Trump Asks Court To Reinstate His Twitter Account ASAP

from the not-how-it's-gonna-work dept

There were a bunch of headlines this weekend claiming that Donald Trump had just “sued” Twitter to get his account reinstated. This is untrue. There were also some articles suggesting that he was using Florida’s new social media law as the basis of this lawsuit. This is also false (what the hell is wrong with reporters these days?).

Trump actually sued back in July and it was widely covered then. And the basis of that lawsuit was not Florida’s law, but rather a bizarrely twisted interpretation of the 1st Amendment.

What happened on Friday was that in that ongoing case, Trump filed for a preliminary injunction that would (if granted) force Twitter to reinstate Trump’s account. This is not at all likely to be granted. The motion for the injunction is laughably bad. It’s even worse than the initial complaint (which was hilariously bad). It does make reference to Florida’s law — which has already been held to be unconstitutional — but it’s certainly not using that as a key part of its argument.

As for this motion, it’s just a lawyerly Hail Mary attempt by lawyers who are in way too deep, hoping that maybe they’ll get lucky with a judge who doesn’t care about how the 1st Amendment actually works. It’s a mishmash of confused and debunked legal theories about the 1st Amendment and Section 230, but the crux of it is that it violated then President Donald Trump’s rights when Twitter shut down his account, because Twitter was acting as the government. Yes. The argument is so stupid as to need repeating. The underlying argument is that government actor, Twitter illegally censored private citizen President Donald Trump, taking away his 1st Amendment rights through prior restraint.

As a government actor, Defendant’s prior restraint of Plaintiff is a violation of the First
Amendment, and Plaintiff is therefore entitled to injunctive relief under the federal courts’
longstanding power to “grant equitable relief for constitutional violations.”

The parts about Section 230 are just as stupid:

Section 230 is not a valid defense to this action and is unconstitutional as applied to the
facts of this case. Section 230 only protects Defendant for (1) causes of action in which third-party
speech is an element and (2) its content moderation for specific reasons outlined in Section
230(c)(2). Here, Plaintiff’s constitutional claims against Defendant involve neither third-party
speech nor the sorts of content specified in Section 230. Further, binding precedent has determined
Section 230 offers platforms no protection from suits brought under the Florida Deceptive and
Unfair Trade Practices Act (“FDUTPA”).

That’s… not how any of this works. Of course this is about 3rd party speech: Trump’s. And Section 230 absolutely covers the kind of content specified by Section 230 (i.e., “information provided by another information content provider.”)

The 230 argument just gets worse and worse the more Trump’s very, very confused lawyers try to explain it. They really don’t want the judge to recognize that basically every court has made it clear that (c)(1) (which has no “good faith” requirement) covers nearly all moderation decisions. And then they (falsely) claim that even (c)(2) doesn’t protect Twitter. The truth is both sections protect Twitter. The tap dancing to exclude (c)(2) is truly impressive.

As Florida federal courts have ruled, consistent with most courts, Section 230(c)(2) is not
a carte blanche to remove content for any reason. Rather, these terms refer to specific types of
content regulable in 1996, and “otherwise objectionable” is a catch-all term that, under the ejusdem
generis canon of statutory construction, refers to types of content Congress thought regulable in
1996. See Nat’l Numismatic Certification, LLC. v. eBay, Inc., No. 6:08-CV-42-ORL-19GJK, 2008
WL 2704404, at *25 (M.D. Fla. July 8, 2008) (“One may find an array of items objectionable; for
instance, a sports fan may find the auction of a rival team’s jersey objectionable. However,
Congress provided guidance on the term ‘objectionable’ by providing a list of seven examples and
a statement of the policy behind Section 230”). Accordingly, the Court concludes that
“objectionable” content must, at a minimum, involve or be similar to pornography, graphic
violence, obscenity, or harassment. Song fi Inc. v. Google, Inc., 108 F. Supp. 3d 876, 883 (N.D.
Cal. 2015). The six (6) adjectives preceding the phrase “otherwise objectionable” clearly
demonstrate the policy behind the enactment of Section 230 (c)(2) and provide guidance as to what
Congress intended to be ‘objectionable’ content. Section 230(c)(2) is not a bar to Plaintiff’s
lawsuit, which alleges that Defendant removed content in violation of the First Amendment and
other laws.

Uh, no. The reference to Song Fi is particularly stupid. The case is not a good one (see Eric Goldman’s writeup when it came out), but it does not stand for the argument that Twitter can’t kill the President’s account when he appeared to be encouraging insurrectionists to prevent the peaceful transfer of power away from his presidency. That’s pretty obviously “otherwise objectionable.” In Song Fi, the court said that 230(c)(2) didn’t apply (wrongly, in my opinion) because YouTube removed a video because it thought the video uploader was inflating viewer counts, and the court said that because that reason wasn’t about the content of the video, 230 didn’t apply. But, and here’s the important bit, YouTube still won the case because its terms said that it could remove content for any reason. So even if the court bought this ridiculous argument regarding Section 230, it still doesn’t help Trump.

As for the arguments regarding Florida’s social media law, it’s almost too ridiculous to mention, but it’s there, so mention it we must. Trump’s lawyers claim that the fact that the law was deemed pre-empted by Section 230 doesn’t matter any more because one case cited by the judge was vacated and replaced later. This is the Domen case that we wrote about earlier this year. Except, Judge Hinkle didn’t “rely” on that to find 230 pre-empted the law, so the vacating of the original ruling in that case doesn’t change a damn thing, and… the revised Domen opinion STILL NOTES THAT 230 PRE-EMPTS STATE LAW (see footnote 4). I mean, what the fuck do Trump’s lawyers think they’re doing here?

Anyway, this motion has almost no chance, absent the judge making a really wacky decision which wouldn’t stand up on appeal. Meanwhile, Twitter is still trying to get the case transferred to Northern California, though Trump is literally claiming that jurisdiction clauses can’t apply to him because he was President. In a case where he’s accusing Twitter of being the government. Really.

At all times relevant to this action, Plaintiff was the sitting President of the United States,
and used his account and Defendant’s services in that capacity as a public forum. Knight First
Amdt. Inst. at Columbia Univ., 928 F.3d at 226. Plaintiff was clearly a “federal … government
entity in the United States using the Services” in his “official capacity.” Further, he was “legally
unable to accept the controlling law, jurisdiction, or venue clauses” contained in Twitter’s TOS
without input from other agencies, including the National Archives and Records Administration,
in accordance with the requirements of the Federal Acquisition Regulation

Trump (incredibly) cites the Knight v. Trump case to prove that he used his personal Twitter account for official White House business (something he denied in the Knight case…).

Trump is also fighting jurisdictional changes in his cases against the other social media companies and this week the court in the Google/YouTube case rejected Trump’s arguments against moving the case and sent it to California, laughing off the “but he was President!” argument:

To begin, the Court need not reach the issue of whether the United States or its officials
can be bound by a forum-selection clause because, in this case, there is no federal agency or entity
that is a party to this case. Plaintiffs assert that “[a]t all times relevant to this action, Plaintiff
[Trump] was the sitting President of the United States, and used his social media accounts
and YouTube’s services in that capacity as a public forum.” Resp. at 4. Yet, that is plainly not
the case because Plaintiff Trump agreed to the TOS in his individual capacity, has brought this suit
in his individual capacity, and is seeking the restoration of his YouTube account in his individual
capacity. See generally Am. Compl. Indeed, as recognized in the Amended Complaint, Plaintiff
Trump is bringing this case not as the President of the United States, but as “a private citizen and
is domiciled in Palm Beach, Florida.” … Plaintiff Trump’s status in this case as a private
citizen is further confirmed by the fact that he is pursuing claims under FDUTPA—which provides
no cause of action for the federal government or its officials. … Thus, because
Plaintiff Trump is not a party to this case in an official government capacity, the Court finds these
arguments to be without merit.

Relatedly, the Court finds Plaintiffs’ arguments premised on the Second Circuit’s opinion
in Knight to be unrelated to the enforceability of the forum-selection clause in this case. In Knight,
the Second Circuit held that Plaintiff Trump’s Twitter account was a “public forum” such that
Plaintiff Trump violated the First Amendment by blocking users from interacting with his account.
928 F.3d at 237–38. But this holding has no impact on the enforceability of the forum-selection
clause in this case, where Plaintiff Trump is a party in his individual capacity.

That doesn’t bode well for the similar arguments in the other cases. But, again, none of the arguments Trump is making in these lawsuits makes much sense.

Anyway, this whole thing is ridiculous and hopefully the judge recognizes it as such and tosses it quickly.

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Companies: twitter, youtube

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Comments on “Trump Asks Court To Reinstate His Twitter Account ASAP”

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55 Comments
Davidsays:

Hey, it can be fixed.

Yes. The argument is so stupid as to need repeating. The underlying argument is that government actor, Twitter illegally censored private citizen President Donald Trump, taking away his 1st Amendment rights through prior restraint.

Well, just declare that Trump was not legally president of the U.S. in 2021 because he conspired with the Russians to get fraudulently elected in 2016. Then he was indeed really a private citizen.

I am sure that the other half can be fixed as easily. Like, if Trump was not president, then Hillary was, and as a communist leader she certainly would have federalized Twitter and thus turned it into government actor.

Now we just need to pretend that this alternative reality, certainly plausible enough for patriots to call for the January 6th insurrection, is legally valid. Since a lot of election lawsuits were done on the "but I think someone could have done this if they tried" basis, I see no reason why we cannot have that, too.

I mean, let Fox and Breitbart and OAN just do their kind of standard job, and there we are.

That One Guysays:

'No fair, consequences are for other people!'

Ah the schadenfreude watching a sociopathic narcissist face the dreaded Personal Consequences and finding out that he can’t just offload those to someone else every time.

Garbage legal arguments by at best garbage lawyers, I pity the judges who have to deal with his legal filings but at least the utter lack of substance should make throwing them out of court a relatively quick and easy process.

freelunchsays:

"what the hell is wrong with reporters these days?"

Reporters, like civilians generally, struggle to make sense of what courts do. My daughter, who took tons of journalism classes, became extremely educated in some aspects of the First Amendment, e.g. about lawsuits against journalists, but didn’t much learn about how courts work.

Could there be a simple tutorial for journalism students? Many reporters took those courses and wrote for the college paper. Journalists’ biggest problem is assuming that every court ruling must be substantive, when most are procedural. The confusion in the Trump seems like one that a tutorial for journalists could really help with and that would also help with the biggest problem. It could teach them what are the basic steps of a matter, filing, pretrial motions, injunctions vs final resolution, discovery, dismissal vs settlement trial, etc. enough so that they would be equipped to start by asking what the event of news they are starting to write about might be.

I’d also say they could read these wonderful discussions to learn more, but I suspect most journalism students come with fixed opinions about what the courts should do, being young.

Anonymoussays:

Further, he was “legally unable to accept the controlling law, jurisdiction, or venue clauses” contained in Twitter’s TOS without input from other agencies, including the National Archives and Records Administration, in accordance with the requirements of the Federal Acquisition Regulation

If Trump was legally unable to accept the TOS, then he never should have had a Twitter account to begin with. He was therefore an unauthorized user and Twitter was completely in their rights to ban him.

That One Guysays:

Depends on the goal

Yes and no I’d say.

If the goal is a legal win then yeah, he really sucks at it because his arguments have no merits on which to defend them such that he’s left banking on a corrupt or really confused judge in order to secure a win.

If on the other hand it’s just performative garbage to play up to his cultists then simply going through the motions and whining about how ‘even the courts have it in for me they’ve been taken over so much by the libs!’ will do the trick nicely, after which he can use it to fundraise or stroke his and his followers egos/persecution complex, something which has worked just fine in the past and shows no sign of no longer working in the future.

Davidsays:

You don't understand how this works

It is well-known that history is written by the winners. If you don’t manage to stop him from writing the history (and it doesn’t seem like people are overly successful in that endeavor), he is the winner and will go into history as the only candidate winning three successive presidential elections while term limits and elections were still a thing.

Davidsays:

Re: You know you're in trouble when...

You know you’re in trouble when…

the only lawyers who will do what you want are the ones that can’t put together a motion without a good dose of hard drugs.

I hate to burst your bubble, but this looks a lot more like the work of excessive weed rather than cocaine. "Legalize it" is not a slogan referring to the expected quality of resulting legal filings.

Scary Devil Monasterysays:

Re: You know you're in trouble when...

"But then Trump is continuing this even after Giuliani and Powell descended into madness, so he probably doesn’t know he’s in trouble yet."

Honestly, ten years ago I’d have said Trump knows exactly what he’s doing – putting on a show for the rubes he’s fleecing.

Today though? He’s hundreds of millions of dollars in the hole, most of it with russia as the main creditor. He could just be desperate and hell-bent on grasping every straw in sight – while longing for that sweet, sweet feeling of having an armed motorcade propel him around everywhere he feels inclined to go and someone toting the nuclear football around right behind him.

Rico R.says:

Re:

To Trump, lawyers are just magical wizards that can intimidate his enemies by waving legal threats like a magic wand, and regardless of whether or not the law is on his side, he can force them to comply with whatever his heart demands. I wouldn’t even be surprised if Trump’s lawyers knew all of this was bound to fail, got yelled at by Trump to do their jobs, and put together this motion that they knew was legally frivolous!

sumgaisays:

Re: Re: Speaking of losing...

Ya know…..

It’s only a matter of time before each of his donors (his "base") has to make a decision – "Do I want an asshole elected to the presidency again, or do I want to eat today?".

Given that upper limit, all we have to do is contribute the same amount per capita to the proper parties (running against #45 and his down-ticket stooges), and any tears spilled after the election will be from those who chose to eat a meal a day.

So why do people vote for his ilk? Simple. Keep that name in front of said people at all times. The best known method? Giant billboards along popular commuting routes. Trust me, this is the magic ticket, even more so than talking heads on the boob-tube.

Oh, and those corporations who donate to him because they think that capitalism can work without democracy? They’re a drop in the bucket, considering that there are slightly more than 73 million $20-a-pop donors. You can be sure that the two groups get different "begging for more money" letters.

WarioBarkersays:

Re: Re: Re: Speaking of losing...

It’s only a matter of time before each of his donors (his "base") has to make a decision – "Do I want an asshole elected to the presidency again, or do I want to eat today?"

And I hope that happens before the 2022 midterms, let alone the 2024 election.

Still, Dump’s base firmly believes that Democrats are the assholes, so in your hypothetical they’d vote accordingly. And even if they did realize Dump’s an asshole in time for 2024, they might think starving’s a reasonable price to pay in order to "own da libs" and still vote for him.

Scary Devil Monasterysays:

Re: Re: Re: Speaking of losing...

"It’s only a matter of time before each of his donors (his "base") has to make a decision – "Do I want an asshole elected to the presidency again, or do I want to eat today?"."

And then he’ll tell them the reason they and their kids are starving is because of the damn liberals. Because growing up it turns out the US which exists isn’t the country their parents told them it was. And they’re fucking furious about that. Then along comes Trump and Qanon and tells them the US looks like a dumpster fire is because the liberal cannibal cult helmed by the Bad Black Man is to blame for it all.

And they eat that shit up like candy because it’s much less unpleasant than the idea the US they grew up hearing about never having existed in the first place.

The irony being, of course, that most of the reason they can’t make ends meet with a single job, can’t make it as their own boss, can’t send their kids to college, and can’t afford health or dental is because their parents believed that Reagan fellow enough to let him bringing the hammer down on every social service they now need so desperately.

From one perspective the pro-trumpers are worthy of pity. They’re the ultimate victims, having been sold down the river by the people they chose to vest with trust.

On the other hand it’s like trying to take pity on a junkie who, albeit living in sheer misery, refuses to take any steps which would make them give up the crack pipe. It’s not worth it. That generation, all 70+ million of them, are a lost cause.

Bloofsays:

Re:

But he’s a rich, white conservative, his life experience has taught him that means that the rules don’t apply, they only exist to be weaponised against the poor.

He’s never been in a situation where he can’t just take what he wants, regardless of the law, then tell the wronged party to sue as he knows the legal fees would be crippling. He was never in a position of power with Twitter, the platform existed before and after him, and that, coupled with the loss of his audience, will enrage him until the day he dies.

Bloofsays:

Re: Re: Re:

Yes, but my point is that he was never in a position where twitter needed him to survive, they used him as a source of free content and when he became too much of an issue for them to ignore, the dumped him with no real ill effects. To a narcissist like Trump, that is unbearable, he’s never been in a position he can’t bully or buy himself out of repercussions.

That One Guysays:

Re: Re: Re: Re: Speaking of losing...

On the other hand it’s like trying to take pity on a junkie who, albeit living in sheer misery, refuses to take any steps which would make them give up the crack pipe. It’s not worth it. That generation, all 70+ million of them, are a lost cause.

It’s not so much a refusal to try to fix anything that condemns them so much as the solution they do seem to gravitate towards always seems to be ‘I’ll make my life seem better by making someone else’s life worse’. I can have sympathy for someone who’s been victimized and/or is having a rough time of it but when their response to that is to try to make someone else’s life miserable in turn that sympathy dries up real quick.

Scary Devil Monasterysays:

Re: "what the hell is wrong with reporters these days?"

"The confusion in the Trump seems like one that a tutorial for journalists could really help with and that would also help with the biggest problem."

The Trump cases wouldn’t be much help to a journalist except in a sensationalist sense, I’m afraid;

Powell had to defend herself from slander with the novel declaration that she didn’t imagine any reasonable person would believe a single word she said (also known as the Tucker Carlson defense).

Rudy Giuliani went in front of a court trying to get them to declare the election fraudulent based on unsubstantiated hearsay, his own opinion, and a post-it note found in a polling place with words to the effect of "The election is being stolen!".

Trump himself has a miles-long history of suing over any pretext, even if there is no case to be had.

It’s not a problem for your daughter to learn court procedure – but she might do well to avoid anything associated with Trump or SLAPP’s if what she’s after is how it’s supposed to work.

For that I’d suggest browsing the uscourts.gov homepage, because the united states courts system does have clear guidelines and procedures written down online.

Scary Devil Monasterysays:

Re: Re: Re: You know you're in trouble when...

I doubt he managed to hoodwink them for enough to pay off his creditors – particularly so since the biggest one of them is Putin.

Also, like the AC said, above…Old 45 isn’t in the habit of paying as long as he can make someone else bear the consequences of defaulting. I’m guessing he’s finding out that his current debts aren’t so easy to handle as to just point a finger at the sole sucker left holding the sunk project and run, or pull a bankruptcy and offer to pay off the debts with five cents on the dollar the way he used to.

Trump will remain owned by Putin for as long as he can remain useful. Nevermind that he certainly has come through for Russia by handing them large parts of the middle east and keeping the US out of Ukraine.
Mind you, as long as Trump keeps lighting 70+ million willfully ignorant morons on fire and turns US democracy into a worse mockery than it already was, Russia is well served. I doubt Trump will be "reminded" about his debts much until he stops being actively useful.

Scary Devil Monasterysays:

Re: A Travesty

"Twitter should be banned worldwide unless and until it agrees to stop censoring anyone for any reason ever."

So unless Twitter conforms to your personal opinion on what renders acceptable speech they should be banned.

Why am I not surprised to see you delivering lines lifted straight from Goebbels, once again? You might as well give the rest of us the context you weren’t shy of raising in your previous comments, on how mainstream "news" was all owned by Antifa and the global jewish conspiracy, and that the reason you’re upset is because you and your peers aren’t considered acceptable by most platforms for waving your swastikas too openly.

Scary Devil Monasterysays:

Re: Re: Re: Re: Re: Speaking of losing...

"It’s not so much a refusal to try to fix anything that condemns them so much as the solution they do seem to gravitate towards always seems to be ‘I’ll make my life seem better by making someone else’s life worse’."

That, right there, yes. If your first, second and third response to life having given you a raw deal because the party you voted for screwed you is to punch someone else in the face then zero sympathy it is.

And these benighted morons have proven, time and time again, that all 70+ million of them are willing to accept living in personal misery and see their kids remain ignorant and starving as long as someone else has it worse.

Their drug of choice is to victimize someone lower than them on the totem pole. No wonder they keep screaming like stuck pigs whenever the evil liberals threaten to take away the racism, misogyny and bigotry they partake of to stave off any real thought about the future of themselves and their families.

Scary Devil Monasterysays:

Re: Re: (what the hell is wrong with reporters these days?).

Well, he’s not quite wrong though. Journalists are supposed to build a story around well sourced fact, same as a scientist. I’d argue a proper journalist with pulitzer price standards should be identical to a scientist in methodology.

Reporters, otoh, could often be replaced by opinionated parrots.

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