How Trump Gets the First Amendment Exactly Backwards


February 23, 2018 – Former President Donald Trump speaking at the 2018 Conservative Political Action Conference (CPAC) in National Harbor, Maryland. (Photo by Gage Skidmore | Wikimedia Commons)

February 23, 2018 – Former President Donald Trump speaking at the 2018 Conservative Political Action Conference (CPAC) in National Harbor, Maryland. (Photo by Gage Skidmore | Wikimedia Commons)

The lawsuits Donald Trump filed last week against Facebook, Twitter, and YouTube were multi-purpose. As a successful publicity stunt, they put the former president back in the headlines. They gave the Republican Party and Trump’s own political organization a hook for fundraising. And they riled his base by feeding the myth that the major social media companies have it in for conservatives.


What the suits did not do, however, was muster a plausible legal argument that the tech companies violated Trump’s First Amendment rights when they bounced him from their platforms back in January.


In fact, Trump and the platoon of attorneys who signed his court papers got the First Amendment exactly backward: He has no free speech right to amplify his pronouncements on a private company’s digital venue. The First Amendment forbids only the government from “abridging the freedom of speech.” In contrast, Facebook, Twitter, and YouTube do have a First Amendment right to determine what speech their platforms boost — and that right includes excluding speakers who incite violence, as Trump did in connection with the January 6 insurrection at the U.S. Capitol.


Filed in federal court in Miami as a putative class action on behalf of other supposed digital censorship victims, Trump’s suits are DOA — dead on arrival. They’ll be thrown out by a judge long before they reach trial.


Trump’s legal team seeks to avoid a quick dismissal by arguing that the major social media platforms are so ubiquitous and pervasive that they ought to be considered “state actors” — essentially stand-ins for the government. But that won’t work. The state-actor gambit has failed in numerous other suits filed against the platforms by people upset that they’ve had their content or entire accounts removed.


These issues have been swirling recently in Florida, which enacted a state statute that sought to impose large fines on tech companies that barred politicians in the run-up to elections. But earlier this month, a federal judge in Florida blocked the law, saying it is probably unconstitutional because it “compels providers to host speech that violates their rules.” The platforms said they banned Trump because they feared he would continue to use social media to stoke political violence and possibly try to interfere with the inauguration of Joe Biden as president.   


A federal provision — Section 230 of the Communications Decency Act of 1996 — provides social media platforms with immunity from liability related to their content moderation decisions. Trump’s suits demand that Section 230 be killed as unconstitutional, but that’s not going to happen, either. On the contrary, the federal courts have interpreted Section 230 quite expansively.


Trump’s misunderstanding of the law of free speech has been evident for years. Early in his presidency, he was sued by a group of Twitter users he had blocked from tweeting criticism at his @realDonaldTrump Twitter account. In 2019, a federal appeals court upheld a district judge’s earlier ruling that since Trump conducted official business via his Twitter account, @realDonaldTrump effectively was a public forum — an arm of the government. Therefore, it was unlawful for Trump, the embodiment of the government, to interfere with citizens’ right to question the statements and actions of the then-president.


But Trump has never shown much interest in whether other people can express themselves. It’s his own voice he wants to hear.

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