(CN) — “Frivolous.” “Doomed.” “Dead on arrival.”
These are the ways experts have described the putative class-action lawsuits filed by former President Donald Trump against tech giants Facebook, Twitter and YouTube. He has accused the companies, as well as their CEOs, of violating his First Amendment rights by kicking him off their platforms.
Citing concerns that Trump would foment further violence after the Jan. 6 attack on the U.S. Capitol, YouTube and Twitter indefinitely suspended him. The former president’s Facebook account will be eligible for reinstatement in January 2023, pending an assessment into “whether the risk to public safety has receded.”
Trump has framed his lawsuits as an attempt to defend the rights and “sacred liberties of the American people.”
“If they can do it to me, they can do it to you – and believe me, they are,” he wrote in a Wall Street Journal op-ed published one day after the complaints were filed in Florida federal court.
The former president filed a motion for a preliminary injunction in the case against YouTube on Monday demanding the reinstatement of his account. Although his attorneys reportedly intend to file similar injunctions in the cases against Twitter and Facebook, no motions to that effect have been filed as of Friday.
While the litigation might succeed in stirring up Trump's political base, experts say there’s little legal substance to back up all the bluster.
Clay Calvert, a professor of law at the University of Florida and director of the Marion B. Brechner First Amendment Project, has said the complaints were “dead on arrival” when they were filed.
“The reason for that is pretty basic. The First Amendment protects us from government censorship, not censorship by private entities or organizations, including Twitter, YouTube, and Facebook,” Calvert said in an interview.
Courts have held that the First Amendment does not apply to private activities and protects the right of websites to exercise editorial judgment. In fact, decisions by social media companies to remove content or ban users are an exercise of their own First Amendment rights.
“The reality is that mandating that social media platforms host individuals even when those individuals or candidates for office do not follow their terms of service – that’s actually intruding on the First Amendment editorial judgment and control of those platforms to make decisions about the nature of the content that they host or don’t host,” Calvert said.
Trump’s attorneys are trying to get around that by claiming the companies rose to the status of government entities when they allegedly cooperated with “coercive measures” by congressional legislators to censor him. The former president has argued that Big Tech bent under pressure by Democratic lawmakers who threatened to revoke protections granted to social media platforms under Section 230 of the Communications Decency Act.
Section 230 allows companies to engage in “good faith” efforts to remove posts from their platforms that are obscene or violate their terms of service and generally exempts companies from legal liability for the posts users make.
Notably, Trump himself attempted to limit the provision while in office by issuing an executive order which would have allowed federal authorities to hold social media companies responsible if they were found to be engaging in “deceptive or pretextual actions… to stifle viewpoints with which they disagree.” President Joe Biden rescinded the order in May.
The class actions allege that Facebook, Twitter, and YouTube acted in concert with federal officials to censor the plaintiffs – Trump and a handful of other social media users – under the guise of rooting out misinformation related to the Covid-19 pandemic and the integrity of the November 2020 presidential election.
“Defendants’ censorship activities resulting from their willful participation with government actors, as well as responding to congressional coercion, amounts to state action by defendants,” the complaint against Facebook states.
The plaintiffs have filed notices with the court of their intent to argue that Section 230 is unconstitutional. The government has not yet announced whether it intends to intervene in the cases regarding the constitutional question.
Constitutional law expert Erwin Chemerinsky, dean of the University of California, Berkeley School of Law says there is no merit to the argument that communication between social media companies and Democratic politicians transforms the companies into state actors.
“The Supreme Court has been very restrictive as to when private entities must comply with the Constitution. Even 99% government funding is not enough. Communication is surely not enough,” Chemerinsky said. “Under Supreme Court decisions, like Blum v. Yaretsky, government pressure is not enough to require that a private entity comply with the Constitution.”
Trump’s own handpicked Supreme Court Justice Brett Kavanaugh directly addressed the issue in a 2019 opinion, writing that “merely hosting speech by others is not a traditional, exclusive public function and does not alone transform private entities into state actors subject to First Amendment constraints.”
Calvert called Trump's argument “incredibly flimsy.”
“The mere fact that Democratic lawmakers talked to the heads of these businesses and social media platforms does not somehow transform them into state actors,” Calvert said. “It would basically take a miracle for Trump to prevail in these cases on the state action argument. And without state action there is no First Amendment claim.”
Calvert explained that the government has not taken either of two actions which might make the platforms state actors under the law: no governmental authority has been delegated to the companies and they have not taken on any function that has “exclusively or traditionally” been performed by the government.
A similar argument against YouTube failed last year when the Ninth Circuit rejected Prager University’s claims that the video-sharing site illegally censors its content.
Determining that YouTube is not required to abide by the First Amendment’s free speech clause, U.S. Circuit Judge M. Margaret McKeown wrote, “The relevant function performed by YouTube – hosting speech on a private platform – is hardly ‘an activity that only governmental entities have traditionally performed.'”
Calvert says he believes Trump’s attorneys know the odds are stacked against them.
“They’re trying to make some inventive arguments, let’s put it that way… but those arguments are doomed to fail,” he said.
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