An analysis of Trump’s lawsuits: Truth Social v. Big Tech
Tech journalist Kara Swisher labeled Trump as a First Amendment fool in a New York Times story who doesn’t understand that the amendment only applies to “Congress, not Facebook.” Congress rather than YouTube. Privately owned businesses “are not beholden to the same speech regulations that public platforms are,” according to Vanderbilt University law professor Brian Fitzpatrick
. He fully anticipates that the former president’s legal team will be held accountable for bringing a pointless case that is, in his view, only a cloaked fundraising campaign. Erwin Chemerinsky, the dean of Berkeley Law School and a well-known expert on the First Amendment, acknowledged that many situations fell into “a grey area.”
Considering the Context
The question of whether Trump’s attorneys have pled sufficient evidence to overturn the fundamental rule that the First Amendment does not apply to private actions may be left in doubt until you read the entire complaint, which demonstrates that they are aware of the problems. It appears that the circumstances are more complicated than his critics acknowledge.
For instance, the Trump complaint asserted that when Twitter decided to ban Trump’s Twitter account for life on the grounds that his actions on January 6, 2021, amounted to an incitement to violence that persisted after the Senate certified Joe Biden’s election, it acted “in concert” with the CDC and prominent members of the incoming Biden administration protections only apply to Congress, allowing the president and heads of administrative agencies to suspend or terminate the account.
However, this is not the case. In order to prevent this absurd institutional outcome, the wording is now deliberately scrutinized. The constitutional text is a starting point rather than a goal due to the possibility of political exploitation.
Although the First Amendment refers to “Congress,” as noted constitutional law experts and professors Geoffrey Stone and Eugene Volokh have written, “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, how does this more general principle actually apply in real life? As an unlawful delegation of congressional authority to private parties, Section 230 of the Communications Decency Act should be viewed as being inherently illegal, according to Trump’s complaint.
No user or supplier of an interactive computer service shall be regarded as the publisher or speaker of any information provided by another information content provider, pursuant to that clause. This implies that, in the present environment, these platforms are not held to the same standards as common publishers and speakers with regard to the content of their own utterances.
The worst part is that Section 230(c)(2) shields them from legal action for any voluntary action “taken in good faith to prevent access to or availability of material that the provider or user considers being obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.”
In other words, these companies are safe when they attempt to manage their websites to stop these antisocial behaviors. That idea is consistent with common carriers’ rights, who are under a general obligation to accept everyone in order to save people who act inappropriately on trains—an excellent line of potential responsibility that Trump does not pursue.
Truth Social vs. Big Tech: Is Trump’s Claim that Section 230 Is Illegally Exaggerated?
On the other hand, Trump’s assertion that Section 230 is illegal seems over the top. Governments offer immunity to nonprofit, educational, and religious institutions. The financing, however, exempts them from responsibility for the actions of these organizations. And in this instance, it is.
According to Trump, these actions are not being taken “using the unconstitutional authority provided to them by Congress.” The selective removal of content from their home sites, however, was primarily driven by political enmity and is therefore not covered by Section 230, as he may underscore in his amended case (c). The phrase “otherwise undesirable” does not allow businesses complete freedom to act however they like. Instead, it serves as an exclusive savings clause for abusive speech.
To put this restriction into perspective, saying that any well-known scientist who disagrees with the World Health Organization’s or the CDC’s conventional wisdom is spreading “disinformation” would be reeking of “bad faith,” given the clear viewpoint discrimination on a disputed fact.
Trump Also Hits a Sensitive Spot on The Relevant Topic in Truth Social v. Big Tech
When the Trump complaint alleges that Twitter, Facebook, and Google cooperated with the government, it hits a particularly raw nerve. The key takeaway, which may be elaborated on more, is that these companies worked together with CDC officials and members of the incoming Biden administration to craft their attack on Trump and the numerous other individuals who were similarly de-platformed.
Generally, the argument that the private party has the final say in the matter cannot be used to reject such claims. Once again, the language of the constitution has been liberally read to protect essential personal freedom from all forms of governmental encroachment.
A significant constitutional precedent was established in Burton v. Wilmington Parking Authority (1961). In that instance, a café operated by The Eagle Coffee Shoppe, Inc. was located in a city-owned parking garage. Burton, a black client, was denied service only on the basis of his color.
The Supreme Court unanimously overturned the decision, holding that the “state participation” in the overall construction and management of the parking facility made that ostensibly private decision in violation of the Equal Protection Clause even though the Eagle Coffee Shoppe, and only the Eagle Coffee Shoppe, excluded the plaintiff on the basis of race.
Whatever the reason, the court ruled that no state could, even when operating in good faith, effectively shirk its obligations by ignoring them or simply failing to fulfill them. The First Amendment ought to be handled similarly. 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,” claims Burton. As a result, the actions were not “purely private” as defined under the First Amendment.
Uncertainty surrounds Burton’s treatment of the CDC’s alleged level of coordination with Biden administration officials. To say that Twitter, Google, or Facebook made the final decision, however, is insufficient.
Trump’s Lawsuits, a Thorough Investigation Is Imminent
At the very least, these defendants shouldn’t be able to have the case dismissed based only on the pleadings and will instead be the subject of a thorough investigation to see if the links between the private and public realms are close enough in each instance to turn the private activity into state activity. Those conclusions can easily vary from complainant to complainant, jeopardizing the case’s capacity to proceed as a class action and forcing each complainant to pursue their individual case.
Because of its historical significance, Burton gave the Equal Protection Clause of the Fourteenth Amendment a broad interpretation. Claims of censorship brought up under the First Amendment can readily be justified using the court’s rationale.
Unfortunately, not one of the many criticisms of the Trump case that have been made has ever drawn attention to how vulnerable the defendants are if the seemingly credible accusation of concerted action is accurate.
Trump’s remarks prior to the Capitol disturbance raise questions about the conflict between Truth Social and Big Tech.
Let’s start with the most straightforward argument: Because of Trump’s actions leading up to the occupation of the Capitol building on January 6, 2021, there was an incitement to violence, and because of that, Twitter (now acting as a government actor) may legally ban him for life.
“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 law violation except where such advocacy is directed at inciting violence,” the court stated in Brandenburg v. Ohio (1969), a case involving the Klu Klux Klan’s organizing efforts.
There is no room for doubt in this situation; regardless of how accurately President Trump’s remarks on January 6, 2021, were interpreted, new slaughter is very unlikely and not immediately likely. The government (and its private sponsors) must thus keep quiet until he does some heinous deed. Trump does not even remotely satisfy Brandenburg’s standards with his erratic tweeting and commenting.
In a similar vein, Twitter’s attempts to suppress claims made by well-known scientists that COVID-19 is a virus that escaped from the Wuhan Institute of Virology are precisely the kind of viewpoint discrimination that the Constitution forbids—at least if Twitter acted in concert with the federal government.
The power of the idea to get itself accepted in the competition of the market, as applied to the COVID-19 public health debates, is the fairest measure of truth, according to Justice Oliver Wendell Holmes in Abrams v. the United States (1919), a case claiming wartime plots against the US. The truth can only be determined once all points of view have been heard, which will not occur if businesses like Facebook can silence critics until the government changes its opinion.
None of the many statements denouncing Trump’s lawsuit took the time to examine the social practices of these major internet businesses, whose dogmatic attitudes may have prevented reasonable solutions to COVID. The tech companies mentioned in Trump’s lawsuit might have collaborated with governmental organizations. They ought to be held to the same constitutional requirements as their government equivalents if that is the case.