In July of 2021, Donald Trump held a press conference at his Bedminster, New Jersey, golf club to announce that he was suing Twitter, Facebook, YouTube, and their CEOs for tortiously deplatforming him in violation of his free speech. His theory was that @Jack, Zuck, and Susan Wojcicki were so afraid of the possibility that mean Democrats might cancel Section 230 of the Communications Decency Act that they effectively became state actors. Thus they suppressed Trump and his pals’ First Amendment rights by deleting their accounts.
There are one or two tiny problems with this line of reasoning. First, conservative such as Senators Josh Hawley and Ted Cruz have loudly called to repeal Section 230, which immunizes websites for user-generated content. Second, Trump himself actually vetoed the $740 million National Defense Authorization Act in 2020 because Congress refused to include Section 230 repeal in it. Third, the lawsuit asks the court to declare Section 230 unconstitutional, so threats of repeal by any party would be justified under the plaintiff’s theory of the case.
And, not for nothing, but the supposedly tortious conduct, including Trump’s ouster from Twitter on January 7, 2021, took place when he controlled the entire executive branch and the GOP controlled the Senate. So if the argument is that the tech platforms were coerced by “the government,” that would appear to include the plaintiff himself.
In May of this year, US District Judge James Donato dropkicked the LOLsuit against Twitter, writing:
The amended complaint merely offers a grab-bag of allegations to the effect that some Democratic members of Congress wanted Mr. Trump, and “the views he espoused,” to be banned from Twitter because such “content and views” were “contrary to those legislators’ preferred points of view.” See, e.g., AC ¶¶ 53, 55, 60, 61. But the comments of a handful of elected officials are a far cry from a “rule of decision for which the State is responsible.” Legislators are perfectly free to express opinions without being deemed the official voice of “the State.”
Trump appealed to the Ninth Circuit, after which the YouTube and Facebook cases were stayed pending appellate review.
Last night he docketed his opening brief, and it’s a doozy, even by Trump’s batguano legal standards.
This case presents the most important Free Speech issue of our day: Can government officials use the power of their office to suppress speech they disagree with by threatening, demanding, and colluding with social media platforms to remove ideas from the public square? Because they know that the government itself may not engage in such viewpoint discrimination, these officials accomplish by indirection what the Constitution precludes them from doing directly: They use social media platforms as cat’s paws to suppress opinions and information about matters that Americans consider of vital interest—including those that turn out to be correct or at least debatable, such as that the Hunter Biden laptop was authentic, the COVID virus leaked from a laboratory, COVID vaccines provide weak protection that does not outweigh the risk of vaccine injury, and the 2020 election was stolen.
The 96-page screed begins with 20 pages of ranting about Hunter Biden’s laptop, debunked election fraud theories, and the dangers of the coronavirus vaccine. It likens Trump to Galileo who “spent his remaining days under house arrest for spreading heretical ideas,” Einstein positing the theory of relativity in the face of contemporary critcism, and political dissidents “arrested or killed by despotic governments eager to suppress ideas they disapprove of.”
“Our democracy itself is at stake,” they warn ominously.
The gist appears to be that the plaintiffs have an unlimited right to air misinformation on any company’s megaphone — something not entirely consonant with Trump’s own social media platform, which bans criticism of Trump, among other things. There’s no such thing as objective truth, and thus deleting their accounts for spewing covid misinformation, or, in the case of the lead plaintiff, fomenting an attack on the seat of government based on lies about a stolen election, is protected speech. And indeed, the brief itself is full of some interesting alternative facts.
“Can one imagine President Nixon coercing the press to stop reporting on Watergate?” Trump demands indignantly, seemingly unaware of Nixon Attorney General John Mitchell threatening that Washington Post publisher Katherine Graham would “get her tit caught in a big fat wringer” if the paper printed details of a payment to Committee to Re-Elect the President connecting the White House to the Watergate burglars. Plus there was that whole awkward Pentagon Papers thing.
Similarly, the appellants omit one or two key facts in their argument that Twitter is the public square and simultaneously a puppet of Democratic Representative Adam Schiff.
“Twitter’s more than $44 billion dollars in market value is directly attributable to [Section 230] immunity,” they chirp blithely. Which would at first blush seem an argument in support of a private company’s right to curate its own content. In point of fact, Twitter’s market cap is closer to $41 billion today, after the richest man in the world offered $44 billion on a whim and was forced to consummate the deal despite his strong preference not to. The name Elon Musk appears nowhere in this brief, which is also silent on the shitshow train wreck that defendant platform is descending into, perhaps because this might undercut the argument that the company is a public forum under congressional control.
In short, this is a regurgitation of arguments made below, plus 50 pages insisting that this performative grandstanding does too allege facts sufficient to support a claim that Twitter is actually the government stifling speech. Also they’d like to pretend that Twitter’s choice of law provision in the terms of service doesn’t preclude a claims under Florida’s consumer protection statute and social media law, the latter of which was anyway enjoined by the Eleventh Circuit.
In fact, it is gobbledygook. But, hey, congrats, Judge Kozinski, you Dershed yourself. Hope it was worth it.
Trump v. Twitter [Docket via Court Listener]
Liz Dye lives in Baltimore where she writes about law and politics.