Government

Trump Claims He And Twitter Are Both 'The Government' In Tortious Deplatforming Law Suit

Yeah, that's the ticket.

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Back in July, former President Trump bellied up to the bar in the Southern District of Florida and sued Twitter, Facebook, and YouTube, as well as their respective CEOs, for tortious deplatforming. In his telling, the protections afforded by Section 230 of the Communications Decency Act transformed websites into agents of the government, magically turning all content moderation into censorship in violation of the First Amendment.

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.”

Apparently, Zuck is president now. Don’t forget to like, upvote, and fave!

Apart from the eleventy-seven other problems with this argument, there’s the minor issue that the terms of service for each of these platforms require users to file all claims in San Francisco. Unsurprisingly, Twitter’s lawyers argue that this forum selection clause is binding upon Trump and the ragtag band of weirdos who have joined this suit as plaintiffs, including author Naomi Wolf and talkshow host Wayne Allyn Root.

On September 1 — exactly one day after the plaintiffs bothered to effect actual service on the company — Twitter moved to have the case transferred to the Northern District of California, writing:

The Twitter User Agreement requires that disputes relating to the use of Twitter’s services must be resolved in federal or state court in San Francisco, California. In particular, the User Agreement states that “[a]ll disputes related to these Terms or Services will be brought solely in the federal or state courts located in San Francisco County, California, United States,” and that the parties “consent to personal jurisdiction and waive any objection as to inconvenient forum.” Terms of Service at 9.

But Donald Trump has an answer for that one, and it is that he is actually the government.

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“Defendant’s Motion should be denied because the forum selection clause in Defendant’s TOS does not apply to Plaintiff, who at all times relevant to this dispute was the sitting President of the United States and the head of the Executive Branch of the federal government,” he wrote.

Assume arguendo that Donald Trump is aware that he is no longer president. Yes, he did claim yesterday that “Your Republican Presidential candidate won in a landslide.” But let us err on the side of generosity and take it as a given that he knows that someone else is in the Oval Office this morning, tapping out boring tweets on the @POTUS handle — the one Trump himself did not deign to use, preferring to humiliate and fire his underlings via the @realDonaldTrump account.

Relying on the Second Circuit holding in Knight First Amdt. Inst. at Columbia Univ. v. Trump, 928 F.3d 226 (2d Cir. 2019) that Trump could not block critics because he was using his account for official government business, Trump’s lawyers argue that the account is now and forever a government entity and thus exempt from both the company’s forum selection clause and its “New Rules on Violence and Physical Harm.”

“One thing is undeniably clear in this case: Plaintiff’s account was a government account, and not a private one when he was censored,” Trump’s lawyers argue, seemingly unaware that their client is now a civilian and was so on July 7, 2021 when the complaint was filed to vindicate his rights as a private citizen whose First Amendment Rights were being cruelly trampled by Jack Dorsey, Secretary of Vegan Meditation.

Note that this argument does not apply to any of the other plaintiffs. Sorry, Naomi, you’ll have to speak your truth about children forgetting how to smile over on Telegram.

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The plaintiffs make a whole raft of equally strange arguments about the enforceability of Twitter’s forum selection clause, which has been routinely upheld in court, including an argument that California judges will simply throw up their hands in confusion if forced to interpret the state law violations the plaintiffs tacked onto their amended complaint to justify venue in Florida.

These include claims under the Florida Stop Social Media Censorship Act and the Florida Deceptive and Unfair Trade Practices Act. The social media law has been enjoined since July 1, i.e. before this case was even filed. Also in July, the Southern District of Florida dismissed a similar FDUTPA claim against Google. (No points will be awarded for guessing which sparklemagic libelslander lawyer filed that LOLsuit.)

But it’s fine, see, because look here at this footnote:

Violations of the SSMCA are deemed to be violations of FDUTPA as well; unless otherwise noted, henceforth the use of “FDUTPA” will necessarily encompass the SSMCA as well.

Also Twitter is like crack cocaine, so users can’t give meaningful consent because they’re jonesing for a hit and are coerced into agreeing to the terms of service.

The total immersion that Defendant seeks to achieve on the part of its Users leads to a dependency that alters the relative bargaining positions of Defendant and those Users. Thus, even when Defendant prompts its Users to review its updated TOS, Defendant knows that its Users are dependent on its services and more than likely than not to accept its changes, whatever they may be.

Donald Trump needs his fix! Come on, @Jack, hook a government entity up!

It’s all very confusing. Just remember that Twitter is the government, and cannot abridge poor Donald Trump’s First Amendment rights. Also Trump is the government and cannot be bound by the normal rules of civil procedure. At the same time, Trump is not the government because he lives in Florida and has venue-specific rights under state laws, even ones that have been blocked by courts.

Sounds legit.

Trump v. Twitter [Docket via Court Listener]

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

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