I hope his lawyers told him before he went ahead with this that if it proceeds to trial, the companies’ lawyers will want to depose him about what led to him being banned from their sites. Which means putting him under oath and making him testify about the events leading up to the insurrection on January 6.
The House’s January 6 committee would be interested in that. Biden’s DOJ might be too.
It won’t proceed to trial, though. This is a stunt aimed at restoring Trump to a position of leadership in the populist fight against Big Tech (which Ron DeSantis was muscling in on). It’s all but impossible to imagine a court, even the Supremes, remaking a gigantic portion of modern American media in a single sweeping decision by declaring America’s most influential social-media companies to be state actors. That’s the sort of policy upheaval that requires deliberation by the public’s representatives in Congress.
But there’s always suspense as to what Trump himself does and doesn’t actually believe about the viability of his legal challenges. By all accounts, he seemed convinced last fall that Texas’s go-nowhere election appeal to the Supreme Court and Sidney Powell’s “Kraken” lawsuits would undo Biden’s victory. It’s within the realm of possibility that his lawyers in this action persuaded him that he’s going to win. And since Trump views politics as a matter of loyalty and transaction, he may think that his appointees on the Supreme Court will come through for him this time, if only to atone for letting him down on the Texas case.
“We’re demanding an end to the shadowbanning, a stop to the silencing, and a stop to the blacklisting, banishing and canceling that you know so well,” Trump said.
The suits allege that the companies violated Trump’s First Amendment rights in suspending his accounts and argues that Facebook, in particular, no longer should be considered a private company but “a state actor” whose actions are constrained by First Amendment restrictions on government limitations on free speech. Traditionally, the First Amendment is thought to constrain only government actions, not those of private companies…
Trump will face an uphill battle in court, under Section 230. The lawsuit also is likely to face claims that any action against the platforms violates their First Amendment rights; just last week, a federal judge cited the Constitution in blocking a Florida social media law from taking effect. The law would have levied fines against the tech companies if they suspended politicians in the run-up to an election.
Here’s the Facebook complaint. Normally you can’t sue a private company on First Amendment grounds since the First Amendment applies to the government. Trump’s way around that is to claim that Facebook is a de facto agent of the state, coerced by the government in certain ways and collaborating with it in others. One example he cites of coercion are quotes from Nancy Pelosi and other Democrats threatening to modify Section 230 unless Big Tech platforms moderate inflammatory content, including posts by Trump, more aggressively. But that argument could be tricky since Trump and other elected Republicans have also called for rescinding Section 230 unless Big Tech does *less* moderating, another form of “coercion.” As for collaborating with the feds, here’s an example that’s not going to win any sympathy for this lawsuit outside of the people who would have cheered Trump on regardless:
“Facebook is removing too much anti-vax disinformation” is a talking point that’ll work well in heavily MAGA parts of the country and nowhere else, further evidence that the suit is more of a political stunt than a real lawsuit. As is this:
And there it is: Trump fundraising appeal off his lawsuit already out pic.twitter.com/4KUaokjezH
— Nick Corasaniti (@NYTnickc) July 7, 2021
It’s a win/win for Trump. Either the suit somehow prevails or, when it’s inevitably thrown out, he can claim that Democrat and RINO judges have conspired against him and the people once again. At least he’s “fighting.” So donate some money, won’t you?
In addition to claiming that Facebook is a state actor under the First Amendment, he argues that Section 230 is unconstitutional because it amounts to Congress deputizing social-media companies to censor content that the government couldn’t constitutionally censor itself. If Facebook is a state actor, though, then Section 230 wouldn’t matter; the company would be bound by First Amendment rules in censoring content. If Facebook isn’t a state actor then striking down Section 230 would be very bad news for Trump. In order to limit their liability from any defamation claims his posts or tweets might inspire, they’d ban him straightaway:
This is crazy.
— Matthew Feeney (@M_feeney) July 7, 2021
Today’s complaint reminded me that it wasn’t long ago that the Supremes opined on when and whether a private entity in the communications industry might operate as a state actor for purposes of the First Amendment. None other than Brett Kavanaugh, in his first year on the Court, wrote the majority opinion in Manhattan Community Access Corp. v. Halleck, a 2019 case about a private company operating public-access television for New York City. Was the company a state actor under those circumstances? It was not, said Kavanaugh, speaking for the Court’s conservative majority:
The Hudgens decision reflects a commonsense principle: Providing some kind of forum for speech is not an activity that only governmental entities have traditionally performed. Therefore, a private entity who provides a forum for speech is not transformed by that fact alone into a state actor. After all, private property owners and private lessees often open their property for speech. Grocery stores put up community bulletin boards. Comedy clubs host open mic nights. As Judge Jacobs persuasively explained, it “is not at all a near-exclusive function of the state to provide the forums for public expression, politics, information, or entertainment.” 882 F. 3d at 311 (opinion concurring in part and dissenting in part).
In short, merely hosting speech by others is not a traditional, exclusive public function and does not alone transform private entities into state actors subject to First Amendment constraints.
If the rule were otherwise, all private property owners and private lessees who open their property for speech would be subject to First Amendment constraints and would lose the ability to exercise what they deem to be appropriate editorial discretion within that open forum. Private property owners and private lessees would face the unappetizing choice of allowing all comers or closing the platform altogether. “The Constitution by no means requires such an attenuated doctrine of dedication of private property to public use.” Hudgens , 424 U.S. at 519, 96 S.Ct. 1029 (internal quotation marks omitted). Benjamin Franklin did not have to operate his newspaper as “a stagecoach, with seats for everyone.” F. Mott, American Journalism 55 (3d ed. 1962). That principle still holds true. As the Court said in Hudgens , to hold that private property owners providing a forum for speech are constrained by the First Amendment would be “to create a court-made law wholly disregarding the constitutional basis on which private ownership of property rests in this country.” 424 U.S. at 517, 96 S.Ct. 1029 (internal quotation marks omitted). The Constitution does not disable private property owners and private lessees from exercising editorial discretion over speech and speakers on their property.
You can see from that logic why Trump’s lawyers are straining to argue coercion and collaboration with the state to boost their argument. The Court looks skeptically at attempts to convert private entities into state actors. And it’s hard to imagine them making a sharp break from the logic above with respect to an industry worth many hundreds of billions of dollars. If social media is to be overhauled, Congress is the proper venue.
Here’s Trump discussing the lawsuit this morning.
Former President Trump announces class action lawsuit against big tech giants, including Facebook, Google and Twitter: "We're demanding an end to the shadow-banning, a stop to the silencing and a stop to the blacklisting, banishing and cancelling that you know so well." pic.twitter.com/BXPKcACOj2
— CSPAN (@cspan) July 7, 2021