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Ninth Circuit:
Laura Loomer’s RICO Action Against Facebook, Twitter Fails
Opinion Says Former Congressional Candidate Did Not Successfully Plead Conspiracy by Social Media Giants, Advertisers to Illegally Interfere With Elections by Unlawfully Censoring Conservative Voices
By Kimber Cooley, associate editor
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LAURA LOOMER former congressional candidate
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The Ninth U.S. Circuit Court of Appeals yesterday affirmed the dismissal of claims filed by former Florida congressional candidate Laura Loomer against Meta Platforms Inc. and Twitter Inc., alleging that the California-based social media companies are engaged in a “wide-ranging conspiracy...to unlawfully censor conservative voices and interfere with American elections.”
In a memorandum opinion signed by Circuit Judges John B. Owens and Daniel P. Collins and Senior Circuit Judge Sydney R. Thomas, the court said the federal Racketeer Influenced and Corrupt Organizations Act (“RICO”) claims fail because Loomer did not plausibly allege in her complaint the existence of a conspiracy or a criminal enterprise.
The lawsuit is the fourth filed by Loomer relating to an alleged scheme to silence right-wing points of view. All three previous actions, stating claims different from that alleged in the present suit, were also dismissed.
The present action by Loomer and Laura Loomer for Congress Inc. was filed in the U.S. District Court for the Northern District of California in 2022. Named as defendants were Meta Platforms Inc. (formerly known as Facebook) and its founder Mark Zuckerberg, Twitter Inc. (now known as X Corp.) and its former CEO Jack Dorsey, and the Procter & Gamble Company.
Meta is based in Menlo Park; Twitter’s principal place of business is in San Francisco; and Zuckerberg and Dorsey are residents of California.
In the operative complaint—a 118-page pleading prepared by Woodland Hills attorney John M. Pierce—Loomer alleges that she was unfairly banned from interacting on social media in 2018 based on her political views and was prevented from posting even after she announced her political candidacy in 2019 for the Republican nomination for the 21st Congressional District in Florida. She lost in the general election in November 2020, a failure she blames, in part, on her inability to interact with voters on the defendants’ platforms.
Offending Posts
The offending posts included an appearance with Gavin McInnes, the founder of the controversial Proud Boys group, and a tweet directed at U.S. Rep. Ilhan Omar, D.-Minn., which pointed out conflicts between Sharia law and supporters of LGBTQ causes.
Her opponent, now-U.S. Rep. Lois Frankel, D-West Palm Beach, was able to advertise on Facebook throughout the campaign, which Loomer alleges was an unfair advantage.
Loomer further alleges that Procter & Gamble pressured Facebook to designate a list of individuals as “dangerous” and ban them from the platform unless they disavowed the Proud Boys.
She also points to statements by Zuckerberg, during a 2022 appearance on “The Joe Rogan Experience” podcast, indicating that Facebook had received pressure by the FBI to quiet news about the Hunter Biden laptop scandal, as well as Twitter internal documents purportedly showing an effort by former President Joe Biden’s administration to silence critics of the COVID-19 vaccine, as further proof of the conspiracy.
Based on these contentions, she asserted civil claims based on an alleged substantive violation of RICO and a conspiracy to violate the statute, as well as other causes of action, saying in the complaint:
“These admissions are…indications of a wide-ranging, illegal and fraudulent conspiracy among big-tech, other elements within corporate America and individuals within the Executive Branch of the United States government to silence conservative voices and thus interfere with the fair administration of American elections….By any measure, this is an extremely troubling sign for the social and political cohesion of the American republic, as well as trust in the concept of free and fair elections in America.”
In September 2023, U.S. Magistrate Judge Laurel Beeler for the Northern District of California granted the defendants’ motion to dismiss the operative complaint under Federal Rule of Civil Procedure 12(b)(6), without leave to amend. She appealed the ensuing judgment, arguing that the dismissal of the RICO claims was improper.
Ninth Circuit’s View
Thomas, Owens, and Collins noted that a party seeking to file a claim based on a substantive RICO violation must show a criminal enterprise engaging in a pattern of racketeering activities. They said that a plaintiff seeking to prove the existence of such an enterprise must plead that the venture has a common purpose, a structure or organization, and the longevity needed to accomplish its goals.
Applying the standard, they concluded that “[t]he allegations in Loomer’s complaint are not sufficient to establish an ‘enterprise’ within the meaning of RICO.” The judges opined:
“In order to constitute an ‘enterprise,’ the plaintiff must allege ‘a continuing unit that functions with a common purpose.’….The operative complaint simply alleges that there was a RICO enterprise because the Defendants had the ‘common goals of making money, acquiring influence over other enterprises and entities, and other pecuniary and non-pecuniary interests.’ These allegations are not sufficient to plausibly allege Defendants constitute ‘a continuing unit that functions with a common purpose.’ ”
The panel also determined that the plaintiffs failed to plausibly allege an enterprise structure or longevity, commenting that the pleading only relies on conclusory statements as to those elements.
Conspiracy Not Stated
They added:
“The complaint also fails to state a RICO conspiracy claim. ‘Plaintiffs cannot claim that a conspiracy to violate RICO existed if they do not adequately plead a substantive violation of RICO.’ ”
Saying that “Loomer had already amended the complaint once, so the district court had broad discretion to deny the second amendment” proposed by the plaintiffs, the jurists declared that “[t]he district court correctly determined that the new allegations in the Second Amended Complaint would not affect the decision to dismiss the complaint.”
In a footnote, the judges said:
“The district court also concluded that Loomer’s claims against Meta and X Corp were barred by res judicata and Section 230 of the Communications Decency Act, 47 U.S.C. § 230(c)(1). Given our resolution of the claims against all Defendants, it is unnecessary for us to reach those issues.”
Thomas was appointed by Democratic President Bill Clinton; Owens was placed on the court by President Barack Obama, a Democrat; and Republican President Donald Trump selected Collins.
The case is Loomer v. Zuckerberg, 23-3158.
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