OPINION: Is Trump’s Big Tech Lawsuit A ‘Dead On Arrival’ Media Stunt?

On Wednesday, former President Donald Trump filed class-action lawsuits against Facebook, Google, and Twitter — and their respective CEOs, Mark Zuckerberg, Sundar Pichai, and Jack Dorsey — over the “censorship” of conservatives.

Speaking at a news conference, Trump said the lawsuits would demand that the court prevent ongoing censorship. 

“We’re demanding an end to the shadow-banning, a stop to the silencing, and a stop to the blacklisting, banishing, and canceling that you know so well,” Trump said, calling the lawsuits “a very important game-changer for our country.”

The lawsuits, filed in the Southern District of Florida, argue that Big Tech giants violated Trump’s First Amendment rights when they suspended his social media accounts. In addition, they claim that many such platforms should be considered as “state actors” who should be limited by “First Amendment restrictions on government limitations on free speech.” Finally, the lawsuits look to strike down Section 230 of the Communications Decency Act, as well as seeking “unspecified punitive damages.”

There’s just one problem: this is going absolutely nowhere.

First, courts have repeatedly rejected the claim that social media “censorship” — of any form — violates the First Amendment. The basic reason for this is that Big Tech giants are private entities and not government actors:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Because of this important detail, Trump’s lawsuit makes the claim that Facebook and other companies are “state actors.” 

“Defendant Facebook has increasingly engaged in impermissible censorship resulting from threatened legislative action, a misguided reliance upon Section 230 of the Communications Act … and willful participation in joint activity with federal actors,” the lawsuit states. “Defendant Facebook’s status thus rises beyond that of a private company to that of a state actor. As such, Defendant is constrained by the First Amendment right to free speech in the censorship decisions it makes regarding its Users.”

This is simply illogical. Even if the accusation — that Facebook “has increasingly engaged in impermissible censorship resulting from threatened legislative action” and willfully participated “in joint activity with federal actors” — is assumed to be true, it has nothing to do with the subsequent conclusion that Facebook is a “state actor.”

According to United States constitutional law, a “state actor” is a person or entity acting on behalf of a governmental body. Even if the preceding accusation leveled against Facebook is true, “joint activity” is not synonymous with “acting on behalf” of a government.

The lawsuits claim that these companies became state actors both because of their powerful status as platforms of communication and because Congress has pushed for forms of censorship. There is no legal precedent for the use of such “legislative coercion” as a justification to sue these companies.

Second, the attempt to strike down Section 230 as unconstitutional is somewhat bizarre given that Trump — incorrectly — justified the lawsuits against Big Tech by referring to Section 230, claiming that “once they got Section 230 they’re not private companies.”

In reality, Section 230 has nothing to do with whether or not a company is “private.”

The legislation was passed into law as part of the Communications Decency Act of 1996 and regulates Internet content. Specifically, it was drafted to regulate online pornography by providing website publishers with immunity from prosecution over third-party content placed on their sites.

As The Daily Wire explained in January, Section 230 is reasonably concise and contains several key elements.

Section 230(b) includes three relevant passages regarding the policy of the United States, namely,

(1) “to promote the continued development of the Internet and other interactive computer services and other interactive media,”

(2) “to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation,” and

(3) “to encourage the development of technologies which maximize user control over what information is received by individuals, families, and schools who use the Internet and other interactive computer services.”

Section 230(c) provides “protection for ‘Good Samaritan’ blocking and screening of offensive material” and remains the focus of critics and supporters alike. It reads as follows:

(1) Treatment of publisher or speaker

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

(2) Civil liability

No provider or user of an interactive computer service shall be held liable on account of –

(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or

(B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).

While there is a valid ongoing debate regarding elements of Section 230 — such as the “good faith” factor — and whether it should be updated or removed entirely, the notion that Section 230 is “unconstitutional” is over-simplistic and likely to fail. 

Not only that, the argument that Section 230 is invalidated by the scale of these companies — with the suit arguing that Section 230 “has accomplished and exceeded its original purpose in terms of promoting the growth and development of social media platforms” — ignores that the intent behind Section 230 — to protect against liability for third-party content on platforms — is crucial to the internet’s very existence in a legal sense.

In simple terms, without Section 230, third-party content on any website will cease to exist — regardless of the size of the website or the underlying company.

While legal arguments will certainly be made in support of Trump’s legal efforts, most experts agree that this attempt will likely fail.

“There’s no way a plaintiff has been able to get traction in the past, and there’s no way that Trump is going to be able to get traction either,” said Eric Goldman, a professor at Santa Clara University Law School in California.

“Trump has the First Amendment argument exactly wrong,” Paul Barret, the deputy director of the New York University Stern Center for Business and Human Rights said. “In fact, Facebook and Twitter themselves have a First Amendment free speech right to determine what speech their platforms project and amplify.”

This isn’t to say that Big Tech giants were correct to censor or suspend Trump from their platforms. Their actions were demonstrably absurd and arguably dangerous. However, those who care about this debate must demand that their representatives in the legislative and judicial sphere take this issue seriously.

If this legal move is anything to go by, this appears to be more of a media stunt than a serious effort to move the needle in the direction of online liberty.

Ian Haworth is an Editor and Writer for The Daily Wire. Follow him on Twitter at @ighaworth.

The views expressed in this piece are the author’s own and do not necessarily represent those of The Daily Wire.

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