the company could likely be sued by any of its customers regardless of their location. If the company only operates within Seattle but isn’t headquartered there, the company could still be subject to lawsuits from Seattle or Washington State residents.
Out-of-state tech companies may try to preempt lawsuits based on Seattle civil rights laws by requiring all their vendors and customers to agree to litigate any disputes in the tech companies’ home states.
But the attorney consulted by Mind Matters News says that this gambit would likely fail.
The attorney notes that the Seattle law’s “discrimination claims are authorized by the Washington Law Against Discrimination (WLAD), and WLAD claims cannot be waived by contract. According to case law, it would defeat the public policy of the State of Washington to treat a WLAD claim as waived by the choice of law clause of a contract. It would seem to follow that anti-discrimination claims that are authorized by WLAD would similarly be backed by the public policy of Washington and be non-waivable.”
It remains to be seen whether anyone will actually use Seattle’s fair contracting ordinance to take on big tech censorship.
But if they do, Seattle could soon become ground zero in the battle against big tech.