Trump’s Suit Against Big Tech Widely Dismissed

Trump and the America First Policy Institute filed complaint seeking class-action status with U.S. District Court in Miami. It seeks an immediate injunction against the companies’ “illegal, shameful censorship” of “the American people,” Trump told reporters at his Bedminster, New Jersey, golf course. He urged an end to “shadow-banning and silencing,” saying numerous lawsuits will follow.

Twitter and Facebook banned Trump for his actions leading up to the Jan. 6 riot at the Capitol. He described the lawsuit as a “very important and beautiful” development for “freedom and our freedom of speech.” The former politician called Facebook CEO Mark Zuckerberg, Twitter CEO Jack Dorsey and Google CEO Sundar Pichai “three real nice guys.” The lawsuit accuses the defendants of increasingly engaging in “impermissible censorship resulting from threatened legislative action, a misguided reliance” on Section 230 and “willful participation in joint activity with federal actors.” Facebook and Twitter declined comment. Google didn’t comment.

By exercising their rights under Communications Decency Act Section 230, the platforms ceased being private companies, Trump said. The federal government is coordinating to deputize social media platforms to become government's censorship arm, he said. He accused Democrats of threatening to “intimidate” Big Tech’s CEOs at congressional hearings. Congress isn’t allowed to “coerce” private entities into bending to their will, which is a flagrant constitutional violation, he argued.

The complaint is “dead on arrival,” said Clay Calvert, who directs the University of Florida Brechner First Amendment Project. “There is no First Amendment violation. The reason is simple: Facebook and Mark Zuckerberg are not government actors and therefore the First Amendment does not restrict their actions.” The argument Facebook is acting with Congress or agencies like the Centers for Disease Control and Prevention is “just bizarre,” he said.

The legal complaint makes a “whacky” argument that Facebook has somehow become a government entity due to size, said Competitive Enterprise Institute Center for Technology and Innovation Director Jessica Melugin. The 9th U.S. Circuit Court of Appeals established that a social media company can’t become a public entity due to size, she added. Melugin noted Trump signed the platform’s terms of service when he joined, and the companies have a First Amendment right to remove him if he violates those terms.

“Section 230 and the First Amendment protect the platforms, and no amount of twisted legal analysis about public fora or unsubstantiated claims of coordination with federal employees or members of Congress will get Trump out of that,” emailed Access Now U.S. Policy Manager Eric Null. “The lawsuit lacks evidence of the claims it puts forth and reads more like a list of grievances by a former president.”

There needs to be “much more direct control over the behavior of the services to rise to any state action, and it is not clear that the platforms are even the appropriate party to sue,” emailed Jeffrey Westling, R Street Institute resident fellow-technology and innovation. A private entity can qualify as a state actor if it exercises a traditionally exclusive public function, is compelled to act by a governmental entity, or acts jointly with a governmental entity, he said.

Industry groups panned the suit. “Digital services have a right to enforce their terms of service,” said Computer & Communications Industry Association President Matt Schruers. “Frivolous class action litigation will not change the fact that users -- even U.S. Presidents -- have to abide by the rules they agreed to.” The First Amendment “protects Americans and our media from government control,” said NetChoice CEO Steve DelBianco. “Mr. Trump’s mistaken view of the First Amendment would empower the government to direct, mandate, and ban political speech on the internet.”