(Photo by Evan Vucci-Pool/Getty Images)
Donald Trump’s LOLsuits against Twitter, Facebook, and YouTube took a hit earlier this week in the courtroom of US District Judge John S. Tigar. Not because any of his claims are in Tigar’s court — they’re not. But because Tigar issued a ruling on the very fact pattern at the center of Trump’s cases against the social media giants. And the ruling was case dismissed.
Back in July, Trump sued the companies in Florida for tortiously deplatforming him after the January 6 Riot. His theory of the case is that this amounts to censorship and a violation his First Amendment rights. Sure, the First Amendment only applies to the government, and private companies have no obligation to let anyone use their megaphone. But what if Twitter, Facebook, and YouTube are actually the government?
Yes, that is literally what Trump is arguing, with a pinch of Section 230 thrown in to sex it up.
Twitter has increasingly engaged in impermissible censorship resulting from threatened legislative action, a misguided reliance upon Section 230 of the Communications Decency Act, 47 U.S.C. § 230, and willful participation in joint activity with federal actors. Defendant Twitter’s status thus rises beyond that of a private company to that of a state actor, and as such, Defendant is constrained by the First Amendment right to free speech in the censorship decisions it makes.
See, Democrats are threatening to take away Section 230 protections for social media platforms, which is coercion, and that turns the companies into state actors. If you think about it … makes no goddamn sense! And, not for nothing, but Trump himself once vetoed the entire defense spending bill because congress refused to repeal Section 230.
Nevertheless, he argues that, “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.” On January 7, 2020.
But linear time isn’t the only problem with this argument. Because, while Trump was wasting three months getting summarily launched off the Florida docket to the Northern District of California — turns out venue clauses in the terms of service are enforceable, who knew! — someone else was making virtually the same argument in Judge Tigar’s courtroom.
And that someone was a group of anti-vax weirdos calling themselves the Informed Consent Action Network, AKA “ICAN.” After getting booted off Facebook, Twitter, and YouTube for peddling COVID-19 misinformation extolling the virtues of hydroxychloroquine, ICAN sued the companies alleging that their First Amendment rights had been violated. By their logic, Rep. Adam Schiff sent nasty letters to Zuck, Jack, and Susan Wojcicki suggesting that allowing their sites to be overrun by horse paste fan clubs was wildly irresponsible, and then the platforms finally lurched into action to mop up some of the worst players. Ipso facto propter hoc, the sites are now the government stifling ICAN’s free speech rights.
Which sounds extremely familiar. And also batshit crazy.
Which is what Judge Tigar said, more or less.
“Simply put, ‘[t]he publicly expressed views of individual members of Congress – regardless of how influential – do not constitute ‘action’ on the part of the federal government,’” he wrote, citing yet another Northern District of California decision finding that Twitter, Google, and YouTube could refuse to host COVID misinformation without becoming Nancy Pelosi’s agents.
“In sum, the Court concludes that ICAN has failed to plausibly allege that Defendants were acting as ‘state actors’ in the removal of ICAN accounts from their platforms,” the court concluded. “Accordingly, ICAN fails to state a claim against Defendants for violation of its First Amendment rights.”
Which is not great, Bob, for Donald Trump and his attempt to get back to doing the thing he loves the most, i.e. tapping out incendiary twaddle that dominates the news cycle every single day.
Twitter immediately docketed a statement of recent decision, just giving Judge James Donato a little heads up that his colleague had recently issued an order “dismissing First Amendment claims against YouTube, LLC and Facebook, Inc. for failure to state a claim upon which relief may be granted.”
In case the court needs yet another precedent to cite while considering the company’s motion to flush this stinker of a case.
Trump v. Twitter [Docket via Court Listener]
ICAN v. YouTube [Docket via Court Listener]
Liz Dye lives in Baltimore where she writes about law and politics.
