Trump Asks Court To Reinstate His Twitter Account ASAP

Legal Issues

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.

Filed Under: 1st amendment, content moderation, donald trump, injunction
Companies: twitter, youtube