by Matthew Vadum
Former president launches class-action lawsuits on behalf of free speech.
After being banned from most major social media platforms, Donald Trump launched class-action lawsuits against Facebook, Twitter, and YouTube and their corporate leadership this week claiming Big Tech’s intensifying wave of digital repression directed at the former president, conservatives, and Republicans is unconstitutional.
“We’re going to hold big tech very accountable,” Trump said July 7 at the Trump National Golf Club in Bedminster, New Jersey. “If they can do it to me, they can do it to anyone.”
Trump condemned “cancel culture” and called for the end of “shadow banning” and “blacklisting,” and said, “we are asking the court to impose punitive damages on these social media giants.”
“There is no better evidence that big tech is out of control than the fact that they banned the sitting president of the United States earlier this year, a ban that continues to this day,” he added.
The crackdown on patriotic Americans that began with Trump’s surprise victory over Democrat Hillary Clinton, reached a fever pitch six months ago.
After the mostly peaceful sit-in at the United States Capitol on January 6, involving selfie-taking with welcoming police officers, some trespassing by overzealous Trump supporters including one who put his feet up on the desk of House Speaker Nancy Pelosi and a naughty prankster who briefly absconded with her lectern, known Antifa organizer John Earle Sullivan, and possibly the FBI, which Tucker Carlson correctly stated “sometimes … creates crimes,” the leftist enforcers of Silicon Valley leapt into action to save Americans from themselves.
Facebook, Twitter, and Google-owned YouTube banned Trump within days of each other, falsely accusing him of inciting a so-called insurrection, in which interestingly enough, none of the insurrectionists had guns and no one was killed, except for unarmed Air Force veteran Ashli Babbitt who was shot to death by a still-unidentified cop even though she posed a threat to no one.
Trump was executing a coup d’état, our social media overlords shrieked in the absence of evidence, so even though he was the leader of the free world he needed to have his microphone cut.
These are the same people who cheered on the rolling coup attempt against President Trump that then-President Barack Obama and then-Vice President Joe Biden set in motion by authorizing the use of the nation’s intelligence agencies against Trump, along with Hillary Clinton’s phony Russian dossier about Trump.
Trump is serving as lead plaintiff in the class-action suits. Class members are defined in the legal complaints as users of the three platforms “who have resided in the United States between June 1, 2018, and today” and “had their access to their social media accounts wrongly restricted or curtailed by these Defendants and who were damaged thereby.”
“Additionally, the lawsuits take aim at several of Big Tech’s censorship policies including their ‘hate speech’ rules (which the lawsuits describe as ‘vague, broad, ill-defined, or not defined at all’) and COVID-19 ‘misinformation’ rules (which the lawsuits describe as censorship of users who ‘engaged in speech with a different opinion regarding the COVID-19 vaccination’ than the three tech companies),” according to an excellent overview at Reclaim the Net.
Leaders of the America First Policy Institute, which was involved in filing the lawsuits, spelled out how potentially important these legal actions are.
“There’s not much precedent for an American president taking major-media corporations to court — nor is there much precedent for an American president engaging the judiciary to shape the landscape of American freedoms after his presidency,” AFPI president and CEO Brooke L. Rollins said in a statement.
“President Trump often remarked that if Big Tech is out to get him, it’s because they’re out to get the American people — and he was just standing in the way. The actions of the Big Tech firms we’re taking to court illustrate the point perfectly. What they’ve done, what they’ve wrought in the past few years staggers the imagination. ALL Americans need Donald Trump to win — not for what it will mean for him, but for what it will mean for every American man, woman, and child.”
Former Florida Attorney General Pam Bondi, now chairman of AFPI’s Constitutional Litigation Partnership, weighed in.
“Things have changed over the past several years, and the First Amendment rights of all Americans are on the line in this case. The law and Constitution are on our side. America is the great country that it is because our Constitution protects our freedoms, including freedom from censorship - this lawsuit ensures that those rights are properly defended.”
The three legal proceedings were filed July 7 in the Miami division of the U.S. District Court for the Southern District of Florida. The legal complaint against Facebook also names the artificial life form known as CEO Mark Zuckerberg as a defendant. The legal complaint against Twitter also names its nose ring-wearing hipster billionaire CEO Jack Dorsey as a defendant. The legal complaint against YouTube, which is owned by Google, which in turn is owned by Alphabet, names the endlessly uninteresting CEO of both Google and Alphabet, Sundar Pichai, as a defendant.
The three companies are vast and unaccountable and able to shut down the democratic process on a whim.
The legal complaints assert that “censorship runs rampant” against the class members and “the result is a chilling effect cast over our nation’s pressing political, medical, social, and cultural discussions,” according to Reclaim the Net.
“Facebook’s power and influence are immense,” one complaint states. “It currently boasts close to three (3) billion registered Users worldwide and over 124 million Users in the United States. Defendant Facebook had $86.0 billion in total revenue, for a net profit margin of 33.9%, in fiscal year 2020.”
“Twitter is a social media platform with more than three hundred fifty (350) million active Users worldwide, including approximately seventy (70) million daily active Users in the United States,” another complaint states. “Since 2018, approximately 500 million tweets are sent out, or ‘tweeted,’ each day. Twitter reported $3.72 billion in annual profit in 2020.”
“YouTube has accumulated an unprecedented concentration of power, market share, and ability to dictate our nation’s public discourse,” the final complaint states.
“YouTube generated $19.7 billion in revenue in 2020, up from $80 million in 2010. Over 2.3 billion people access YouTube at least once every month,” the complaint continues. “YouTube ranks second in global engagement behind Facebook. YouTube could be worth $140-300 Billion if ‘spun into’ its own company, according to Business of Apps, citing VentureBeat.”
The argument that the companies are too big and powerful may be easy to make, but Trump’s argument that the companies are violating class members’ First Amendment rights is a tough one. The conventional legal thinking holds that as private companies they are not bound by the First Amendment, which restricts government activity, so the companies can do pretty much whatever they want in terms of content moderation and users have no legal recourse.
The lawsuits claim the companies not only ran roughshod over the First Amendment but also that Section 230 of the Communications Decency Act is unconstitutional.
“The lawsuits assert that by ‘acting in concert with federal officials’ to censor speech, ‘the Defendants’ censorship activities amount to state action’ and therefore contravene the First Amendment,” according to the Reclaim the Net analysis.
“Examples of such censorship activities that are cited in the lawsuits include Big Tech’s partnerships with groups such as the Centers for Disease Control and Prevention (CDC) to ‘curb the spread of vaccine misinformation,’” the analysis states.
“The Section 230 count argues that Section 230(c)(1) (which prevents online service providers from being treated as the publisher or speaker of content posted to their platform) and Section 230(c)(2) (which protects online service providers from civil liability when acting in ‘good faith’ to remove or edit content that they or their users deem to be ‘obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected’) are unconstitutional.
“Section 230(c)(1) and 230(c)(2) were deliberately enacted by Congress to induce, encourage, and promote social medial companies to accomplish an objective—the censorship of supposedly ‘objectionable’ but constitutionally protected speech on the Internet—that Congress could not constitutionally accomplish itself,’ the lawsuits state.
“The lawsuits go on to argue that Section 230(c)(1) and (c)(2) are unconstitutional because they ‘immunize social media companies for action they take to censor constitutionally protected speech.’”
Again, it’s an uphill climb in court, but it’s not impossible.
Legal scholar Alan Dershowitz was promptly and widely mocked by the legal Left for the crime of taking the new Trump lawsuits seriously.
Dershowitz was attacked because he said the suits are “very, very important” for the future of free speech in America, arguing that the Big Tech companies receive special treatment from the government and are not ordinary private enterprises.
The social media titans’ behavior is “inconsistent with the spirit of free speech that underlies our First Amendment.” The lawsuits “will shake things up considerably, though I can’t predict in the end how it will come up.”
Trump’s lawsuits, Dershowitz said, are “a complicated case because, as the president pointed out … these are not just ordinary private companies—they have special exemption … and therefore they partake of some kind of government action, and the courts will have to parse this issue.”
No less a figure than Supreme Court Justice Clarence Thomas has said social media companies may have to face a reckoning in the future.
In a concurring opinion in Biden v. Knight First Amendment Institute on April 5, Thomas criticized Section 230 of the Communications Decency Act, saying Twitter’s ban of Trump showed that "applying old doctrines to new digital platforms is rarely straightforward."
"As Twitter made clear, the right to cut off speech lies most powerfully in the hands of private digital platforms. The extent to which that power matters for purposes of the First Amendment and the extent to which that power could lawfully be modified raise interesting and important questions," Thomas wrote.
Facebook and Google, he noted, hold largely unchecked control over online marketplaces.
"It changes nothing that these platforms are not the sole means for distributing speech or information. A person always could choose to avoid the toll bridge or train and instead swim the Charles River or hike the Oregon Trail," Thomas wrote. "But in assessing whether a company exercises substantial market power, what matters is whether the alternatives are comparable. For many of today's digital platforms, nothing is."
Just as a telephone company cannot prevent a person from making a call, social media companies should not be able to stifle speech, the justice implied. Social media companies are "sufficiently akin" to a common carrier, like a public utility, and ought to be "regulated in this manner," Thomas wrote.
That really is the nub of the issue.
Who is going to rule America?
Silicon Valley oligarchs functioning as semi-official arms of the government?
Or We The People?
Americans are going to have to take sides.