December 7, 2021

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Former President Trump Suing Over Social Media Bans – But Will It Actually Go Anywhere?

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An all too common argument among anyone who has had a post removed on Facebook or had an item pulled from eBay is that the tech giants were violating the individual’s “First Amendment” rights or “censoring” their right to free speech. Neither is accurate, and yet, this week former President Donald Trump has actually taken it a step further by filing a lawsuit against Facebook Inc., Twitter Inc., Alphabet Inc.’s Google and the companies’ respective executives.

On Wednesday, Trump filed three separate class-action lawsuits in federal court in Florida against the tech giants and Facebook’s Mark Zuckerberg, Twitter’s Jack Dorsey and Google’ Sundar Pichai, Bloomberg reported. The lawsuits seek court orders to restore his social media accounts, while the former president is also seeking punitive damages.

“We’re going to hold big tech very accountable,” former President Trump said during his Wednesday press conference at his Trump National Golf Club in Bedminster New Jersey. “If they can do it to me, they can do it to anyone.”

Twitter had permanently banned Trump while Google-owned YouTube froze his account on January 6, following the deadly Capitol Hill riot. Facebook had suspended the former president from its network for at least two years.

All of the tech giants have declined to comment. However, NetChoice, whose members include Amazon, did release a statement on the matter.

“President Trump has no case,” NetChoice CEO Steve DelBianco said in a statement. “The First Amendment protects Americans and our media from government control. Mr. Trump’s mistaken view of the First Amendment would empower the government to direct, mandate, and ban political speech on the internet.”

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Yet, Trump is making news – and getting headlines for his actions.

“Our former president isn’t the only person who is suing three large internet companies to use their respective services,” said technology industry analyst Roger Entner of Recon Analytics.

“It is unlikely that he will succeed as Republicans have significantly strengthened the rights of companies to do business with who they want to as well as strengthened the companies’ rights not to distribute speech that they disagree with,” added Entner.

The Legal View

It is unlikely that Trump will actually accomplish much, except perhaps the publicity it will generate.

“Two things are simultaneously true: this lawsuit is a shameless publicity (and fundraising) stunt, and it is a waste of time on the merits of the suit,” explained Chicago attorney Ari Cohn, who specializes in First Amendment issues.

“Both of Trump’s claims are frivolous nonsense,” suggested Cohn. “The bar for when a private party can be deemed a government actor for First Amendment purposes is set very high. While I think it is inadvisable for platforms to be consulting with government officials about content moderation as a general matter, nothing in the complaint rises to the level where Facebook’s actions could reasonably be attributed to the government. Ironically, the complaint includes the story of a plaintiff who was suspended after sharing an NIH link on Facebook—not exactly what you’d expect if Facebook was taking its marching orders from the federal government.”

Additionally, the attempt to overturn Section 230 could be best seen as equally bad.

“Trump wants to claim that Section 230 is unconstitutional because it gives platforms the power to moderate content where Congress would be prohibited from itself censoring the speech,” added Cohn. “But putting aside the fact that Facebook would have a First Amendment right to moderate content anyway, Section 230 is a wholly permissive law that does not dictate what types of content websites should moderate or how they should do so. The courts have been clear that a law enabling private actors to do something at their discretion, without any coercion by the government, doesn’t create a constitutional violation. On its face, Section 230 simply gives websites the discretion whether to moderate or not, and what rules to set if they do.”

Trump’s case could certainly be seen as one that lacks merit, and shouldn’t be seen in any way as a defense of the First Amendment as it applies to social media.

The kicker is Trump’s request that the court order Facebook to not place warnings or labels on content—a request wholly inconsistent with the First Amendment principles the lawsuit farcically claims to be vindicating,” noted Cohn. “This lawsuit is simply intended to stir up the ‘anti-big tech’ sentiments of his followers by way of a frivolous lawsuit that has no place being filed. Make no mistake: this lawsuit doesn’t defend the First Amendment. This lawsuit attacks it.”

A Vertical Wall

If the goal was to get publicity, mission accomplished. But if it was in fact to actually change the status quo for Trump’s social media status, the former president may a serious fight ahead.

“The rules are there to protect the citizens from censorship by the government,” said Robert Sanders, chair of National Security at the Henry C. Lee College of Criminal Justice and Forensic Sciences at the University of New Haven.

“Private entities have a separate and distinct standard,” Sanders added. “There is the issue that some see these quasi-public forums and say the same standards should hold true, but that is not the law. Perhaps Trump thinks he could have Congress change the laws, but he is really climbing a steep vertical wall if he believes that will happen. Current law doesn’t give Trump the option to claim what he wants to claim in the courts. Will this go anywhere? I doubt it!”

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