Love him or hate him, former President Donald Trump isn’t exactly known for his humility or lack of gusto. But the ex-president’s latest stunt may get him laughed out of court.
On Wednesday, Trump filed lawsuits against Facebook, Twitter, and Google. He argues that his removal from the two social media sites and the Google-owned platform YouTube is not just morally wrong, an eminently debatable proposition, but unconstitutional. Trump insists that the companies’ decision to remove him from their platforms violates the First Amendment of the Constitution, which mandates that the government may not infringe upon Americans’ freedom of speech. (The glaring problem, of course, is that privately owned social media companies are not the government.)
Here’s the former president’s argument, in his own words.
“One of the gravest threats to our democracy today is a powerful group of Big Tech corporations that have teamed up with government to censor the free speech of the American people,” Trump writes in a Wall Street Journal op-ed explaining his suit. “This is not only wrong — it is unconstitutional. To restore free speech for myself and for every American, I am suing Big Tech to stop it.”
“Our lawsuits argue that Big Tech companies are being used to impose illegal and unconstitutional government censorship,” the former president continues. “This coercion and coordination is unconstitutional. The Supreme Court has held that Congress can’t use private actors to achieve what the Constitution prohibits it from doing itself. In effect, Big Tech has been illegally deputized as the censorship arm of the U.S. government.”
Simply put, Trump and his lawyers argue that the Big Tech platforms have become essentially government actors because federal regulations such as Section 230 provide them with liability protections and because they sometimes coordinate with federal agencies such as the Centers for Disease Control and Prevention while determining their public health-related content moderation policies.
In the online response to the lawsuit, the vastly diverse legal community almost universally looked away in embarrassment. Not only does the suit against Facebook appear to have been filed in the wrong court, it also misstates the name of one of the laws it is arguing is unconstitutional.
Beyond its lack of seriousness and professionalism, the former president’s lawsuit is just based on an incorrect and, frankly, absurd premise: that private social media companies are the government. Remember, the First Amendment only applies to the government. Yet no party listed as a defendant in these lawsuits is actually a government official or agency.
Indeed, the private companies actually have a First Amendment right not to allow speech they disagree with on their platforms!
“Trump’s lawsuit is a loser through and through,” First Amendment attorney and NetChoice counsel Ari Cohn told me. “Plaintiffs have been trying for years to convince the courts to hold social media platforms to First Amendment standards, and they have all failed. That’s because the First Amendment only restricts the government, not private companies.”
“This is frivolous, meritless litigation attempting to constitutionalize the constitutionally protected decisions of private parties,” Cohn concluded. “It will fail, as it should.”
Other experts reached the same conclusion.
“The former president’s lawsuits are asking courts to force social media platforms to publish speech they have chosen not to publish … our laws don’t allow that,” David Greene, civil liberties director at the left-leaning Electronic Frontier Foundation, told me. “Courts around the country have recognized that social media platforms have First Amendment rights to curate their sites and decide for themselves what to publish.”
The near-consensus among lawyers seems to be that Trump’s crackpot lawsuit has no legal merits.
Of course, there can still very well be a serious moral and social problem with the way a few Big Tech platforms censor some voices and wield vast amounts of power over online discourse. As I’ve previously argued, Big Tech censorship is a real problem, albeit one that is sometimes overstated by conservative critics. And it is indeed alarming that these private platforms would go so far as to bar a former president from participating in huge swaths of the digital political conversation. Yet we can acknowledge these concerns without distorting the Constitution and embracing legal farce.
“We have long expressed grave concerns about the power Facebook, Twitter, and YouTube hold over global discourse and the human rights implications of their editorial decisions,” EFF’s Greene noted. “The platforms often silence the voices of marginalized people who struggle to be heard.”
“But these lawsuits will not solve that problem, and they will further prevent social media platforms from serving their users by filtering out abusive and harassing content,” Greene concluded.
That’s exactly the problem. With such a frivolous lawsuit clearly intended more as a publicity stunt than a serious legal challenge, Trump makes light of more sincere concerns over Big Tech censorship, making the whole cause seem as silly and absurd as Trump’s lawyers’ arguments. And that’s the real injustice here.
Author : Brad Polumbo
Source : Washington Examiner : Why Trump’s lawsuit against Big Tech will likely get laughed out of court