Trump takes on big tech, media responds by claiming “companies can do whatever they want, more or less”

The former President files a class action lawsuit against Twitter, Facebook, and Google claiming that the infamous Section 230 of the Communications Decency Act is unconstitutional and abridges Freedom of Speech.  Perhaps needless to say, the media completely misses the point and suddenly seems to think companies aren’t constrained by any laws or principles.

Earlier this week former President Donald Trump announced a class action lawsuit against Twitter, Facebook, Google, and their respective CEOs, Jack Dorsey, Mark Zuckerberg, and Sundar Pichai.  The lawsuit alleges all three companies are guilty of “impermissible censorship” that violates “the First Amendment right to free speech.”  The former President is the lead plaintiff, but thousands of others who’ve been arbitrarily de-platformed or seen their speech suppressed are likely to join the suit, making it the largest of its kind, ever.  The lawsuit seeks reinstatement of the former President’s social media accounts, financial damages, and the overturning of parts of the Communications Decency Act.  “We’re asking the U.S. District Court for the Southern District of Florida to order an immediate halt to social media companies’ illegal, shameful censorship of the American people,” Trump said at a press conference in Bedminster, NJ announcing the suit. “We’re going to hold big tech very accountable.”

In response, the mainstream media and legal experts were unimpressed.  The reaction ranged from claiming the suit was “meritless,” “doomed to fail,” and a “stunt.”  “This lawsuit is a stunt, and it’s unlikely to find traction in the courts,” explained Jameel Jaffer, executive director of the Knight First Amendment Institute at Columbia University.  “They’ve argued everything under the sun, including First Amendment, and they get nowhere,” claimed Eric Goldman, a law professor at Santa Clara University in California. “Maybe he’s got a trick up his sleeve that will give him a leg up on the dozens of lawsuits before him. I doubt it,” Mr. Goldman continued.  “Trump’s suit is DOA,” proclaimed Paul Barrett from the Center for Business and Human Rights at New York University’s Stern School of Business.

The reasoning behind their swift dismissal of the suit can be summed up in an editorial on CNN by Kara Alaima, associate professor of public relations at Hofstra University.  She put it rather succinctly by claiming that, “according to the First Amendment, the government cannot restrict free speech rights. Companies can do whatever they want, more or less.”  Of course, Ms. Alaima is unlikely to apply that standard to discrimination in the work place or pollution of the environment, but the general consensus is the First Amendment does not apply to private companies. Therefore, Trump has no chance.

Before we consider the legal merits of the case, however, we should consider what Trump is actually alleging.  The suit, like most legal documents, is lengthy.  For our purposes, we can focus on the allegations against Twitter.  Trump alleges that “Twitter has increasingly engaged in impermissible censorship resulting from threatened legislative action, a misguided reliance upon Section 230 of the Communications Decency Act, 47 U.S.C. § 230, and willful participation in joint activity with federal actors.”  Further, he believes the “Defendant Twitter’s status thus rises beyond that of a private company to that of a state actor, and as such, Defendant is constrained by the First Amendment right to free speech in the censorship decisions it makes.” Regarding the Communications Decency Act, the suit adds that it “has enabled Defendant Twitter to grow into a commercial giant that now censors (flags, shadow bans, etc.) and otherwise restricts with impunity the constitutionally protected free speech of the Plaintiff and Putative Class Members.”

Before we continue, we should consider Section 230 in more detail.  Section 230 is essentially a devil’s bargain made with social media companies long before they were the primary means of communication.  The goal of the 1996 act was to encourage online speech to flourish.  The section itself is short and sweet, “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”  The meaning is large:  A traditional publisher can be sued for the content they publish in print, online, radio, TV, whatever.  Therefore, the publishers themselves have the right to control the content they disseminate.  For example, no one can force me to publish a post on this site.

Social media companies, however, are exempt and cannot be sued for content provided by third party users like you and me.  I called it a “devil’s bargain” because, for almost two decades, this was taken to mean that the social media companies would not exercise editorial control over the content posted by users.  We were granted free speech on the platform and they were given protection from liability.  Trump is alleging that this bargain is unconstitutional, more on that in a moment.

In the meantime, the suit against Twitter further alleges that the “threat to its Users’ and potentially every citizen’s right to free speech cannot be overstated. Defendants’ callous disregard of its Users’ constitutional rights is no better exemplified than in the matter currently before the Court.”  “Twitter’s censorship runs rampant against the entire Class, and the result is a chilling effect on our Nation’s pressing political, medical, social, and cultural discussions.”  The company’s moderation standards are “non-existent, broad, vague, and ever-shifting” and “Using the unconstitutional authority delegated to them by Congress, Defendants have mounted an aggressive campaign of prior restraint against a multitude of Putative Class Members through censorship (flagging, shadow banning, etc.) resulting from legislative coercion and collusion with federal actors.”

As a result, “Plaintiff respectfully asks this Court to declare that Section 230 on its face is an unconstitutional delegation of authority and that the Defendants’ actions directed at Plaintiff and Putative Class Members are a prior restraint on their First Amendment right to free speech, to order the Defendants to restore the Twitter account of Plaintiff, as well as those deplatformed Putative Class Members, and to prohibit Defendants from exercising censorship, editorial control, or prior restraint in its many forms over the posts of President Trump and Putative Class Members.”

Contrary to what the media is claiming, this is a complex argument with potentially sweeping ramifications.  Trump isn’t simply alleging that social media companies violate Section 230 or that the First Amendment applies to private entities, but that the provision itself is an unconstitutional transfer of power to the social media companies because they retain their First Amendment rights, you lose yours, and they are legally shielded from liability.  Congress cannot abridge your rights, nor can it pass a law authorizing another body, either public or private, to abridge your rights, but that is exactly what has happened here.  In the social media sphere, you have no rights at all, not to speak and not to sue.  No other company or governmental body on the planet possesses that kind of two pronged power; indeed such power is prohibited by the Constitution, at least according to Trump.

Further, the prior restraint argument is an interesting one.  Prior restraint is when the government seeks to prohibit speech before it even happens, either by statute or regulation, judicial injunction, or restricting a certain type of speech.  For example, in the 1971 Supreme Court case New York Times v. US, the government tried to stop newspapers from publishing classified documents.  The Supreme Court held that it could not do so without proving the publication would cause inevitable, direct, and immediate danger to the United States.  Here, Trump is arguing that social media companies are exercising limitless prior restraint whenever they deplatform or suppress content.  They don’t know what the affected individuals are going to say specifically, nor do they know what the impact will be, but they are banning it anyway.  This argument is, of course, in conjunction with the assertion that Congress has unconstitutionally delegated authority to social media companies.

Lastly, the repeated reference to collusion with federal actors merits further consideration.  The suit is arguing that the social media companies are not acting alone, as in privately, in these decisions.  Instead, they are collaborating with third parties, politicians, activists, and the government itself.  This collaboration fundamentally changes the nature of their policies; if they are collaborating with the government to suppress speech for example, the First Amendment would apply.

In fact, Matt Taibbi covered this specific scenario recently on Substack.  Bret Weinstein and Heather Heying are two biologists that host a podcast called DarkHorse and have two channels on YouTube.  In the past month or so, they were flagged by YouTube for “medical misinformation.”  YouTube ultimately demonetized their channel and informed them to “Edit your channel and reapply for monetization… Make changes to your channel based on our feedback. Changes can include editing or deleting videos and updating video details.”

Mr. Taibbi contacted YouTube directly to ask how the medical misinformation policy was developed given the hosts were experts in the field and their guests are frequently respected experts as well.  He was informed, “In general, we rely on guidance from local and global health authorities (FDA, CDC, WHO, NHS, etc) in developing our COVID-19 misinformation policies.”  When asked if the guidance from these government bodies was active, as in collaboration with them rather than just by reviewing publicly available sources, YouTube suggested it was active.  “When we develop our policies we consult outside experts and YouTube creators. In the case of our COVID-19 misinformation policies, it would be guidance from local and global health authorities.”  This, of course, is an entirely different matter:  If the government is developing policies in conjunction with the social media companies, the First Amendment almost certainly applies.

Ultimately, I am not a lawyer, legal expert, or Constitutional scholar.  I freely admit I have no idea where this case will end.  At the same time, neither does anyone else.  Despite the disinterested dismissiveness from the mainstream media, Trump is making a novel argument regarding Section 230.  To my knowledge, Section 230 has never been tested in court, nor has the power it gives the social media companies.  If a friendly judge chooses to hear the case, who knows what might develop?

There are a few ancillary points to consider, independent of the legal merits of the case or what happens in court this time around.

First, much is being made in the media that the case is all about Trump.  It’s not.  Thousands of other people have been deplatformed or had their content suppressed, including even media companies themselves, for a whole host of ever changing, unclear, and inconsistently applied reasons.  Whether it is technically legal or not misses the point:  The social media companies have proclaimed themselves the arbiters of acceptable discourse and truth itself, whether or not we asked them to take on the job.  This is not sustainable:  Facebook and Twitter do not have the right to dictate content to media organizations like the New York Post, which is exactly what they did when they blocked the Hunter Biden laptop story last year under completely false pretenses.

Second, you don’t have to prevail in a lawsuit to affect meaningful change.  In many cases, the threat of a lawsuit itself is enough to alter a company’s behavior.  Lawsuits are expensive, time consuming, and potentially embarrassing.  I highly doubt any of these companies want their internal communications regarding the policies in question made public given they are likely to contain instances of bias if not outright hatred towards political figures and perhaps conservatives in general, and that’s exactly what would happen during discovery.  Also, unlike many of my fellow conservatives, I don’t believe the tech companies necessarily need to be broken up.  I just think they need to revert back to moderation policies in line with the First Amendment.  The threat of endless lawsuits might well achieve that goal.

Third, we should be wary of anyone making the argument that private companies “can do whatever they want, more or less.”  This is patently false:  We live in a country where you can be forced to bake a cake regardless of your Freedom of Religion.  The same people who believe companies must comply with every kind of regulation imaginable, suddenly seem to think the First Amendment isn’t important and doesn’t do anything outside a Federal building. Putting this another way, you can’t open a lemonade stand in many cities without permits, but now we are expected to believe social media companies, some of the richest and most powerful organizations in human history, are able to operate completely unfettered by anything, either law or principle?

It’s a preposterous position, especially when there is far more than the technical, legal definition of the First Amendment at stake.  As I have written before on this site, it’s a pretty impoverished right that applies so narrowly as to be meaningless in the modern modern world.  Freedom of Speech is more than legalese; it’s a fundamental principle of free expression, shared by everyone from the President of the United States to you and me.  It’s worth going to court for to protect, even as the establishment class seems to think otherwise these days. Even worse, they also claim democracy is under assault. Well, they have a funny way of showing it.

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