On July 7, Donald Trump launched what he hopes will be certified as a class-action lawsuit against the social media giants to prevent them from deplatforming views they disagree with. In the filing against Twitter — the only one this author read — Trump argues that “the immediacy of the Defendants’ threat to its Users’ and potentially every citizen’s right to free speech cannot be overstated” and that the social media giants made their decisions not as purely private actors, but “at the behest of, with cooperation from, and with the approval of, Democrat lawmakers.”
The most compelling portion, politically, was the claim that “Democrat legislators then wielded that immunity [provided by Section 230], combined with threats to revoke that immunity or to otherwise regulate Defendants, to use Defendants as a tool to effect censorhip and viewpoint discrimination ... that the Democrat legislators knew they could not accomplish on their own.” The social media giants were repeatedly dragged before Congress to be scolded for not doing more to combat “disinformation” and extremism. The filing references a 1973 case related to school desegregation in Mississippi, where the Supreme Court had found that “Congress cannot lawfully induce, encourage, or promote private persons to accomplish what it is constitutionally forbidden to accomplish.” In this case, it would plainly be unconstitutional for the Congress to pass a law criminalizing claims that the 2020 election was stolen, but it leaned heavily on private companies to prevent precisely such claims from being expressed.
After a detour to detail criticisms of the CDC, Anthony Fauci (regarding the absurd claim that he was given proof early that SARS-CoV-2 came from the Wuhan Institute of Virology), China, and vaccines, the complaint returns to what it seeks.
It claims a violation of the First Amendment by virtue of Congress leaning on private companies to ban speech that they disapprove of.
The prayer for relief is for monetary damages, reinstatement of banned accounts, a removal of the warning labels Twitter attaches as commentary to tweets. And it requests a declaration of the unconstitutionality of sections 230(c)(1) and 230(c)(2) — which allow providers to remove material they consider “objectionable, whether or not such material is constitutionally protected.”
But, were section 230(c) found unconstitutional, computer services could be directly sued for any content appearing on their services. In the opinion of this author, this could dramatically increase the level of censorship, since a service like Twitter could itself potentially be sued for its users’ tweets and would therefore be incentivized to be far more restrictive, or even require pre-clearance before allowing a tweet to be posted. 230’s removal would make it extremely difficult for new players to enter the market, due to the risk of potentially disastrous liability. Ending 230 is not a real solution to the problem of social media censorship.
The lawsuit raises important points and directly addresses the fact that the government — the Congress in particular — has been directing/pressuring the social media giants, and that therefore the First Amendment comes into play by virtue of Twitter’s decision actually being made, in part, by the government itself.
But what is truly needed, as Justice Clarence Thomas pointed out in his concurring opinion earlier this year on a previous Trump Twitter case, is new legislation that recognizes the common carrier aspect of social media in the present day. This may include changes or replacement of section 230, but not simply its repeal.
Too bad the Trump Administration did not present a draft of such legislation during his presidency.
