Rumble in the jungle: Court orders Google to turn over docs on choking free speech competition

Judge says factual record could show "all of the interrelated conduct" is relevant to Rumble's claim that Google "self-preferences" YouTube.

Updated: August 1, 2022 - 11:14pm

Google's argument for dismissing an antitrust lawsuit by YouTube competitor Rumble — a haven for unfettered discussions about COVID-19, election fraud and Ukraine-Russia relations — so perplexed a federal judge that he took only eight pages to reject Google's motion.

"Without real dispute," Rumble has adequately alleged that Google violated Section 2 of the Sherman Act, U.S. District Judge Haywood Gilliam wrote Friday, questioning Google's "somewhat counterintuitive premise that [Rumble] has pled too much."

It's the third censorship-related lawsuit against Big Tech pillars to win approval for legal discovery in recent months.

Last month, a federal judge ordered that social media companies Meta (Facebook), Twitter, and YouTube must turn over documents and answer questions in a suit alleging collusion between the companies and the Biden administration to censor "disfavored speakers, viewpoints, and content" on their platforms. 

Twitter let former New York Times journalist Alex Berenson back on the platform last month to settle his advancing breach-of-contract suit.

YouTube has particularly targeted videos that challenge COVID orthodoxy, removing public meetings where COVID policy is debated, science-based criticisms of COVID mitigations by Sen. Rand Paul (R-Ky.), and a parent's criticisms of school COVID policy. It also labeled an anti-Biden rap song as "medical misinformation."

Rumble can now obtain internal Google documents on "algorithmic manipulation of its search engine" and requirements that "all but force" companies reliant on its infrastructure to use YouTube, lawyer Glenn Greenwald, a progressive critic of censorship and prominent Rumble user, wrote in his newsletter Saturday.

Anti-censorship group Reclaim the Net pointed to two-year-old Wall Street Journal tests that found Google overwhelmingly gave YouTube the first spot in its coveted "carousel" of video search results, as well as the lion's share of the remaining slots, compared to competitors with similar videos.

The Rumble victory may also help President Trump's five-month-old Truth Social platform, which migrated to the Rumble cloud this spring. 

Trump Media and Technology Group Director of Communications Mattheus Wagner declined to comment on how Gilliam's order may affect its business or provide Truth Social metrics, citing its pending merger, except to note that Trump estimated its user base was around 5 million a month ago.

Truth Social quickly shot to the top of Apple's free apps, followed by Twitter, when it left an extended beta period in April. The expansion coincided with billionaire Elon Musk's pledged $44 million Twitter purchase, whose later collapse was followed by a raft of suspensions and lockouts against medical experts and critics of gender ideology

Google argued the lawsuit must be "broken into distinct theories" of liability based on Rumble's allegations — "self-preferencing" YouTube in search results, "tying" its video service to other Google apps, and "unlawfully dominating the search market with agreements involving distribution" of Google search — and the latter two then dismissed.

But the search behemoth could only find two nonprecedential trial court opinions to support this argument, the Obama nominee said, and it doesn't dispute the viability of the self-preferencing claim: obtaining and maintaining an online video monopoly and algorithmically directing users to YouTube "with no valid business purpose or benefit" to them.

This "parsing" argument is also "at least arguably in tension" with 60-year-old Supreme Court precedent giving antitrust plaintiffs "the full benefit of their proof without compartmentalizing the various factual components and wiping the slate clean after scrutiny of each," Gilliam wrote.

Google also sought the removal of allegations that it achieved and maintained an unlawful video monopoly by conditioning device makers' access to the Android mobile operating system and its other popular services on "preinstallation of the YouTube app" and sometimes requiring bans on rival preinstallations. These are known as "anti-forking" agreements.

Motions to strike "are often used as delaying tactics" and Google hasn't shown the allegations are "redundant, immaterial, impertinent, or scandalous," Gilliam said. The developing factual record could show that "all of the interrelated conduct" is relevant to Rumble's self-preferencing claim. 

It wasn't clear from oral argument last fall which way Gilliam was leaning. The Sept. 29 hearing transcript shows he was skeptical of Rumble's effort "to loop in things that are happening in the general search market," where it doesn't compete, under the long-disputed "monopoly leveraging doctrine."

In recent cases, "the courts have all but said" the doctrine is "not a standalone theory without some allegation of independent anti-competitive conduct in the leveraged market," the judge said, asking Google if its motion to dismiss relied on declaring the doctrine "inviable under any circumstances."

Google is arguing that Rumble hasn't even alleged "independent exclusionary conduct directed at that second leveraged market" that would fit the leveraging doctrine, Google lawyer John Schmidtlein responded.

Because Rumble is "not a participant in this search market," it also lacks "antitrust standing to complain about conduct that purportedly would give Google a monopoly in any sort of search market," Schmidtlein said.

Rumble lawyer Jack Stern countered that Google was mischaracterizing its argument. The contractual restrictions and bundling requirements for Android device makers give YouTube dominance in mobile search, "a very important means by which consumers engage in both general searches and specialized searches" such as for videos.

Gilliam objected to Rumble's implication that he couldn't scrutinize whether it met the pleading requirements for its tying allegations. Stern pointed the judge to its allegations about "the coercive, no-choice operation of the mobile application distribution agreements" between Google and Android device makers.

Rumble meets the "coercion threshold" because the device makers "don't have an economically viable choice" except to take YouTube as a condition of receiving "must-have" and "gotta-have" apps, Stern said.

Schmidtlein disputed that Rumble had shown that even "a single device manufacturer, mobile phone carrier, anybody who manufactures or sells a device that comes pre-installed with YouTube" had been coerced into taking it or "would have preferred not to do that," absent Google's licensing terms.

Not only do device makers pay nothing for the "bundle of apps" that includes YouTube, but the Google license doesn't stop anyone from preinstalling Rumble, he argued. "That is different than the typical tying case" where a party uses its monopoly for one product to require a partner to "pay an affirmative price" for another product.

Schmidtlein questioned why Rumble seems to think Android devices are the only game in town, when it could approach Apple or laptop makers for preinstallation deals.