Terry H. Schwadron
July 9, 2021
For years, Donald Trump has threatened to act against the big social media companies.
Now Trump has finally acted, filing lawsuits he describes as class-actions against Facebook, Twitter and Google, as well as their CEOs personally, charging that they unlawfully barred politically “conservative” speech — notably by him.
In so doing, he says he is acting on behalf of kindred spirits shouting about election fraud, promoting the use of bleach and other discredited coronavirus treatments, and finally in support of overthrowing the government on Jan. 6.
Trump, like all users, okayed the small print that no one actually reads about the rights of the Big Tech companies to enforce rules about acceptability, but, in this discussion, actual black-letter assigned rights seem to be of no matter.
Instead, Trump fully expects that the courts will push this to the U.S. Supreme Court where he wants a friendly, conservative-leaning panel to find that his First Amendment rights to have even nutty or potentially dangerous opinions supercedes any responsibility in those same First Amendment rights to uphold general community standards.
While the timing is likely meant to take the spotlight away from criminal charges filed against The Trump Organization, it’s worth paying attention to these lawsuits not because Trump filed them — and certainly not to reinstate Trump as a social media force — but because there actually are some interesting policy questions that remain pending even in a Congress where members from both sides of the aisle complain about the power of Big Tech, but little gets passed.
Adding to the general confusion is a recent Supreme Court decision on behalf of Facebook to say anti-trust laws do not apply to that company’s operations, which makes Trump’s lawsuit seem like it is facing long odds for success.
Politics First, Naturally
In his remarks about the lawsuit, Trump made clear that these lawsuits keep alive his Big Steal motif that will continue to be the center of any and all politicking he does for himself or on behalf of selected, politically malleable acolytes who want to go to Congress.
So, primarily, we should recognize this move as further unfurling a political banner, and teasing his own political availability for his cause, fund-raising, and the presidency. Hey, his sloganeering will probably even last beyond Aug. 13, which The Pillow Guy now pinpoints as the day when Trump will rightfully replace Joe Biden legally in the Oval Office.
The lawsuits also can be seen as a substitute for Congressional inaction. What Congress has failed to do, Trump would say, he himself will address — as he did withimmigration, economics, environmental regulation and other areas that he believes he fundamentally re-calibrated as president.
Lots of people in Congress are upset about various actions by the three companies targeted, plus Amazon and a few others, but no one is quite sure what to do about it.
Legally, the lawsuits require overlooking current law for a finding of greater social purpose, no matter what side of these lawsuits you may find yourself.
As The Post explains, the suits allege that the companies violated Trump’s First Amendment rights in suspending his accounts and argues that Facebook, in particular, no longer should be considered a private company but “a state actor” whose actions are constrained by First Amendment restrictions on government limitations on free speech. Traditionally, the First Amendment is thought to constrain only government actions, not those of private companies.
The lawsuits ask that the courts strike down Section 230, a decades-old Internet law that protects tech companies from lawsuits over content moderation decisions, and seeks unspecified damages. Lots of similar lawsuits have died upon filing.
Just last week, a federal judge cited the Constitution in blocking a Florida social media law from taking effect, The Post reported. The law would have levied fines against the tech companies if they suspended politicians in the run-up to an election.
But this is about Trump, who refuses to go away. “Of course there’s no better evidence that Big Tech is out of control than they banned the sitting president of the United States earlier this year,” he told a news conference. “If they can do it to me they can do it to anyone.”
Everyone is Wrong
The base problem here is that Facebook and Twitter want to see themselves as a neutral utility, like telephones. No one tells callers what they can and cannot say on the telephone, and records or decisions about whose telephone is canceled is a matter of meeting usual business rules, like paying one’s bill.
But under pressure by the government or, in Trump’s case, by those opposed to how he was using his social media accounts to send demonstrably untrue or scientifically invalid messages to millions at once, the social media giants began to look more closely. With pandemic, they felt forced to label or drop messages that were antithetical to medicine or that could spread harm, as in the mention of bleach treatments.
In the case of election fraud complaints, they felt pressured to drop Trump and other users as one court after another found that there was no basis in fact, and, indeed, were being used in the buildup to Jan. 6.
Social media companies want to treat themselves as a club with rules when it is convenient, and as an open marketplace when it comes to using people’s sign-up information for advertising and money-making resales of personal information.
Existing law, in other words, is out of sync with actual daily practices. If Trump could manage to skip the political overtones — which he cannot — he might actually do some good with lawsuits that could clarify rather than seek to punish anyone seeking to criticize him. These lawsuits are not aimed at clarification, but rather a continuation of retribution.