By Frank LoMonte
From condo salesman to reality TV host to leader of the free world, Donald Trump has occupied several lifetimes’ worth of identities over a remarkable career of reinventions. Even so, the billionaire mogul’s latest metamorphosis – into a consumer-rights plaintiff seeking to regulate big business – is a peculiar one.
With a volley of lawsuits against the operators of Facebook, Twitter and YouTube, former President Trump is asking the courts to do what tycoon Trump once would have denounced: tell some of America’s most powerful corporations that they have no choice who they do business with.
As a First Amendment and media law scholar, I believe the former president knows he can’t win in court. Here’s why – and why even his most ardent supporters don’t really want him to.
Content moderation rules
After the Jan. 6 attack on the U.S. Capitol by rioters bent on preventing Congress from certifying President Biden’s electoral win, all of the major social platforms – Facebook, Twitter and YouTube – pulled the plug on Trump’s accounts. The companies cited internal rules about misuse of their platforms to spread misinformation and incite violence.
Trump’s lawsuit barrage seeks not just to overturn his own bans but to invalidate a 1996 federal statute, Section 230 of the Communications Decency Act, that entitles website operators to choose who and what appears on their pages without fear of liability. His attorneys are arguing – creatively, but I believe without much legal foundation – that the Communications Decency Act is unconstitutional in that Congress has given platforms too much speech-policing power.
Section 230 has been called the law that “created the internet,” as it enables anyone who operates or uses a website – not, as Trump claims, only social media behemoths – to disavow responsibility for what outsiders come onto the site and say.
The law does enable YouTube to deactivate videos, or entire accounts, without assuming “ownership” of anything libelous that remains viewable. But it also allows the proprietor of a small-town news site to entertain reader comments without being considered the “publisher” of – and thus liable for – every scurrilous statement that ends up in the comments section.
Social networks have enforced their “content moderation” rules spottily and without much transparency. That’s a bad business practice, and it’s arguably unfair. But the Constitution doesn’t offer a remedy for all of life’s adversities. It certainly doesn’t offer one for Donald Trump here.
Social media isn’t government
Court after court has rejected the argument that because social networks are widely considered – in the Supreme Court’s words – “the modern public square,” speakers are entitled to demand access to their platforms just as they are entitled to use a physical public square. That’s not how the First Amendment works.
The protections of the First Amendment are triggered when a public agency exercises governmental power to restrict people’s speech – what is known as “state action.” On rare occasions, private organizations can be considered “governmental” – for instance, when a private hospital or university is given police power to make arrests on its premises.
But operating a video-sharing platform is not a “governmental” function – and judges have said so, unanimously.
Conservatives, including Trump, cannot possibly want private businesses to be governed by the same constitutional standards that apply to cities and counties. If courts started applying the Bill of Rights to Walmart or McDonald’s just because they are large and powerful entities that control a lot of property, those establishments would be forced to welcome even the most disagreeable speakers – let’s say, a diner wearing a “F*** Trump” T-shirt – no matter how many offended customers complain.
Upending conservative gospel
For decades, conservatives have fought – quite hard and quite successfully in court – to establish that corporations have First Amendment rights equivalent to those of living, breathing people. That includes the corporations operating social media channels.
In a recent essay about democracy in the social media age, I explain how the Communications Decency Act has evolved into the near-impenetrable liability shield that it is today.
In the essay, I describe how the proprietor of a hotel or tavern isn’t liable for harm caused by customers visiting the establishment – unless the customer has a known history of dangerousness that the proprietor chooses to ignore. That might offer a split-the-difference path for addressing the worst trolling behavior on social media by repeat bad actors – but, to be clear, it’s not the law today.
Today, the law unmistakably entitles the Twitters of the world to do just about anything with their customers’ posts: take them down, leave them up, add warnings or modifiers. If users are aggrieved by the way they’re treated, they can do exactly what they’d do in the offline world: Take their business somewhere else.
The Supreme Court already decisively dealt with this issue a half-century ago, when newspapers and television stations held power over political discourse comparable to that of Facebook and Twitter today. In the case, Miami Herald Publishing Co. v. Tornillo, the justices rejected a state legislative candidate’s insistence that he was entitled to space in the local newspaper to respond to criticism in two editorial columns.
While the justices acknowledged that a big-city newspaper might have a near-monopoly over information about local elections – sound familiar? – they agreed that the First Amendment would not tolerate commandeering the presses of a private publisher in the interest of government-enforced “fairness.”
A federal judge in Florida, relying on the Tornillo case, just ordered the state not to enforce a newly enacted “anti-deplatforming” law enabling any Florida political candidate whose social media posts are hidden, modified or deactivated to sue the platform. The judge concluded that the law violates the First Amendment rights of the platforms by (for example) compelling platforms to let candidates post anything they want, without moderation. “Balancing the exchange of ideas among private speakers,” the judge wrote, “is not a legitimate governmental interest.”
No one involved with this case could be serious about winning in federal court. But that is not the “court” to which the former president is playing.
Tilting at Silicon Valley appeals directly to Trump’s populist followers, many of whom probably suspect that their own clever tweets failed to go viral only because the system is rigged against them.
But even if, as experts suggest, Trump’s case is destined to fail, dismissal would be yet another headline and fundraising hook, along the lines of, “You knew those socialist judges were in Hillary’s pocket.” And even if Trump were ordered to pay Twitter CEO Jack Dorsey and Facebook CEO Mark Zuckerberg’s attorney fees, they’d have to queue up behind decades’ worth of unpaid Trump creditors.
As Trump would tweet, if given the chance: “So much winning!”
Frank LoMonte is the Director of the Brechner Center for Freedom of Information at the University of Florida.
The Conversation arose out of deep-seated concerns for the fading quality of our public discourse and recognition of the vital role that academic experts could play in the public arena. Information has always been essential to democracy. It’s a societal good, like clean water. But many now find it difficult to put their trust in the media and experts who have spent years researching a topic. Instead, they listen to those who have the loudest voices. Those uninformed views are amplified by social media networks that reward those who spark outrage instead of insight or thoughtful discussion. The Conversation U.S. seeks to be part of the solution to this problem, to raise up the voices of true experts and to make their knowledge available to everyone. Conversation essays publish at 9 p.m. nightly on FlaglerLive.
Wanna bet? That’s like saying I can’t beat those social media sites in court for censorship. 😂
Ray W. says
I await the release of the amount of money Trump’s son’s raised for him on his birthday. Last year, it was $14 million on that date alone, though the birthday pitch began three days earlier. Over that four day period, reportedly, $40 million. And Trump supporters think that election fraud involves Democrats. They are allowed to wander through life fooling themselves. There are 40 million reasons for Trump to claim election fraud.
It’s a joke. The Donald initiates a lawsuit against the Social Media platforms who have grown tired of his rhetoric and his inner circle are sending out solicitations for his defense fund. He received hundreds of millions of dollars the last time he perpetrated this scam. BTW..most legal scholars have indicated that his case has no chance; a fact, I am sure he has been told.
The issue that’s not discussed is how the government and these private corporations are working together. Democratic Senator Blumenthal and many other Democrats in high places have worked together behind the scenes to use these platforms to stifle conservative speech and promote biased content. This directly effected the 2020 Election. Think I’m lying? They admitted it. Read this Times piece: https://time.com/5936036/secret-2020-election-campaign/ THE SECRET HISTORY OF THE SHADOW CAMPAIGN THAT SAVED THE 2020 ELECTION.
I agree with author that Trump will not win. However, something must be done to prevent these huge corporations from manipulating our elections.
From the cited article: “That’s why the participants want the secret history of the 2020 election told, even though it sounds like a paranoid fever dream–a well-funded cabal of powerful people, ranging across industries and ideologies, working together behind the scenes to influence perceptions, change rules and laws, steer media coverage and control the flow of information. They were not rigging the election; they were fortifying it. And they believe the public needs to understand the system’s fragility in order to ensure that democracy in America endures.”
And your point is?
Donald Trump sues everyone that disagree’s with him. Next he will be suing his own family if he feels they aren’t on his parade of lies.
I can’t believe he can still can get any attorney to take his greivancy cases since he doesn’t pay any attorneys, just ask Rudy.
The Reality Show continues, it has gotten real old and can’t wait for the final act.
The dude says
And that’s just where we’re at these days…
The grifter continues to grift, as the dullards, cultists, and rubes scream “TAKE MY MONEY… PLEASE!!!”
I’m not sure how we got here, but it’s not a good place to be.