Trump Can’t Beat Facebook, Twitter and YouTube in Court – but the Fight Might Be Worth More Than a Win

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Yves here. I must confess to not having read the Trump class action lawsuit against various major tech platforms. And one reason I haven’t is that the press accounts depicts the arguments as muddled. That is likely not to be media bias. The suits seeking to overturn key 2020 races were very poorly framed and substantiated.

To me, the key issue is whether the legal case is adequate for the filing to survive a motion for summary judgement. I believe Trump’s core argument is that the tech media masters, at least with respect to political communication, are acting as agents of the government.  If that’s more or less the contention, that’s a factual matter and would allow Trump’s team to root around and  find out who said what to various officials when.

If so, it appears, as readers have suggested, that Trump could still win by losing if he obtain e-mails or other correspondence in discovery that had a strong odor of partisan bias. Of course, the defendants will strive to circumscribe any discovery. Slipshod Team Trump lawyering could come to their aid.

By Frank LoMonte, Director of the Brechner Center for Freedom of Information, University of Florida. Originally published at The Conversation

From condo salesman to reality TV host to leader of the free world, Donald Trump has occupied several lifetimes’ worth of identities over a remarkable career of reinventions. Even so, the billionaire mogul’s latest metamorphosis – into a consumer-rights plaintiff seeking to regulate big business – is a peculiar one.

With a volley of lawsuits against the operators of Facebook, Twitter and YouTube, former President Trump is asking the courts to do what tycoon Trump once would have denounced: tell some of America’s most powerful corporations that they have no choice who they do business with.

As a First Amendment and media law scholar, I believe the former president knows he can’t win in court. Here’s why – and why even his most ardent supporters don’t really want him to.

When Twitter banned Trump, it made headlines. Screenshot, Voice of America website

Content Moderation Rules

After the Jan. 6 attack on the U.S. Capitol by rioters bent on preventing Congress from certifying President Biden’s electoral win, all of the major social platforms – Facebook, Twitter and YouTube – pulled the plug on Trump’s accounts. The companies cited internal rules about misuse of their platforms to spread misinformation and incite violence.

Trump’s lawsuit barrage seeks not just to overturn his own bans but to invalidate a 1996 federal statute, Section 230 of the Communications Decency Act, that entitles website operators to choose who and what appears on their pages without fear of liability. His attorneys are arguing – creatively, but I believe without much legal foundation – that the Communications Decency Act is unconstitutional in that Congress has given platforms too much speech-policing power.

Section 230 has been called the law that “created the internet,” as it enables anyone who operates or uses a website – not, as Trump claims, only social media behemoths – to disavow responsibility for what outsiders come onto the site and say.

The law does enable YouTube to deactivate videos, or entire accounts, without assuming “ownership” of anything libelous that remains viewable. But it also allows the proprietor of a small-town news site to entertain reader comments without being considered the “publisher” of – and thus liable for – every scurrilous statement that ends up in the comments section.

Social networks have enforced their “content moderation” rules spottily and without much transparency. That’s a bad business practice, and it’s arguably unfair. But the Constitution doesn’t offer a remedy for all of life’s adversities. It certainly doesn’t offer one for Donald Trump here.

Social Media Isn’t Government

Court after court has rejected the argument that because social networks are widely considered – in the Supreme Court’s words– “the modern public square,” speakers are entitled to demand access to their platforms just as they are entitled to use a physical public square. That’s not how the First Amendment works.

The protections of the First Amendment are triggered when a public agency exercises governmental power to restrict people’s speech – what is known as “state action.” On rare occasions, private organizations can be considered “governmental” – for instance, when a private hospital or university is given police power to make arrests on its premises.

But operating a video-sharing platform is not a “governmental” function – and judges have said so, unanimously.

Conservatives, including Trump, cannot possibly want private businesses to be governed by the same constitutional standards that apply to cities and counties. If courts started applying the Bill of Rights to Walmart or McDonald’s just because they are large and powerful entities that control a lot of property, those establishments would be forced to welcome even the most disagreeable speakers – let’s say, a diner wearing a “F*** Trump” T-shirt – no matter how many offended customers complain.

Upending Conservative Gospel

For decades, conservatives have fought – quite hard and quite successfully in court – to establish that corporations have First Amendment rights equivalent to those of living, breathing people. That includes the corporations operating social media channels.

In a recent essay about democracy in the social media age, I explain how the Communications Decency Act has evolved into the near-impenetrable liability shield that it is today.

In the essay, I describe how the proprietor of a hotel or tavern isn’t liable for harm caused by customers visiting the establishment – unless the customer has a known history of dangerousness that the proprietor chooses to ignore. That might offer a split-the-difference path for addressing the worst trolling behavior on social media by repeat bad actors – but, to be clear, it’s not the law today.

Today, the law unmistakably entitles the Twitters of the world to do just about anything with their customers’ posts: take them down, leave them up, add warnings or modifiers. If users are aggrieved by the way they’re treated, they can do exactly what they’d do in the offline world: Take their business somewhere else.

Old News

The Supreme Court already decisively dealt with this issue a half-century ago, when newspapers and television stations held power over political discourse comparable to that of Facebook and Twitter today. In the case, Miami Herald Publishing Co. v. Tornillo, the justices rejected a state legislative candidate’s insistence that he was entitled to space in the local newspaper to respond to criticism in two editorial columns.

While the justices acknowledged that a big-city newspaper might have a near-monopoly over information about local elections – sound familiar? – they agreed that the First Amendment would not tolerate commandeering the presses of a private publisher in the interest of government-enforced “fairness.”

A federal judge in Florida, relying on the Tornillo case, just ordered the state not to enforce a newly enacted “anti-deplatforming” law enabling any Florida political candidate whose social media posts are hidden, modified or deactivated to sue the platform. The judge concluded that the law violates the First Amendment rights of the platforms by (for example) compelling platforms to let candidates post anything they want, without moderation. “Balancing the exchange of ideas among private speakers,” the judge wrote, “is not a legitimate governmental interest.”

No one involved with this case could be serious about winning in federal court. But that is not the “court” to which the former president is playing.

Tilting at Silicon Valley appeals directly to Trump’s populist followers, many of whom probably suspect that their own clever tweets failed to go viral only because the system is rigged against them.

But even if, as experts suggest, Trump’s case is destined to fail, dismissal would be yet another headline and fundraising hook, along the lines of, “You knew those socialist judges were in Hillary’s pocket.” And even if Trump were ordered to pay Twitter CEO Jack Dorsey and Facebook CEO Mark Zuckerberg’s attorney fees, they’d have to queue up behind decades’ worth of unpaid Trump creditors.

As Trump would tweet, if given the chance: “So much winning!”

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  1. Michael Fiorillo

    Yet another example of the right energetically seeking to fill a void created by the liberal/left’s abandonment of its traditional missions.

    Given that it’s Trump initiating this, there’s plenty of farce, but this kind of thing can also play out tragically.

  2. Generalfeldmarschall von Hindenburg

    Trump could even his karma by scoring against the Tecchnopriests.(h/t Alejandro Jodorowski. ‘Technopriests’ should get more use

    “Social Media Isn’t Government” – actually much of it was seeded and then guided by intelligence agencies.

  3. fresno dan

    Upending Conservative Gospel
    The republican establishment, and the republican electorate, are two different entities. The fact of the matter is that republican office holders, just like with the dems, consistently do not represent the true feelings of their voters. So Trump upending “conservative” thought, values, and aspirations, really does nothing to thwart or diminish Trump support. Trump inconsistency is a feature, not a bug.

    1. Questa Nota

      Res publica, giving the electorate of all parties some voice.

      Added benefit of the lawsuit falls under any stick to beat a tech/media dog. Apologies to canines everywhere, as you deserve better humans.

  4. Starry Gordon

    I thought there was a claim that the government had pressured or influenced the tech platforms to behave in various ways inimical to Trump, There is also the question of whether they can be exempt from content-related lawsuits as common carriers when they actually perform an editing function. These appear to me to be reasonably substantive issues even if they’re being mishandled.

    1. Richard Needleman

      The emails between Fauci and Zuckerberg during the lab leak coverup may provide direct evidence linking Facebook’s censorship policies (i.e. lab leak,IVM, vaccine side effects, etc) and a government agency. They were completely redacted under a provision that allows this for communications between two government agencies. Since Zuckerberg is not to the best of my knowledge a government agency, an appeal of this decision my allow us to see if the NIH and Zuckerberg were directly collaborating in this censorship. Perhaps a lawyer can tell us if this constitutes evidence of the suppression of free speech by the government.

      In the same vein, there is a project (I forget its name) involving the NYT,BBC, Facebook, Twitter and the other usual suspects to suppress “misinformation”. They claim that they are guided by the WHO, NIH, etc. guidelines but I wonder if government agencies are participating more directly. I have been reading an excellent biography of the CIA and Allen Dulles(The Devil’s Chessboard, by David Talbot) and am seeing conspiracies everywhere.

      1. Ghost in the Machine

        I also read this book and second the recommendation. I would be curious what you think about the section on JFK.

  5. Carolinian

    And yet there literally was something called the Fairness Doctrine imposed on broadcast TV because broadcasting is a public/private partnership where the business people receive a government exclusive license to a certain portion of the public’s air waves.

    This does not describe Youtube or Facebook who rely more on mental “barriers to entry”–the public is not very adventurous about alternatives in the intimidating cyber world–rather than physical so Trump may indeed lose or even be dismissed.

    However laws may change and these SV companies are quite aware of that which is why for most of their history they avoided wading into political judgments. I believe that by now doing so they are making a mistake and anti trust or perhaps the repeal of that legal shield loom. The reason Trump still has power is that the Dem opposition is greatly overplaying its hand. And arguably these tech companies have become allies of the Dems if not the government itself.

    1. timbers

      “This does not describe Youtube or Facebook who rely more on mental “barriers to entry”–the public is not very adventurous…”

      I would take a small issue with that, as I’ve read FakeBook, Amazon, and others have been given exemption from antitrust law and allowed to illegally gobble up any of their competitors.

  6. dspanny1126

    I wonder how Fox News exec (not talking heads) see this. After all, if Zuckerburg can be forced to host Trump, I wonder how many progressive would love to force themselves on Fox News with their own shows.

    But in truth, the reality is the politician already have a platform from which to speak, their elected office. The President LITERALLY has a tax funded microphone; speak and the whole world listens.

    If there is one group that should NOT get elevated 1st amend privileges are elected govt officials. In my reading, that’s the exact opposite of the spirit of 1st amendment.

    1. Carolinian

      Fox News is not a monopoly. Facebook? The real issue of course is the market dominance of these companies, however they acquired it.

      And be assured they are just as willing to censor people on the left who don’t toe the establishment party line. Trump first, NC next?

  7. TimH

    When DT was campainging, donations could be used by him for any purpose. If it’s the same now, one purpose is just a flagpole to pull in more donations from the sweaty masses.

  8. IfThen

    I think that it might even give Team Trump too much credit to think they’re looking to make headlines down the road based on discovery, etc. I think Trump already got everything out of the “lawsuit” that he wanted: one day’s worth of headlines about Trump suing Big Tech which can now be parlayed in to fundraising efforts for months. Knowing how incredibly cheap Trump is can anyone really see him paying for thousands of hours of lawyer’s fees for something like this?

    1. Carolinian

      I read widely across the web and it’s not just Trump talking about this. So here’s suggesting he’s not merely grandstanding but instead tapping into a growing disgust with tech nerds acting like emperors. Facebook and Twitter could continue to monitor Trump’s material and block it according to some less controversial standard if appropriate. A blanket ban says “we regard you as persona non grata” much like felons being forbidden the vote. It’s not about whether they can do it. It’s about whether they are smart enough not to do it.

  9. Mikerw0

    As a long time New Yorker, the Trump playbook is simple and easy to understand. Grandstand, get on the front page of something, make money off it. And, once he entered politics use grandstanding to deflect attention.

    This lawsuit checks all the boxes. The media, and now even NC, discusses this, grandstanding, check. The media was discussing his other legal problems and challenges — deflection, check. He had something to commercialize — the fundraising emails went out as he walked to the podium, check.

    I think I read somewhere that a term of service with Facebook is that California is the only jurisdiction you can sue them in. He filed in Florida.

    My big hope is that he gets his stated wish and is deposed in this lawsuit, would make for really boring TV. Fishing expeditions go two ways.

  10. Watt4Bob

    Not many seem to care much about the fact that the same MOTU that are aligned against Trump are aligned against we the people.

    They stopped us from electing Bernie and they have so far, stopped us from getting M4A, Student Debt relief and all manner of other material benefits that ‘our government‘ might provide if it wasn’t busy serving other masters.

    How can we applaud the Tech Giants stopping Trump when all the while they are stopping us too?

    This whole mess is at least a diversion, and at worst a clear example of what is holding the rest of us back.

    Looks to me as if Trump is a useful tool to keep the rest of us off center, probably at least until the mid-terms.

  11. tk texas

    Sorry Yves, Trump won’t get discovery. Supreme Court in Ashcroft v Iqbal required courts to screen cases for “plausibilty” of claim for relief. Your idea that Facebook might be an agent of the government has no support. FB and Twitter are not state actors! He filed in the wrong court! Case is a fundraising con job.

    1. Yves Smith Post author

      It is not “my idea”. The press coverage and Trump’s own words suggest that it is the thrust of the case. And I flagged clearly that even if that were a viable argument, one should not underestimate the ability of Team Trump’s lawyers to make a hash of it.

  12. TimmyB

    Trump’s lawsuits are meritless as presently constructed because Trump has only private entities such as Facebook and Twitter as defendants when the First Amendment only applies to government actions, specifically those government actions that limit speech.

    The only way to construct a meritorious First Amendment lawsuit is to have a government entity as a defendant. As a result,Trump needs to amend his various suits and allege that powerful government officials, not social media companies, violated Trump’s rights under the First Amendment. I believe there have been enough public statements by Democratic Party government officials pressuring Twitter and Facebook to ban Trump’s speech on social media that Trump can truthfully make such allegations.

    If Trump amends his complaint to allege that high ranking Democrats threatening Facebook and Twitter with a variety of punishments if they didn’t ban Trump, his case would have a much better chance of surviving a motion to dismiss. And then getting discovery. However, as is, his complaints most likely will be dismissed before he gets to the discovery phase.

  13. John Beech

    Nice to see you back in action. How the hips doing?

    A fellow sufferer,

    1. Yves Smith Post author

      So sorry you are having orthopedic woes!

      HSS declared me to be in the top 1% of hip replacement recoveries.

      However, the way the surgeon set my leg lengths is forcing me to correct my gait, big time, not just the bad compensation patterns due to my injury but long standing habits. This is a ton of work.

      1. John Beech

        Pal had one done following a fall which, strangely, killed the ball-and-socket joint (and per him, a nothing fall at that, but I digress). Referred to as injury-caused-necrosis. I’d never heard of such a thing, but whatever. Anyway, his leg length was mis-set and now he has to have the soles of his shoe built up by 7/8″ – forever! While I know next to nothing about this, I cannot fathom how there can be an inch of difference, but there you have it. Gate issues? Oh heck yeah he’s dealing with them and our being pals means I know about this with an insider’s perspective. Anyway, here’s hoping your issues aren’t as severe.

  14. Grayce

    Interesting that land, then financial capital used to define “The Establishment.” Now, the ability to dominate social platforms, private platforms at that, has given rise to a public opinion “Neo-establishment” in which some majority heavyweights do not lead. That must frustrate. The courts are threading a needle. On the one hand, protecting private enterprise from over regulation. On the other hand, continuously tweaking the list of protected groups. How unusual to see the old Establishment fighting in court for its “fair share” of privately held space.

  15. Keith McClary

    When the CEOs are dragged in front of legislative committees and told in vague terms to clean up their act, is that “state action”?

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