WASHINGTON — Former president Donald Trump’s latest attempt at getting back on mainstream social media platforms came in the form of lawsuits on Wednesday against Twitter, Facebook, and YouTube — each featuring a series of claims that multiple courts, including the US Supreme Court, have rebuffed.
Trump was suspended from Facebook and Twitter in the immediate aftermath of the Jan. 6 riots at the US Capitol and blocked from YouTube a few days later; all three companies cited posts that encouraged or supported the violence. He’d previously had messages that promoted baseless claims of voter fraud flagged as misleading or in violation of platform rules. He remains banned from posting on all three sites for now.
On Wednesday, Trump filed lawsuits against each company, joined by co-plaintiffs who claimed they were also banned from posting or had their content — largely posts about the coronavirus pandemic, vaccines, and mask-wearing rules — demonetized, removed, or flagged as misleading. Each case raises the same two core claims: that the social media giants were operating as a “state actor” and had violated the First Amendment when they restricted certain speech, and that the federal law that immunizes these companies against being sued for how they moderate content, Section 230 of the Communications Decency Act, was itself unconstitutional.
Trump isn’t the first person to try to apply the First Amendment — which deals with government regulation of speech — to a private company or even the first conservative to go after these specific social media companies. But similar efforts have failed to gain traction in court. Caitlin Vogus, deputy director of the Free Expression Project at the Center for Democracy & Technology, said she wasn’t aware of any court that had found the First Amendment applied to the editorial judgments of private companies.
“The lawsuits are claiming that the former president’s First Amendment rights were violated by the decision to suspend his account, when in fact that is exactly backwards,” Vogus said. “The First Amendment strongly protects the decision by these companies to make content moderation decisions.”
Public versus private
The US Supreme Court and federal appeals and district courts have repeatedly rejected efforts to classify social media platforms as state actors whose decisions to restrict speech would fall under the First Amendment. Trump’s lawsuits refer to Twitter, Facebook, and YouTube each as a “public forum,” and one of his main arguments is that the efforts to restrict participation in those spaces violate the First Amendment.
The Supreme Court rejected a similar argument in 2019. In an opinion by Justice Brett Kavanaugh — one of Trump’s nominees — the court found that the First Amendment didn’t apply to the operator of public access channels that had suspended producers over content. Kavanaugh wrote that opening up a media platform to the public did not transform a private company into a state actor. He cited a line of cases upholding the right of private entities that function as spaces for public speech to “exercise editorial discretion” and warned that trying to apply the First Amendment would run up against the constitutional protections that private property owners enjoy.
In the two years since the 2019 decision in Manhattan Community Access Corp. v. Halleck came down, lower courts have applied its reasoning specifically to reject First Amendment claims filed by conservatives against social media platforms. Those included a February 2020 decision from the US Court of Appeals for the 9th Circuit rejecting claims by Prager University, a conservative content company, against YouTube and a May 2020 decision from the DC Circuit tossing claims brought by far-right activist Laura Loomer against Twitter and Facebook.
Less than a week ago, a federal district judge in Tallahassee blocked a Florida law that had strong support from Republicans that would have allowed the state to fine social media platforms that removed candidates leading up to an election. In the opinion, the judge noted that although it wasn’t always “settled” how the First Amendment should apply to social media companies, one thing that was clear was that these platforms weren’t violating the First Amendment when they moderated content — and he cited the Supreme Court’s decision in Halleck.
“The State has asserted it is on the side of the First Amendment; the plaintiffs are not. It is perhaps a nice sound bite. But the assertion is wholly at odds with accepted constitutional principles,” US District Judge Robert Hinkle wrote.
Some academics have argued that Halleck didn’t grapple with whether Section 230 — the law that provides immunity for companies against claims for restricting speech that would normally be covered by the First Amendment — could turn a private social media company into a state actor. Justice Clarence Thomas has written about his interest in exploring whether social media companies should be entitled to the level of the immunity they currently receive and specifically expressed concern about Twitter’s ability to ban a sitting president; no other justice joined his statements.
Federal cooperation and coercion
Besides the “public forum” claim, Trump’s lawsuits allege that the social media companies are state actors in part because they acted in coordination with federal officials. The suits state that those federal actors included the Centers for Disease Control and Prevention and President Joe Biden’s postelection transition team.
He’s also claiming, without evidence, that the companies were coerced by Democrats in Congress who threatened to strip them of Section 230 immunity if they didn’t restrict conservative speech and that Section 230 itself represents a government endorsement of unconstitutional censorship. (Trump repeatedly called to repeal Section 230 while president and signed an executive order — which Biden has rescinded — with the goal of chipping away at the law’s protections.)
Trump was banned from Twitter, Facebook, and YouTube while he was still president, which means the CDC was acting as part of his administration, and Biden’s transition team had no authority at that point. The cases try to stretch out the timeline by arguing the decisions to deplatform Trump have remained in effect since he left office and that other users have been suspended or banned since the new administration came in.
Other courts have also rejected versions of these types of claims about Section 230. Two weeks ago, a federal district judge in San Francisco dismissed a lawsuit against Facebook filed by Children’s Health Defense, a group that posted content critical of vaccines, which the social network flagged as “false” or unreliable, according to the opinion. The lawsuit featured some of the same theories as Trump’s latest cases — that Facebook was a federal actor whose content moderation fell under the First Amendment.
Similar to the Trump cases, CHD argued that Facebook was acting in coordination with the CDC to regulate posts about vaccines and COVID-19 and that the company was censoring speech because of threats from Democratic lawmakers to strip companies of their immunity under Section 230. CHD also argued that the immunity provided by Congress via Section 230 had turned Facebook into a state actor.
The June 29 opinion from US District Judge Susan Illston rejected all of those arguments. She found that CHD failed to show that the CDC or members of Congress had dictated specific content moderation decisions to the point that Facebook became a federal actor. The judge noted that this wasn’t the only case where a plaintiff had tried to argue that Section 230 turned private companies into state actors, or that threats from lawmakers to roll back Section 230 had coerced social media companies into restricting speech, and those claims previously had failed.
Other potential pitfalls
Beyond the merits of the claims Trump is raising, the structure of his lawsuits presents a few other possible hurdles from the start. He has presented these cases as class actions, but calling a lawsuit a class action doesn’t make it one. Whether or not a class is certified — a step that vastly expands the reach of the claims and the amount of money damages at stake — is up to the judge.
There’s a laundry list of factors that plaintiffs have to satisfy to convince a judge to certify a class. Trump has defined the proposed classes in his lawsuits as all US-based members of the platforms he’s suing who “had their access to their social media accounts wrongly restricted or curtailed” from June 1, 2018, through the present. In each case, Trump’s legal team estimates there will be “well over” 1 million members. One factor that courts consider is whether there’s an objective way to decide who is in a class and who isn’t.
Trump’s cases don’t include a definition for what it means to be “wrongly” kicked off of a social media platform. His lawsuits state that the class would cover anyone whose use of their social media accounts was “curtailed” or “limited” by Facebook, Twitter, or YouTube because of speech that the companies “disliked or contrary to Defendants’ opinions or beliefs” — language that could be open to wide interpretation.
Trump filed all three lawsuits in the US District Court for the Southern District of Florida; Mar-a-Lago, which became his full-time residence after he left the White House, is in Palm Beach. His lawyers contend that YouTube, Facebook, and Twitter all do business in Florida and that a “substantial part of the events” at issue in these cases took place in Florida. Trump was president when he was banned from the platforms, which meant he was still residing at the White House in Washington, but his lawyers are arguing the claims apply to the ongoing “restraint” of his speech.
Each company has terms of service that dictate where any claims must be filed, however — and none of them list the Southern District of Florida, a fact noted by Reuters reporter Brad Heath. In order to use these platforms, Trump had to accept the companies’ terms, which require that disputes be litigated in certain courts in California. It’s not a deal breaker — judges can order cases moved to another district if they conclude a litigant filed in the wrong court — but it’s a potential hiccup.
Vogus noted that the federal appeals courts that cover California and Florida — the 9th Circuit and the 11th Circuit, respectively — have different precedents about when defendants in First Amendment cases in federal court can try to get claims thrown out under what are known as anti-SLAPP laws. These state laws generally bar lawsuits that are frivolous and aimed at chilling someone’s exercise of their free speech rights. Twitter and Facebook have invoked anti-SLAPP laws to try to get claims tossed out that challenged content moderation decisions, and they have had varying success; it’s how Twitter in 2018 defeated a lawsuit filed by conservative activist Chuck Johnson after he was suspended for a tweet threatening civil rights activist DeRay Mckesson.
Federal circuit courts have split on whether these laws can apply to cases in federal court. The 9th Circuit has held that they can, while the 11th Circuit has held that they cannot — a key difference that could open up another legal avenue for Twitter, Facebook, and YouTube if Trump’s cases end up moving west.