Trump v. Big Tech

 

Former president Donald J. Trump has bullied his way back into the public eye with his recent broadside against Twitter, Facebook, and Google (YouTube). The target of his lawsuit is their systematic and allegedly unconstitutional censorship of political speech, including, of course, his own. His critics predict that the lawsuit will suffer an early and ignominious death. “ ‘As stupid as you’d think’: Trump’s social media lawsuit looks like a mess,” blared Vanity Fair. Tech journalist Kara Swisher, writing in the New York Times, dismissed Trump as a First Amendment dummy who fails to understand that the amendment applies only to “Congress, not Facebook. Congress, not Twitter. Congress, not YouTube.” Vanderbilt University law professor Brian Fitzpatrick indignantly proclaimed that privately controlled companies are, in Vanity Fair’s paraphrase, “not beholden to the same speech laws that public platforms are”—and fully expects that Trump’s lawyers will face legal sanctions for filing a frivolous lawsuit that is, he argues, a thinly disguised fundraising effort by the former president. While noted First Amendment expert and dean of Berkeley Law School Erwin Chemerinsky allowed that many cases fall into “a gray area,” he insisted that this lawsuit against private parties does not.

That is, until you read the actual complaint, which shows that Trump’s lawyers are aware of these objections. It is indeed a gray-area question as to whether they have pleaded enough facts to overcome the bedrock principle that the First Amendment does not apply to private action. It turns out that matters are more complicated than his critics acknowledge.

For example, the Trump complaint alleged that Twitter acted “in concert” with the CDC and prominent officials of the incoming Biden administration when it decided to impose a lifetime ban on Trump’s Twitter account on the grounds that his actions on January 6, 2021, amounted to an incitement to violence that remains present after the Senate certified the election of Joe Biden.

A literal interpretation of the Constitution would hold that First Amendment protections apply only against Congress, so that the president and heads of administrative agencies could repress with constitutional impunity the speech of their political opponents. But this is not the case. At this juncture, a purposive analysis takes hold of the text to avoid this absurd institutional result. The risk of political abuse makes the constitutional text the jumping-off point, not the final resting place. As noted constitutional law scholars and professors Geoffrey Stone and Eugene Volokh have written, “Although the First Amendment says ‘Congress,’ the Supreme Court has held that speakers are protected against all government agencies and officials: federal, state, and local, and legislative executive, or judicial.”

So the next question is, how does this broader principle play out? One bold claim in Trump’s complaint is that Section 230 of the Communications Decency Act should be regarded as per se unconstitutional, as an unlawful delegation of congressional power to private parties. That section reads: “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.” In the current context, this means that these companies, which operate as platforms, are not held accountable as ordinary publishers and speakers are for the content of their own words.

The kicker is that Section 230(c)(2) then offers them explicit protection against civil liability for any action “voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.” In other words, these companies are protected when they seek to manage their sites to get rid of these asocial forms of behaviors. That understanding is in line with the rights of common carriers—and a worthy line of potential liability that Trump does not pursue—who are under a general duty to take all comers except for those who misbehave on the train.

Trump, however, seems to take his attack on Section 230 too far when he brands it unconstitutional. Governments grant immunities to charitable, educational, and religious institutions. But that grant does not make them liable for the actions of these groups. And so here.

Contrary to Trump’s claim, these actions are not “using the unconstitutional authority delegated to them by Congress.” But at the same time, he might amend his complaint to stress that the selective removals of material from their home sites were heavily motivated by political antipathy and thus are not protected by Section 230(c). The phrase “otherwise objectionable” does not allow companies to do anything they choose. Rather, it operates as a limited savings clause that applies only to abusive forms of speech. To put this limitation in context, holding, for example, that any eminent scientist who disagrees with the received wisdom of the World Health Organization or the CDC engages in “disinformation” would reek of “bad faith,” given the explicit viewpoint discrimination on a disputed question of fact.

The Trump complaint also hits a raw nerve when it alleges that the actions undertaken by Twitter, Facebook, and Google were “in concert” with the government. The argument here, which can be further fleshed out, is that these companies were working hand-in-glove with the CDC and incoming officials of the Biden administration to perfect their attack on Trump and the many other persons who were similarly deplatformed. In general, claims of this sort cannot be dismissed on the grounds that the private party has ultimate control over the decision. Once again, the constitutional text has been broadly construed to protect key personal liberties against all forms of government attack.

One key constitutional decision is Burton v. Wilmington Parking Authority (1961). In that case, the Eagle Coffee Shoppe, Inc., operated a restaurant in a city-owned public parking garage. It refused to serve Burton, a black patron, solely because of his race. The Delaware Chancery court held that that decision was private action outside the protection of the Equal Protection Clause, but the Supreme Court reversed unanimously, holding that the “state participation” in the overall construction and management of the parking facility made that ostensibly private decision illegal under the Equal Protection Clause, even though the Eagle Coffee Shoppe, and only the Eagle Coffee Shoppe, excluded the plaintiff on the grounds of race. The court held that “No state may effectively abdicate its responsibilities by either ignoring them or by merely failing to discharge them whatever the motive may be,” even in good faith. That same logic should apply to the First Amendment. As Burton stated, the city agency “has so far insinuated itself into a position of interdependence with Eagle that it must be recognized as a joint participant in the challenged activity.” Hence, that activity was not “purely private” for the purposes of the First Amendment.

Whether the level of cooperation alleged between the CDC and incoming officials of the Biden administration is covered by Burton is unclear. But it is not enough to say that the ultimate decision was made solely by Twitter, Google, or Facebook. At the very least, these defendants should not be able to dismiss the case on the pleadings alone but will have to face a fact-intensive inquiry to determine whether these private/public connections are in each individual case close enough to convert private into state action. Those outcomes could easily vary from plaintiff to plaintiff, which may well negatively impact whether the case could go forward as a class action, perhaps forcing each complainant to pursue his or her individual case.

In Burton, the historic importance of the Equal Protection Clause of the Fourteenth Amendment spurred an expansive reading of it. The court’s rationale can easily apply to censorship claims challenged under the First Amendment. Unfortunately, none of the many condemnations of the Trump suit ever mention the vulnerability of the defendants’ actions if the facially plausible claim of concerted action holds.

Start with the simplest proposition that Twitter (now as a government actor) may properly ban Trump for life, claiming his conduct surrounding the occupation of the Capitol building on January 6, 2021, was an incitement to violence. The proper governmental response to possible threats of violence was articulated in Brandenburg v. Ohio (1969), involving the organizing efforts of the Klu Klux Klan: “the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” No gray area here: whatever the correct interpretation of Trump’s remarks on January 6, 2021, the risk of any future violence is vanishingly small and not imminent. Accordingly, the government (and its private allies) must stand down until he engages in some palpable form of misconduct. Trump’s tendency to tweet/comment erratically does not come remotely close to reaching the standard outlined Brandenburg.

Similarly, Twitter’s efforts to ban statements of prominent scientists who claim, more than plausibly, that COVID-19 is a virus that escaped from the Wuhan Institute of Virology is exactly the form of viewpoint discrimination that the Constitution forbids—if Twitter has acted in concert with the federal government. Long ago, Justice Oliver Wendell Holmes wrote in Abrams v. United States (1919), a case charging wartime conspiracies against the United States, that “the best test of truth is the power of the thought to get itself accepted in the competition of the market,” which applies to the public health disputes that arose out of COVID-19. It is only with a full airing of all views that the truth can be defined, and that cannot happen if firms like Facebook can silence critics until the government changes its mind.

None of the many denunciations of Trump’s lawsuit paused to question the social practices of these huge tech companies, whose rigid positions may well have slowed down sensible responses to COVID. The tech companies targeted in Trump’s suit may well have acted hand-in-glove with government agencies. If so, then they should be subject to the same constitutional constraints as their government compatriots.

© 2021 by the Board of Trustees of Leland Stanford Junior University.

Published in General
Like this post? Want to comment? Join Ricochet’s community of conservatives and be part of the conversation. Get your first month free.

There are 14 comments.

Become a member to join the conversation. Or sign in if you're already a member.
  1. The Reticulator Member
    The Reticulator
    @TheReticulator

      Thank you. This article is one to keep for future reference–perhaps near future.

    • #1
  2. CarolJoy, Not So Easy To Kill Coolidge
    CarolJoy, Not So Easy To Kill
    @CarolJoy

    I might be missing it, but I don’t see anywhere in what you are laying out that represents the ability of a group of social media moguls to declare they own platforms, not publishing ventures, and then proceed to act like publishers.

    It is my understanding that aspect of Trump’s case would involve the social media moguls to be able to show once and for all that platform owners they are, publishers they are not. (Zuckerberg consistently hides behind the platform aspect of his business. But he has had his attorneys declare him a publisher in a prior lawsuit, as that designation was necessary for that case.)

    Of course maybe the wording of Trump’s legal pleading against them doesn’t raise that issue.

    • #2
  3. Stina Member
    Stina
    @CM

    It’s incredibly convenient when Twitter wipes out Trump’s Twitter account in the face of an impeachment (by public officials ie congress) so that no one may consult the record on what was actually said by Trump during the course of events. And then to have tweets manufactured by someone to be used as evidence in the impeachment case.

    There is enough There there to warrant suspicion.

    We have a serious problem wrt defamation and libel in our law. And we have a serious problem in our inability to force the government to hold themselves accountable. Make Citizen’s Arrests Great Again.

    Change the libel/defamation threshold for public and private individuals and bar tech from censoring political viewpoints and disputed factual information as a platform. This should allow people (private and public) to sue for lies and slander and “disinformation” that they ostensibly refuse to censor.

    • #3
  4. The Reticulator Member
    The Reticulator
    @TheReticulator

    CarolJoy, Not So Easy To Kill (View Comment):

    I might be missing it, but I don’t see anywhere in what you are laying out that represents the ability of a group of social media moguls to declare they own platforms, not publishing ventures, and then proceed to act like publishers.

    Starting with paragraphs 5 and 6?  Doesn’t that address the topic?

     

    • #4
  5. Stina Member
    Stina
    @CM

    The Reticulator (View Comment):

    CarolJoy, Not So Easy To Kill (View Comment):

    I might be missing it, but I don’t see anywhere in what you are laying out that represents the ability of a group of social media moguls to declare they own platforms, not publishing ventures, and then proceed to act like publishers.

    Starting with paragraphs 5 and 6? Doesn’t that address the topic?

     

    Epstein doesn’t really address the merits of this. I’m not sure if Trump is pursuing this direction. If he is, Epstein doesn’t discuss this angle… only touching on Trump’s challenging of its constitutionality being a bridge too far.

    I would be curious of Epstein’s opinion on the platform/publisher distinction, facebook’s legal history of claiming one or the other as it suits them in legal challenges, and whether Section 230 would benefit from making a clear legal distinction between platform and publisher if it doesn’t already.

    However, this wasn’t about 230, but Trump’s specific challenging of it.

    • #5
  6. Flicker Coolidge
    Flicker
    @Flicker

    Did Trump’s complaint actually make the allegations and address the law and precedences with regard to any claims by Trump that the social media companies were acting in concert with, or under the advice or direction of, government officials?  It seems that this would be necessary for the case to continue and also for discovery of communications between government and companies that would support the such allegations.

    • #6
  7. The Reticulator Member
    The Reticulator
    @TheReticulator

    Richard Epstein: The Trump complaint also hits a raw nerve when it alleges that the actions undertaken by Twitter, Facebook, and Google were “in concert” with the government. The argument here, which can be further fleshed out, is that these companies were working hand-in-glove with the CDC and incoming officials of the Biden administration to perfect their attack on Trump and the many other persons who were similarly deplatformed. In general, claims of this sort cannot be dismissed on the grounds that the private party has ultimate control over the decision

    I wonder if a case can be made that government participation in these social media forums is evidence that they are acting “in concert” with government.  Would government agaencies participate in forums that behaved in ways they thought were in violation of government policy?  

    • #7
  8. CarolJoy, Not So Easy To Kill Coolidge
    CarolJoy, Not So Easy To Kill
    @CarolJoy

    The Reticulator (View Comment):
    In the current context, this means that these companies, which operate as platforms, are not held accountable as ordinary publishers and speakers are for the content of their own words.

    Paragraph 5 & 6 lay out what the law states regarding a social media entity that is considered to be a platform.

    So if Facebook and twitter are platforms, they need to hold themselves to the letter and standard of what the law states.

    I was entertaining the possibility that FB and twitter might consider themselves to be platforms, but actually act like and be  publishers. Zuckerberg himself must realize that having his company conform to the legal definition of “platform” offers significant advantages, as on several occasions, he has claimed that  is what FB is.

    Yet when it suits his needs, he has had his lawyers submit to a court that he is a publisher. 

     

     

     

     

    • #8
  9. Franco Member
    Franco
    @Franco

    Richard Epstein: Former president Donald J. Trump has bullied his way back into the public eye

    First sentence.

    Epstien may be able to interpret laws, but  I think he’s disingenuous in his characterizations. He’s obviously biased against him and so I’ll take his legalese gobbled-gook with a certain skepticism. It’s clearly spin and advocacy couched in faux objectivity.

    Epstien is a lawyer. I’m sure nearly every case he’s ever taken on could be characterized as the plaintiff “bullying” his way back into the public eye. Moreover this is supposed to be a serious violation of free speech at the very least smacks of political chicanery, and Epstien is supposed to be a libertarian. Doesn’t seem like his heart is in it when it comes to people he doesn’t approve of. So much for his credibility.

    The first two paragraphs present the case from the point of view of… wait for it… the free speech stalwarts Vanity Fair and the New York Times. Why? Why present that case first? The rebuttal was tepid. If Epstien thinks Trumps legal team is inept, then why doesn’t he try to help? I wouldn’t be surprised if his legal team isn’t top-notch, but that’s because people like Epstien don’t want to defend him for various reasons, but mostly because it would damage their future prospects.

    Then he proceeds to add his weak protests and sniped around the edges. This post looks designed more to obfuscate than to clarify. Lawyers do that too, quite well when they so desire.

    I wonder if the only citations of case law Epstien could find had to come from free speech cases that defended outright racism, invoking the Klan in one and a disgusting refusal of service to a black man in the other. 

     

     

    • #9
  10. The Reticulator Member
    The Reticulator
    @TheReticulator

    CarolJoy, Not So Easy To Kill (View Comment):

    The Reticulator (View Comment):
    In the current context, this means that these companies, which operate as platforms, are not held accountable as ordinary publishers and speakers are for the content of their own words.

    I was not the writer or even the quoter of those words. 

     

     

     

     

     

    • #10
  11. W Bob Member
    W Bob
    @WBob

    Richard Epstein: None of the many denunciations of Trump’s lawsuit paused to question the social practices of these huge tech companies, whose rigid positions may well have slowed down sensible responses to COVID. The tech companies targeted in Trump’s suit may well have acted hand-in-glove with government agencies. If so, then they should be subject to the same constitutional constraints as their government compatriots.

    If it’s determined that the tech cos. acted in concert with the government, does that create a permanent prohibition on their censorship in that specific case? Or could they just change course, make sure they are not in communication with any government actor, and then keep doing what they were doing, this time of their own volition only? Under this narrow analysis, surely they have the right to decide on their own to only allow content that is in line with official government policy.

    But under the bigger picture, what they are doing has got to be illegal. Talking about ivermectin is not “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable”.

    I mentioned in another thread, what if Verizon developed a powerful AI to listen to all telephone conversations. Every time you talk on the phone to someone about election fraud…click. About ivermectin…click. About the wuhan lab leak…click. About anything the DNC doesn’t like…click. Is there currently a law that would prohibit Verizon from doing that? And if so, why doesn’t it apply to Facebook and friends?

    • #11
  12. Joker Member
    Joker
    @Joker

    One aspect of Trump’s treatment has been that all the major platforms acted in unison. Whether that was in concert with a government entity or personnel is evidently an open question. Sure, it could be that the bans are the result of biased moonbats being in charge of each platform and coming to the same conclusion and imposing identical sanctions. 

    I say that because in the case of Masterpiece Cake, the plaintiff could have gone to dozens of other vendors for a gay wedding cake. But in this instance, there are no comperable alternatives. This fact pattern of this case has more in common with “white only” restaurants (plaintiff wins all day long) than Masterpiece (defendant wins eventually.)

    What’s the original intent of the slippery loopholes contained in the 230 language “good faith” and “otherwise objectionable?” I can’t believe that Trump’s treatment was considered a reasonable outcome by those who formulated Sec 230. (Substitute say, AOC or Shumer for Trump.)

    • #12
  13. Flicker Coolidge
    Flicker
    @Flicker

    And you may say that private tech companies concern only themselves and their customers, but they use public air for their cell towers and public easements for their cables.  The cost of infrastructure which is shared with the public, and the visual cluttering up of the world, are everybody’s concern.

    • #13
  14. The Reticulator Member
    The Reticulator
    @TheReticulator

    Joker (View Comment):
    One aspect of Trump’s treatment has been that all the major platforms acted in unison. Whether that was in concert with a government entity or personnel is evidently an open question.

    I wonder if an FOIA request would be able to get more information about Obama’s meeting with big tech in 2013 where they talked about controlling narratives wrt terrorism.  We all know that “terrorism” was just the pretext. 

    • #14