Trump Can Win His Case Against Tech Giants

Source: Wall Street Journal (behind paywall).

This relates to a story I shared the other day concerning the the annual Allen & Company Sun Valley Conference:

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.

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.

The Supreme Court held in Norwood v. Harrison (1973) that the government “may not induce, encourage, or promote private persons to accomplish what it is constitutionally forbidden to accomplish.” As Jed Rubenfeld and I argued in these pages in January, that’s what Congress did by passing Section 230(c)(2) of the 1996 Communications Decency Act, which permits tech companies to censor constitutionally protected speech and immunizes them from state liability if they do so…

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.

Trump’s lawsuits needn’t be based solely on the implications of Section 230 if actual collusion between government and industry can be shown. The CDC’s direct participation in censoring social media posts about Covid-19 would be evidence of that type of collusion. So would Big Tech’s/MSM’s so-called “Summer Camp for Billionaires.”

12 thoughts on “Trump Can Win His Case Against Tech Giants

  1. Funny how the “hands off” our private enterprises is now trying to say that private companies are really just government agents.

    The government requires cars to have airbags. So is GM a government agent?

    Big Pharma can’t sell opioids online to just anyone. Are they government agents because they are following the law?

    FEDEX using USPS as allowed by law to provide final mile service?

    Take away 230 and you can rest assured nothing remotely controversial, political, religious or accusatory will be permitted by social media. That includes the alternative sites that many right wing folks favor.

    Liked by 3 people

    1. What part of the Bill of Rights do GM, Big Pharma or Fedex violate through government collusion? Big Tech clearly violates the First Amendment.

      Like

      1. Clearly violates? Not at all. That is what Trump, et.al., is theorizing, but if it were clear, then no need to go to court other than getting a court order to follow the law.

        And that is not the case here.

        Liked by 2 people

    2. RE: “Take away 230 and you can rest assured nothing remotely controversial, political, religious or accusatory will be permitted by social media.”

      That sounds counterintuitive to me. Section 230 encourages censorsphip, as we have seen in practice. Without it, censorship becomes justiciable.

      Like

      1. No, if censorship is the sole responsibility of the social media company, then anything for which they may be liable will not make it.

        Take away 230 and your theory about agency goes with it. No more First Amendment protection.

        I don’t think we can make a private company a government agent by virtue of protections from law. What happens to the baker who uses freedom of religion to deny service to gays.

        Is the baker a government agent also since his protection from suit is the law of the land?

        Liked by 2 people

        1. RE: “No, if censorship is the sole responsibility of the social media company, then anything for which they may be liable will not make it.”

          Perhaps, but so be it. All other markets work exactly that way.

          RE: “Is the baker a government agent also since his protection from suit is the law of the land?”

          The baker is not protected from suit. There is no Section 230 for bakeries, and if there were we’d want to get rid of it.

          Freedom of speech is a natural (or God-given) right. It is not created by the Constitution or by law.

          Like

          1. “ Freedom of speech is a natural (or God- given) right. It is not created by the Constitution or by law.”

            Actually I was thinking in terms of freedom of religion.

            Rights may be natural, but if the state doesn’t enforce it or ignores it, you might still be prosecuted or persecuted. That is why it is enshrined in the Constitution. That makes it the law of the land.

            In other words the state is now complicit in guaranteeing the baker the right to discriminate on the basis of sexual orientation.

            Doesn’t that make the baker an agent of the government. If his rights to worship are protected, is that any different than the right to run a business as you see fit by virtue of the protections provided by 230.

            The state doles out agency every time you get a license to run a business. Or when it grants a business any kind of protective status.

            So that makes this case a possible re-evaluation of every business here and abroad. Even individuals. The state guarantees your right to own arms. Does that make it complicit in gun violence?

            Liked by 2 people

          2. RE: “Doesn’t that make the baker an agent of the government?”

            No, it doesn’t. The government doesn’t tell the baker how to be religious.

            RE: “The state doles out agency every time you get a license to run a business.”

            No, it doesn’t. In fact, the problem with licensing is that it revokes freedom for the unlicensed.

            You really need to grasp how the Constitution works to protect rights without specifying them. This very concept is why Section 230 is unconstitutional.

            Like

          3. “ The government doesn’t tell the baker how to be religious.”

            That is not the point.

            The baker can defy the law of the land on discrimination because he gets protection by the government through interpretations of the religious freedom clause in the Constitution.

            Liked by 1 person

  2. Interesting closing statement in WSJ opinion:

    “ We cannot allow any single person or group to place themselves in a position where they can censor the material which shall be broadcasted to the public.”

    AM radio has become the de facto voice of conservatives by consolidation and buyouts. So a voice in the marketplace should be broken up according to the Trump suit logic. Collusion between Sinclair and it’s political friends is palpable.

    FOX personalities campaigning for a candidate while either blocking or restricting opposing views on their shows.

    The opinion cited numerous “precedents” many of which had a specious connection, but sounded so academic in rigor to give “authority” to the piece. In my opinion, of course.

    We’ll see how this progresses, but since virtually every lawsuit filed by Trump has been turned down or ruled against, I suspect even SCOTUS will eventually say no.

    Now it may be that Congress scraps 230. There are liberals as well as conservatives that would welcome such.

    All that will accomplish is shift the burden of liability to the carrier. That takes the government out of it completely so few political or controversial posts will escape censorship by a private company.

    Meanwhile, the vacuuming of monies from supporters continues. At least until the next lawsuit they can “help” finance.

    And so it goes.

    Liked by 2 people

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