When Facebook and Twitter banned Trump from their platforms after the Capitol riot in January, he lost two of his most powerful megaphones. In June 2021, a statement released by Facebook said that the former president would not be allowed back on its service until at least January 2023, citing a risk to public safety and well-being as the reason. Twitter and Youtube soon followed suit.
Trump sues Twitter, Facebook, and YouTube
Trump announced that he would be filing lawsuits against Facebook, Twitter, and Google’s YouTube, along with the companies’ Mark Zuckerberg, Jack Dorsey, and Sundar Pichai, at a press conference in New Jersey, where he demanded that his accounts be reinstated.
“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 of the filings. “We’re going to hold big tech very accountable.”
Twitter, Facebook, and Google are all private companies, and users must agree to their terms of service to use their products. Under Section 230 of the 1996 Communications Decency Act, social media platforms are allowed to moderate their services by removing posts that, for instance, are obscene or violate the services’ standards, as long as it is a bonafide action. The law also generally exempts internet companies from liability for users’ material.
But Trump and some other politicians have long argued that Twitter, Facebook, and other social media platforms have abused that protection and should lose their immunity — or at least have it curtailed.
Conservative leaders and supporters have long since voiced woes regarding social media websites’ management being biased against them. This, however, is far from the truth. On the contrary, posts by conservative commentators like Ben Shapiro, Franklin Graham, Dan Bongino, and Dinesh D’Souza are routinely among the most widely shared on Facebook.
Legal win possible for Trump’s lawsuit
The Wall Street Journal believes that there’s a solid case to be made that social-media censorship violates the Constitution.
“The central claim in Mr. Trump’s lawsuit is that defendants should be treated as state actors and are bound by the first amendment when they engage in selective political censorship has precedent to back it up,” Mr. Vivek Ramaswamy writes.
Mr. Ramaswamy, who writes on behalf of the Wall Street Journal, has cited certain similar cases as examples to testify his claim regarding the possibility of Trump’s success:
- The Supreme Court held in Norwood v. Harrison 1973 that “the government may not induce, encourage or promote private persons to accomplish what it is constitutionally forbidden to accomplish.” According to Wall Street Journal, this is what Congress allegedly violated when they amended the 1996 Communications Decency Act to create its section 230.
- The High Court has repeatedly held that “federal immunity preempting state law can convert a private party’s conduct into a state action subject to constitutional scrutiny.”
- In railway employees v. Hansen 1956, the justices found state action in union employer agreements because Congress had passed a statute immunizing such agreements from liability under state law.
- In Skinner v. Railway Labour Executive Association 1989, the court again found state action in a private company’s conduct as federal laws immunized companies from liability if they tested employees for drugs.
Legal experts divided on the probability of lawsuit’s success
“Trump’s suit is DOA,” said Paul Barrett, the deputy director of the Center for Business and Human Rights at New York University’s Stern School of Business.
However, Trump’s lawsuits are likely doomed to fail, said Eric Goldman, a law professor at Santa Clara University in California. The latter has studied more than 60 similar failed lawsuits that sought to take on internet companies for terminating or suspending users’ accounts.
“They’ve argued everything under the sun, including the First Amendment, and they get nowhere,” Goldman said. “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.”