It Can Always Get Dumber: Trump Sues Facebook, Twitter & YouTube, Claiming His Own Government Violated The Constitution

Legal Issues

from the wanna-try-that-again? dept

Yes, it can always get dumber. The news broke last night that Donald Trump was planning to sue the CEOs of Facebook and Twitter for his “deplatforming.” This morning we found out that they were going to be class action lawsuits on behalf of Trump and other users who were removed, and now that they’re announced we find out that he’s actually suing Facebook & Mark Zuckerberg, Twitter & Jack Dorsey, and YouTube & Sundar Pichai. I expected the lawsuits to be performative nonsense, but these are… well… these are more performative and more nonsensical than even I expected.

These lawsuits are so dumb, and so bad, that there seems to be a decent likelihood Trump himself will be on the hook for the companies’ legal bills before this is all over.

The underlying claims in all three lawsuits are the same. Count one is that these companies removing Trump and others from their platforms violates the 1st Amendment. I mean, I know we’ve heard crackpots push this theory (without any success), but this is the former President of the United States arguing that private companies violated HIS 1st Amendment rights by conspiring with the government HE LED AT THE TIME to deplatform him. I cannot stress how absolutely laughably stupid this is. The 1st Amendment, as anyone who has taken a civics class should know, restricts the government from suppressing speech. It does not prevent private companies from doing so.

The arguments here are so convoluted. To avoid the fact that he ran the government at the time, he tries to blame the Biden transition team in the Facebook and Twitter lawsuits (in the YouTube one he tries to blame the Biden White House).

Pursuant to Section 230, Defendants are encouraged and immunized by Congress to censor constitutionally protected speech on the Internet, including by and among its approximately three (3) billion Users that are citizens of the United States.

Using its authority under Section 230 together and in concert with other social media companies, the Defendants regulate the content of speech over a vast swath of the Internet.

Defendants are vulnerable to and react to coercive pressure from the federal government to regulate specific speech.

In censoring the specific speech at issue in this lawsuit and deplatforming Plaintiff, Defendants were acting in concert with federal officials, including officials at the CDC and the Biden transition team.

As such, Defendants? censorship activities amount to state action.

Defendants? censoring the Plaintiff?s Facebook account, as well as those Putative Class Members, violates the First Amendment to the United States Constitution because it eliminates the Plaintiffs and Class Member?s participation in a public forum and the right to communicate to others their content and point of view.

Defendants? censoring of the Plaintiff and Putative Class Members from their Facebook accounts violates the First Amendment because it imposes viewpoint and contentbased restrictions on the Plaintiffs? and Putative Class Members? access to information, views, and content otherwise available to the general public.

Defendants? censoring of the Plaintiff and Putative Class Members violates the First Amendment because it imposes a prior restraint on free speech and has a chilling effect on social media Users and non-Users alike.

Defendants? blocking of the Individual and Class Plaintiffs from their Facebook accounts violates the First Amendment because it imposes a viewpoint and content-based restriction on the Plaintiff and Putative Class Members? ability to petition the government for redress of grievances.

Defendants? censorship of the Plaintiff and Putative Class Members from their Facebook accounts violates the First Amendment because it imposes a viewpoint and contentbased restriction on their ability to speak and the public?s right to hear and respond.

Defendants? blocking the Plaintiff and Putative Class Members from their Facebook accounts violates their First Amendment rights to free speech.

Defendants? censoring of Plaintiff by banning Plaintiff from his Facebook account while exercising his free speech as President of the United States was an egregious violation of the First Amendment.

So, let’s just get this out of the way. I have expressed significant concerns about lawmakers and other government officials that have tried to pressure social media companies to remove content. I think they should not be doing so, and if they do so with implied threats to retaliate for the editorial choices of these companies that is potentially a violation of the 1st Amendment. But that’s because it’s done by a government official.

It does not mean the private companies magically become state actors. It does not mean that the private companies can’t kick you off for whatever reason they want. Even if there were some sort of 1st Amendment violation here, it would be on behalf of the government officials trying to intimidate the platforms into acting — and none of the examples in any of the lawsuits seem likely to reach even that level (and, again the lawsuits are against the wrong parties anyway).

The second claim, believe it or not, is perhaps even dumber than the first. It asks for declaratory judgment that Section 230 itself is unconstitutional.

In censoring (flagging, shadow banning, etc.) Plaintiff and the Class, Defendants relied upon and acted pursuant to Section 230 of the Communications Decency Act.

Defendants would not have deplatformed Plaintiff or similarly situated Putative Class Members but for the immunity purportedly offered by Section 230.

Let’s just cut in here to point out that this point is just absolutely, 100% wrong and completely destroys this entire claim. Section 230 does provide immunity from lawsuits, but that does not mean without it no one would ever do any moderation at all. Most companies would still do content moderation — as that is still protected under the 1st Amendment itself. To claim that without 230 Trump would still be on these platforms is laughable. If anything the opposite is the case. Without 230 liability protections, if others sued the websites for Trump’s threats, attacks, potentially defamatory statements and so on, it would have likely meant that these companies would have pulled the trigger faster on removing Trump. Because anything he (and others) said would represent a potential legal liability for the platforms.

Back to the LOLsuit.

Section 230(c)(2) purports to immunize social media companies from liability for action taken by them to block, restrict, or refuse to carry ?objectionable? speech even if that speech is ?constitutionally protected.? 47 U.S.C. ? 230(c)(2).

In addition, Section 230(c)(1) also has been interpreted as furnishing an additional immunity to social media companies for action taken by them to block, restrict, or refuse to carry constitutionally protected speech.

Section 230(c)(1) and 230(c)(2) were deliberately enacted by Congress to induce, encourage, and promote social medial companies to accomplish an objective?the censorship of supposedly ?objectionable? but constitutionally protected speech on the Internet?that Congress could not constitutionally accomplish itself.

Congress cannot lawfully induce, encourage or promote private persons to accomplish what it is constitutionally forbidden to accomplish.? Norwood v. Harrison, 413 US 455, 465 (1973).

Section 230(c)(2) is therefore unconstitutional on its face, and Section 230(c)(1) is likewise unconstitutional insofar as it has interpreted to immunize social media companies for action they take to censor constitutionally protected speech.

This is an argument that has been advanced in a few circles, and it’s absolute garbage. Indeed, the state of Florida tried this basic argument in its attempt to defend its social media moderation law and that failed miserably just last week.

And those are the only two claims in the various lawsuits. That these private companies making an editorial decision to ban Donald Trump (in response to worries about him encouraging violence) violates the 1st Amendment (it does not) and that Section 230 is unconstitutional because it somehow involves Congress encouraging companies to remove Constitutionally protected speech. This is also wrong, because all of the cases related to this argument involve laws that actually pressure companies to act in this way. Section 230 has no such pressure involved (indeed, many of the complaints from some in government is that 230 is a “free pass” for companies to do nothing at all if they so choose).

There is a ton of other garbage — mostly performative throat-clearing — in the lawsuits, but none of that really matters beyond the two laughably dumb claims. I did want to call out a few really, really stupid points though. In the Twitter lawsuit, Trump’s lawyers misleadingly cite the Knight 1st Amendment Institute’s suit against Trump for blocking users on Twitter:

In Biden v. Knight 141 S. Ct. 1220 (2021), the Supreme Court discussed the Second Circuit?s decision in Knight First Amendment Inst. at Columbia Univ. v. Trump, No. 18- 1691, holding that Plaintiff?s threads on Twitter from his personal account were, in fact, official presidential statements made in a ?public forum.?

Likewise, President Trump would discuss government activity on Twitter in his official capacity as President of the United States with any User who chose to follow him, except for seven (7) Plaintiffs in the Knight case, supra., and with the public at large.

So, uh, “the Supreme Court” did not discuss it. Only Justice Clarence Thomas did, and it was a weird, meandering, unbriefed set of musings that were unrelated to the case at hand. It’s a stretch to argue that “the Supreme Court” did that. Second, part of President Trump’s argument in the Knight case was that his Twitter account was not being used in his “official capacity,” but was rather his personal account that just sometimes tweeted official information. Literally. This was President Trump appealing to the Supreme Court in that case:

The government?s response is that the President is not acting in his official capacity when he blocks users….

To then turn around in another case and claim that it was official action is just galaxy brain nonsense.

Another crazy point: in all three lawsuits, Donald Trump argues that government officials threatening the removal of Section 230 in response to social media companies’ content moderation policies itself proves that the decisions by those companies make them state actors. Here’s the version from the YouTube complaint (just insert the other two companies where it says YouTube to see what it is in the others):

Below are just some examples of Democrat legislators threatening new regulations, antitrust breakup, and removal of Section 230 immunity for Defendants and other social media platforms if YouTube did not censor views and content with which these Members of Congress disagreed, including the views and content of Plaintiff and the Putative Class Members

But, uh, Donald Trump spent much of the last year in office doing exactly the same thing. He literally demanded the removal of Section 230. He signed an executive order to try to remove Section 230 immunity from companies, then demaned Congress repeal all of Section 230 before he would fund the military. On the antitrust breakup front, Trump demanded that Bill Barr file antitrust claims against Google prior to the election as part of his campaign against “big tech.”

It’s just absolutely hilarious that he’s now claiming that members of Congress doing the very same thing he did, but to a lesser degree, and with less power magically turns these platforms into state actors.

There was a lot of speculation as to what lawyers Trump would have found to file such a lawsuit, and (surprisingly) it’s not any of the usual suspects. There is the one local lawyer in Florida (required to file such a suit there), two lawyers with AOL email addresses, and then a whole bunch of lawyers from Ivey, Barnum, & O’Mara, a (I kid you not) “personal injury and real estate” law firm in Connecticut. If these lawyers have any capacity for shame, they should be embarrassed to file something this bad. But considering that the bio for the lead lawyer on the case hypes up his many, many media appearances, and even has a gallery of photos of him appearing on TV shows, you get the feeling that perhaps these lawyers know it’s all performative and will get them more media coverage. That coverage should be mocking them for filing an obviously vexatious and frivolous lawsuit.

The lawsuit is filed in Florida, which has an anti-SLAPP law (not a great one, but not a horrible one either). It does seem possible that these companies might file anti-SLAPP claims in response to this lawsuit, meaning that Trump could potentially be on the hook for the legal fees of all three. Of course, if the whole thing is a performative attempt at playing the victim, it’s not clear that that would matter.

Filed Under: 1st amendment, class action, content moderation, donald trump, jack dorsey, mark zuckerberg, section 230, state actor, sundar pichai
Companies: facebook, twitter, youtube