Trump Files LOLSuit Against Tech Giants For Tortious Deplatforming

The stupid, it burns.

(Photo by SAUL LOEB/AFP/Getty Images)

This morning Donald Trump held a press conference at his Bedminster, New Jersey golf club to announce a series of lawsuits against YouTube, Facebook, Twitter, and their CEOs. It was predictably batshit, with the former president careening from one conspiracy theory to the next.

Who shot poor, innocent Ashli Babbitt? Wuhan lab leak! Why are they trying to suppress the truth about hydroxychloroquine, that miracle COVID cure?

But it was nowhere near as loony as the lawsuits, whose very existence on the federal docket proves that the First Amendment is alive and well — if you can say this shit in public, then you can say literally anything.

The theory of the case is that Section 230 of the Communications Decency Act is unconstitutional in that it illegally deputizes private businesses to restrict speech in violation of the First Amendment.

But how can a private business violate the First Amendment, which is explicitly limited to government actors?

Well, it turns out that Facebook is actually the government! Also Twitter and YouTube. Who knew? And how does Zuck even find the time to be president when he’s so busy electric flag surfing?

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Section 230(c)(2) purports to immunize social media companies from liability for action taken by them to block, restrict, or refuse to carry “objectionable” speech even if that speech is “constitutionally protected.”

In addition, Section 230(c)(1) also has been interpreted as furnishing an additional immunity to social media companies for action taken by them to block, restrict, or refuse to carry constitutionally protected speech.

Section 230(c)(1) and 230(c)(2) were deliberately enacted by Congress to induce, encourage, and promote social medial companies to accomplish an objective—the censorship of supposedly “objectionable” but constitutionally protected speech on the Internet—that Congress could not constitutionally accomplish itself.

Congress cannot lawfully induce, encourage, or promote private persons to accomplish what it is constitutionally forbidden to accomplish.”

The argument that Facebook is magically transformed into a state actor when Congress allows it to moderate user-generated content is laughable on its face, particularly when undergirded by a completely fictitious history of Section 230.

Mike Masnick’s classic TechDirt piece Hello! You’ve Been Referred Here Because You’re Wrong About Section 230 Of The Communications Decency Act is a good primer, but TL;DR, Congress wasn’t aiming to censor objectionable speech when it immunized websites for moderating user-generated content; it was aiming to allow the internet to grow without the threat of crippling litigation every time some website deleted an obnoxious comment.

And not to put too fine a point on it, but hinting darkly about “Democrat lawmakers” using their supposedly coercive power to force social media platforms to censor Republicans is fucking rich. It takes serious stones to accuse Democrats of threatening to abolish Section 230 as a means of coercing tech companies in the very same lawsuit where you’re asking the court to abolish Section 230 as an unconstitutional assault on the First Amendment.

Mean Democrats are making tech companies censor Republicans by threatening to abolish this unconstitutional statute? REALLY?

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Not to mention the fact that Republicans like Josh Hawley and Ted Cruz have been leading the charge to get rid of Section 230 while spewing abject nonsense about poor, downtrodden Republicans stifled by evil tech titans. In December, Trump vetoed the $740 million National Defense Authorization Act because Congress refused to nuke Section 230 as the price for getting a defense budget passed. But, please, tell us more about Democrats threatening to get rid of Section 230 if the tech companies don’t fall in line.

As for the argument that hosting speech makes private businesses government actors for the purposes of the First Amendment, noted pinko activist Justice Brett Kavanaugh might beg to differ. Here he is laying it out just two years ago in Manhattan Community Access Corp. v. Halleck, 139 S. Ct. 1921 (2019)

In short, merely hosting speech by others is not a traditional, exclusive public function and does not alone transform private entities into state actors subject to First Amendment constraints.

If the rule were otherwise, all private property owners and private lessees who open their property for speech would be subject to First Amendment constraints and would lose the ability to exercise what they deem to be appropriate editorial discretion within that open forum. Private property owners and private lessees would face the unappetizing choice of allowing all comers or closing the platform altogether. “The Constitution by no means requires such an attenuated doctrine of dedication of private property to public use.” Hudgens , 424 U.S. at 51996 S.Ct. 1029 (internal quotation marks omitted). Benjamin Franklin did not have to operate his newspaper as “a stagecoach, with seats for everyone.” F. Mott, American Journalism 55 (3d ed. 1962). That principle still holds true. As the Court said in Hudgens , to hold that private property owners providing a forum for speech are constrained by the First Amendment would be “to create a court-made law wholly disregarding the constitutional basis on which private ownership of property rests in this country.” 424 U.S. at 51796 S.Ct. 1029 (internal quotation marks omitted). The Constitution does not disable private property owners and private lessees from exercising editorial discretion over speech and speakers on their property.

And even if these preposterous lawsuits manage to survive 12(b)(6) motions, there are one or two more teensy little problems. Such as venue, because tech companies’ user agreements do not generally provide for process in the Southern District of Florida. So, if Trump wants to take a bite out of Zuck, he’s going to have to get himself to California.

Also there’s the minor matter of the sites’ terms of service, which the plaintiffs readily admit they agreed to.

Neither Plaintiff nor Putative Class Members were “free to decline” the speech restrictions imposed by YouTube in its Terms of Service (TOS) if they wished to use the YouTube platform. Use of its platform was expressly conditioned on agreeing to these restrictions, or User access was denied.

They’re so close! Not to winning the case, of course. But to grokking that, while they’re entitled to say any fool thing they want, they’re not entitled to use someone else’s megaphone to do it.

There’s also the minor matter of linear time, since the vast majority of the harms alleged took place before January 20, 2021, and were thus the responsibility of the plaintiff himself. Trump has neatly solved this conundrum by pretending that Joe Biden has been in charge of the CDC all along, nefariously forcing YouTube to take down videos preaching the good word about hydroxychloroquine.

In censoring the specific speech at issue in this lawsuit and deplatforming Plaintiff, Defendants were acting in concert with federal officials, including officials at the CDC and the (Biden) White House.

It’s all so mind-numbingly stupid. And, quite frankly, exactly what one would expect from a crackerjack team led by John Coale, a retired tort lawyer whose claim to fame is being married to Greta van Susteren, backed up by a bunch of guys from a personal injury and real estate firm in Connecticut, with local counsel hailing from a commercial litigation firm in Coral Gables.

There’s a reason Republican stalwarts Kirkland & Ellis and Jones Day stayed far, far away from these cases. And that reason is CANCEL CULTURE.

Haha, just kidding. The reason is that these cases are an embarrassing pile of horseshit. It’s a naked fundraising ploy disguised as a lawsuit. But on those terms, it might be a winner.

Trump v. YouTube [Docket via Court Listener]
Trump v. Facebook [Docket via Court Listener]
Trump v. Twitter [Docket via Court Listener]


Elizabeth Dye lives in Baltimore where she writes about law and politics.