LAL #040 — TRUMP v. FACEBOOK, et al.: Right Target, Wrong Tool

Law and Legitimacy

Donald Trump’s suits against Facebook and Twitter are, unfortunately, about as likely to succeed as were his challenges to the 2020 election. In the election cases, his claims appeared to be frivolous.

The social media complaints, however, are far from frivolous, at least in intent. But the legal theories they assert are ridiculous. Facebook and Twitter are private entities. They are not governed by the first amendment. The first amendment’s ban on content-based censorship does not apply to private actors. It really is that simple. So Trump’s legal team decided that they needed to find away to cloak Facebook and Twitter in the garments of state action. The complaint fails to do that, miserably. It will be summarily dismissed, and the dismissal upheld by the federal appellate courts. The issues it raises will not be heard by the United States Supreme Court. Indeed, I doubt many constitutional law professors would give a student submitting such a complaint a grade for anything other that a stilted form of creativity: a C+ might be warranted by a lenient grader. First, the complaint simply asserts that Facebook is a state actor because it buckled under to government pressure in censoring speech. That’s ridiculous. Facebook and Twitter do enjoy the benefits of a legislative grant of immunity for the material they publish as a result of Section 230 of the Communications Decency Act. Congress is considering eliminating the immunity. Facebook and Twitter did respond by censoring folks it deemed to violate its hate speech and violent speech policies. But that doesn’t make Facebook and Twitter state actors. There’s no case that upholds such a theory. Second, the complaint contends that Facebook and Twitter enjoy an unconstitutional delegation of Congressional power. This is plainly illogical. Congress doesn’t have the power to regulate speech; it never delegated that. It did threaten to withhold a benefit, but that is not the same as delegation. Trump missed a better theory.

His team should have argued that Facebook is a constructive public trust. That is, that Facebook enjoys a public benefit in the form of immunity from suit; in exchange it should be required to adopt first amendment norms. This would take a decision of the Supreme Court to uphold, but at least the theory has conceptual integrity. If this is the opening salvo of Trump’s 2024 campaign. I say find another candidate, or, Mr. Trump, find new and more creative lawyers. This suit does not pass the straight-face test.

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