Government

Trump Throws Courthouse Tantrum, Demands Judge Reinstate His Twitter Account

PA. THET. IC.

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(Photo by Mark Wilson/Getty Images)

On Friday, Donald Trump fired off the latest salvo in his bid to get back on Twitter, demanding that the court force the company to reinstate his account immediately. The motion is exactly what you’d expect when three personal injury and civil litigation firms team up with Greta van Susteren’s husband to file a bogus First Amendment claim — which is to say, it’s a pile of steaming hot garbage.

Just two weeks ago, this crew of Legal Eagles ‘splained that Twitter’s forum selection clause doesn’t apply to Trump because he was functionally “the government” on January 8 when his account was permanently suspended. But now he demands that his account be reinstated because “the government” used Twitter to censor him on January 8, and also before that when it slapped warning labels on his COVID misinformation tweets.

Defendant had censored Plaintiff prior to January 8, 2021, on the putative ground that Plaintiff was spreading “misinformation” regarding COVID-19. (Homberg Decl. ¶¶ 16, 17.) In censoring Plaintiff’s posted content, Defendant was acting as a willful participant in joint activity with federal actors, including the Department of Health and Human Services (“HHS”).

As proof that Trump’s HHS Secretary Alex Azar was cahootsing with Twitter in 2020, Trump’s team cites Biden Press Secretary Jen Psaki’s admission on July 15, 2021 that the White House flags COVID misinformation for social media sites and requests that it be removed, which makes Twitter a government agent censoring him retroactively. Because if once you’ve dug yourself in on nonsensical arguments about the First Amendment, you can hardly be expected to be bound by social constructs like linear time.

And indeed Trump’s arguments are utter nonsense made in abject bad faith. Take this paragraph, which cites a 20-year-old dissent by Justice Thomas:

Defendant’s censorship of Plaintiff became state action for First Amendment purposes when it resulted from “the State’s exercise of ‘coercive power,’ . . . when the State provided ‘significant encouragement, either overt or covert’” in Plaintiff’s censorship, or when Defendant acted as a “willful participant in joint activity” with the state in censoring Plaintiff. United Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n. 531 U.S. 288, 296 (2001) (Thomas, J., dissenting) (citations omitted). All three factors—coercion, significant encouragement, and willful participation in joint activity—are in operation here. Defendant’s censorship of Plaintiff evidences a pattern of content and viewpoint-based prior restraint, carrying the heaviest presumption against constitutional validity, and violates Florida’s newly enacted SSMCA.

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The referenced case involved an athletic body which administered state-dictated rules and whose members received a state pension. The four conservative Justices disagreed with the majority holding, with Justice Thomas writing “We have never found state action based upon mere ‘entwinement,'” and complaining that the majority’s holding “not only extends state-action doctrine beyond its permissible limits but also encroaches upon the realm of individual freedom that the doctrine was meant to protect.”

And not for nothing, but “Florida’s newly enacted SSMCA” was never enacted, because Northern District of Florida Judge Robert Hinkle enjoined the state from enforcing such a blatant violation of the First Amendment. Similarly, Trump continues to argue that Twitter’s “uneven” enforcement of its own policies violates the Florida Deceptive and Unfair Trade Practices Act, despite a ruling in this district just three months ago tossing a similar claim against Google.

The whole thing is a hacky exercise in whataboutism: Vox and USAToday speculated that the January 6 riots might contribute to the spread of COVID, but they didn’t say that about the racial justice protests, which proves somehow that Twitter is biased. Trump himself vetoed a defense spending bill because it didn’t contain a repeal of Section 230, but Nancy Pelosi said that social media would have to be regulated, which amounts to coercion sufficient to turn Twitter into a state actor. If the glove does not fit, you must acquit.

Plus Alan Dershowitz tapped out a two-page declaration in July opining that the court should force Twitter to give Trump his account back because “the plaintiff’s right to speak freely has been seriously compromised by Facebook and Twitter. Moreover, the rights of his audience to have access to his views have been seriously curtailed.”

And if the court isn’t persuaded by Dersh’s derping about the First Amendment right to use a private company’s megaphone, perhaps they’ll be persuaded by Corey Lewandowski’s declaration that the Twitter ban “led to the demise of the Trump Campaign merchandising and fundraising program.”

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Or perhaps not. And in the very likely event that Judge Robert N. Scola, Jr. dropkicks this motion, all that will have been accomplished is a public tantrum proving that Trump is an attention-addict who can’t win in 2024 without being given free rein to lie and foment violence on social media platforms.

So much winning.

Trump v. Twitter [Docket via Court Listener]

Elizabeth Dye (@5DollarFeminist) lives in Baltimore where she writes about law and politics.

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