Donald Trump may have filed lawsuits against Facebook, Twitter and YouTube, claiming he and other conservatives have been censored – but legal scholars say his case is probably doomed to fail.
The former president was suspended from Twitter, Facebook and YouTube after the 6 January Capitol attack over fears he would incite further violence. Trump on Wednesday filed class-action lawsuits in federal court in Miami against the three companies, arguing these suspensions violated the first amendment, despite the fact that the companies are private and therefore subject to different rules.
“Trump has the first amendment argument exactly wrong,” said Paul Barrett, the deputy director of the NYU Stern Center for Business and Human Rights. “The first amendment applies to government censorship or speech regulation. It does not stop private sector corporations from regulating content on their platforms.”
Trump says he will sue social media giants over ‘censorship’
Social media platforms, under Section 230 of the 1996 Communications Decency Act, are allowed to moderate their services as they please so long as they are acting in “good faith”. The law also generally exempts internet companies from liability for the material that users post.
But Trump and other conservatives have long argued that Twitter, Facebook and other social media platforms have abused that protection and should lose their immunity – or at least have to earn it by satisfying requirements set by the government.
All three lawsuits ask the court to award unspecified damages, declare Section 230 unconstitutional and restore Trump’s accounts, along with those of the other plaintiffs – a handful of others who have had posts or accounts removed.
Eric Goldman, a law professor at Santa Clara University in California, has studied more than 60 similar, failed lawsuits over the past few decades that sought to take on internet companies for terminating or suspending users’ accounts. He says Trump’s lawsuits are unlikely to go far.
“They’ve argued everything under the sun, including first amendment, and they get nowhere,” Goldman said. “Maybe he’s got a trick up his sleeve that will give him a leg up on the dozens of lawsuits before him. I doubt it.”
Goldman said it’s likely Trump is instead pursuing the suits to garner attention. As president, Trump last year signed an executive order challenging Section 230.
“It was always about sending a message to their base that they’re fighting on their behalf against the evil Silicon Valley tech giants,” Goldman said.
The lawsuit is “meritless” as major platforms are private entities, with first amendment rights to control the content they publish, echoed Vera Eidelman, a staff attorney with the ACLU. Eidelman added that Trump has baselessly claimed these social platforms responded to pressure from the government in their content moderation.
“He fails to back that up with allegations showing that the companies were responding to government coercion or encouragement, which is an issue we would not take lightly,” Eidelman said.
As antitrust battles continue, there have been discussions about how to address the outsized power and influence of big tech firms on users. But ideas about how exactly to address the issue differ widely. Experts say Trump’s lawsuits do not actually address many of the antitrust issues at hand.
Facebook, Google and Twitter all declined comment Wednesday.
“There is an important debate to be had about what kinds of obligations the first amendment may impose on private actors that have so much influence over public discourse, and about how much leeway the first amendment gives to Congress to regulate the activities of those private actors,” said Jameel Jaffer, the executive director of the Knight First Amendment Institute at Columbia University. “But this complaint is not likely to add much to that debate.”
The claims from Trump serve to distract from “legitimate concerns” about how haphazard content moderation or censorship has negatively impacted marginalized communities, said Evan Greer of digital rights organization Fight for the Future.
“While it’s silly to pretend that the moderation decisions of big tech don’t have a significant impact on free expression, the first amendment enables private platforms to make exactly the kind of moderation decisions they wish to make as non-government entities,” she said. “This is not a lawsuit. It’s a fundraising grift.”
