Donald Trump Sues Big Tech

Last week Donald Trump filed class action lawsuits against Facebook, Twitter and YouTube. As might be expected they were immediately dismissed with derision. Headlines in major newspapers editorialized that the suits were without merit and would surely fail. One understands that many people in this country are angry that the news media cannot report the news about Trump without trying to tell everyone what and how to think.

So, we ask whether Trump has a case. And then we can also ask whether certain large companies should have the power to stifle speech that it does not like, most often speech that comes from the right side of the political spectrum. 

In a previous article, reported on this blog, law professors Jed Rubenfeld and Vivek Ramaswamy made the case that, even though the corporations were privately held, if they are acting at the behest or in concert with government authorities, their censorship violates the first amendment. Link here.

Now, this morning Ramaswamy expanded his argument in a Wall Street Journal op-ed. Noting that the complaint offered by Trump’s lawyers was less than stellar, he adds that the arguments clearly deserve a hearing.

The media has panned Donald Trump’s First Amendment lawsuits against Facebook, Twitter and YouTube: “sure to fail,” “as stupid as you’d think,” “ridiculous.” Mr. Trump’s complaint omits important precedents, facts and claims for relief, but there’s a strong case to be made that social-media censorship violates the Constitution. If his lawyers do better in court than in their initial filing, Mr. Trump can win.

He continues to articulate the central claim:

It’s true that the First Amendment ordinarily applies to the government rather than private companies. But the central claim in Mr. Trump’s class-action lawsuit—that the defendants should be treated as state actors and are bound by the First Amendment when they engage in selective political censorship—has precedent to back it up. Their censorship constitutes state action because the government granted them immunity from legal liability, threatened to punish them if they allow disfavored speech, and colluded with them in choosing targets for censorship.

And, as he and his co-author argued previously, corporations that have been granted immunity from liability are effectively exercising state action, especially when they collude with politicians and government agencies in choosing targets for censorship.

It is not a new concept:

The high court has repeatedly held that federal immunity pre-empting state law can transform a private party’s conduct into state action subject to constitutional scrutiny. In Railway Employees’ Department v. Hanson (1956), the justices found state action in union-employer agreements because Congress had passed a statute immunizing such agreements from liability under state law. In Skinner v. Railway Labor Executives Association (1989), the court again found state action in a private company’s conduct because federal laws immunized companies from liability if they tested employees for drugs.

Again, that is the crux of the matter. Those who dismiss Trump’s claims by stating that the companies are private and therefore not subjected to the first amendment will need to counter the precedents that have carved out a zone where private companies are acting on behalf of the state, or even of one political party.

Even if Messrs. Zuckerberg and Dorsey didn’t fear these government threats, the Second Circuit held in Hammerhead Enterprises v. Brezenoff (1983) that if government officials’ comments “can be reasonably interpreted as intimating that some form of punishment or adverse regulatory action will follow the failure to accede to the official’s request,” that’s enough to constitute state action. The Ninth Circuit has held that it doesn’t matter if the threats were the “real motivating force” behind the private party’s conduct.

A growing body of evidence suggests that social media companies have voluntarily worked with Democratic officials to censor content the latter disfavor. In Brentwood Academy v. Tennessee Secondary School Athletic Association (2001), the high court held that state action exists if the private party’s conduct results from “significant encouragement, either overt or covert,” or if the private party is a “willful participant in joint activity with the State or its agents.”

So, the case will ride on the meaning of state action. The author notes that Facebook routinely consults with the CDC to remove content that it considers to be inaccurate. Thus it is censoring on behalf of the government. Of course, the CDC is a government agency, and it does not hold a monopoly on the scientific truth about Covid:

In September 2020 Mr. Zuckerberg acknowledged that Facebook “works with” the Centers for Disease Control and Prevention to remove Covid-related content. The company’s official policy states that it is “advised” by public-health authorities about what Covid content should be blocked. For months, while officials including Anthony Fauci proclaimed that the Wuhan lab-leak theory was “debunked” and a “conspiracy theory,” Facebook blocked any mention of that theory as “misinformation.”

But after Dr. Fauci and the administration retreated from this position, Facebook almost immediately lifted its ban. Recently published email exchanges between Mr. Zuckerberg and Dr. Fauci reveal no evidence of direct instruction from the government on this point but make a case for Facebook’s willful participation in a joint activity with the government.

Thus have social media companies become the government’s censorship bureau:

Social-media companies are privately owned, but when they collude with officials to block disfavored content, they are serving as the government’s censorship bureau and must answer to the First Amendment.

Mr. Trump’s critics are mistaken to think the claims he raises are completely novel. But the case is unprecedented in another way—the staggering scale of Big Tech’s power to restrict speech. No company in U.S. history has so comprehensively silenced elected officials or prevented them from communicating with citizens. Worse, they did so at the behest of, and in careful coordination with, government leaders in the ascendant opposition party as it gained power.

And, for your edification, here are the thoughts of emeritus law professor Alan Dershowitz, a man whose integrity rankles his former friends on the political left.

Dershowitz adds that the big technology companies, in censoring Donald Trump, are exercising prior restraint. As you know, courts have long held that the government does not have the power of prior restraint.

 “Clearly what’s happening here is prior restraint. That is, they’re telling the former president of the United States, ‘we don’t want you on our platforms, no matter what you say, we’re going to restrain you.’ ... I think everybody will acknowledge this is prior restraint. It’s whether or not the prior restraint is subject to the First Amendment or [Trump] himself has a First Amendment right. That’s what’s so complicated about this, that’s why I call this the new censorship. The old censorship involved pure government. McCarthyism. Congress. Today we have these companies that are the new censors.”

So, perhaps the lawsuit is not quite as frivolous as leftist media journalists think that it is. And yet, one notes with some chagrin that these journalists have yet again failed to show the smallest modicum of respect for a past president of the United States.

And you were wondering why certain people are angry.