Don’t Laugh Off Trump’s Lawsuits Against Big Tech; the Supreme Court Door is Propped Open for Him

Photograph by Nathaniel St. Clair

Liberal commentators cackling and falling over each other to mock Trump’s lawsuits against Twitter/Facebook/YouTube for deplatforming him as frivolous, preposterous, DOA, a desperate fundraising appeal, and a publicity crusade may come to learn that the joke is on them. Trump’s lawyers are savvy—and his lawsuits might even do some good (see below). Although they hinge on semi-esoteric theories of First Amendment protection (i.e. that Congress has impermissibly delegated the regulation of speech to private companies, who, through joint state action, have become de facto government censors), the suits are aimed directly at a legal opening flagged by Justice Clarence Thomas in his concurrence in Biden v. Knight First Amendment Institute at Columbia University.

In that decision, the Supreme Court tossed an action by Trump critics blocked from following him on Twitter, but only because Trump’s defeat mooted their case. Before that, both lower federal courts held that Trump’s Twitter account resembled a public forum in which Trump, a government official, could not exclude speakers simply because he disliked their viewpoints.

Justice Thomas echoed this analysis, and added that the tech giants might also be akin to common carriers and public accommodations, whose rights to discriminate and restrict service are limited. Sounding surprisingly liberal, Thomas wrote: “[H]ighly concentrated, privately owned information infrastructure … gives some digital platforms enormous control over speech. … Google is the gatekeeper between [a] user and the speech of others 90% of the time.” Even though the First Amendment does not usually constrain a private company, it can, Thomas opined, “if the government coerces or induces it to take action the government itself would not be permitted to do, such as censor expression of a lawful viewpoint.”

Enter Section 230(c) of the Communications Decency Act of 1996 which, as liberals seem strangely giddy to point out, affords fortress-like immunity to tech behemoths, even to scrub their platforms of “constitutionally protected” material they deem “objectionable.” Needless to say, the owners of our information superhighway do not use their discretion just to muzzle Trump, but to “sanitize” the discourse of millions of smaller users—often opaquely, leaving the censored to comb through webs of hyperlinked policies within policies, or to squeak-roar at monoliths for explanations that never come.

Among myriad examples: Facebook has removed posts by LGBTQ folks for using words like “dyke” and “fag” long since liberated from homophobes; YouTube has reportedly flagged videos for embedded keywords like “transgender,” and demonetized them; Instagram’s skin-scanning algorithms have shadow-banned larger people, often of color, for posting scantily-clad but non-nude images celebrating their bodies, while ignoring comparable posts by thinner users; And Twitter has come under repeated fire for its scattershot policing of hateful and threatening content, and now prohibits reveling in the imagined death of at least one prominent politician (but not others). This author is informed that Facebook prohibits even the discussion of whether the Covid-19 vaccines might cause emotional dysregulation in people with Celiac or other autoimmune illnesses—in a private group. And although the social media Hydra smothered the question of whether the coronavirus could have escaped from a lab in Wuhan when Trump officials were asking it, the debate is now allowed to flourish under Biden’s presidency. As Jonathan Tobin wrote in Newsweek, such hypocrisy by mammoth tech companies “shred their credibility outside of the liberal cocoon and actually bolster that of Trump.”

Section 230 was made by law and can be unmade by law. As Justice Thomas wrote, practically beckoning Trump’s lawyers into the Supreme Court: “[I]mmunity provisions like §230 could potentially violate the First Amendment to the extent those provisions pre-empt state laws that protect speech from private censorship,” and whether tech companies’ “right to cut off speech … could lawfully be modified raise[s] interesting and important questions.”

This is not to suggest that the private moderators of our virtual public squares should be stripped of all gatekeeping power. At one end of the spectrum lies the principle that a free speech marketplace refines ideas into their best form for the greatest good, so the remedy for odious speech is more (not less) speech. But at the other end of the spectrum—well, neo-Nazi recruitment, QAnon conspiracy theories, crackpot Covid misinformation, the big election lie, young people teased or bullied to the point of suicide, WhatsApp used to suborn vigilante killings…and so on.

Regardless where one feels free speech lines should be drawn, drawing them sheerly based on tribal or team loyalty will only usher courts into the fray. Shrug of Trump’s lawsuits if you want to, but Justice Thomas has signaled that the Supreme Court is poised to consider the issues he has raised.

Ben Rosenfeld is a civil rights attorney in San Francisco. Twitter: @benrosenfeldlaw.