By: Alexa Sullivan
Former President Donald Trump (“Trump”), has once again demanded the attention of the media by filing multiple lawsuits against the most prominent social media platforms in the industry. Trump is claiming he has been “wrongfully banned” from Twitter Inc. (“Twitter”), Facebook Inc. (“Facebook”), and Alphabet Inc’s Google (“Google”), after the removal of his accounts. The lawsuit also names Google CEO Sundar Pichai, Twitter CEO Jack Dorsey, and Facebook CEO Mark Zuckerberg. Facebook, Google, and Twitter (collectively the “companies”), explained that Trump was removed from their platforms for promoting violence in relation to the Capitol riot that took place on January 6th. Trump is now seeking a class-action lawsuit, claiming the companies infringed upon his First Amendment right to free speech. He has also asked the court to repeal Section 230 of the 1966 Communications Decency Act–which shields social media companies from liability for moderating user content “in good faith”–on the grounds it is unconstitutional.
The controversy first arose when the companies claimed Trump violated their policies by promoting violence connected to the Capitol riot, where radical Trump supporters repeated his unsupported claims that his 2021 presidential election loss was due to fraud. Trump’s accounts were suspended as a result. In filing suit against the companies, he accused them of “impermissible censorship … a misguided reliance upon Section 230 of the Communications Decency Act, and willful participation in joint activity with federal actors.” Trump also argues that Section 230 gives large tech companies “too much legal protection” and prevents them from being held accountable for their conduct. The suits seek to reinstate Trump’s accounts in addition to unspecified damages.
Recently, a federal judge in Florida rejected a state law that targeted select social media companies by imposing large fines for removing posts or banning political candidates. The law promoted the state of Florida “to fine the companies $250,000 a day for removing the accounts of statewide political candidates and $25,000 a day for removing the accounts of those running for local office.” Justice Clarence Thomas (“Thomas”) of the Supreme Court spoke about this issue after the court refused a case concerning whether or not Trump infringed upon the First Amendment by blocking others from his account on Twitter. In his concurrence, Thomas stated, “[…] unprecedented, however, is the concentrated control of so much speech in the hands of a few private parties. We will soon have no choice but to address how our legal doctrines apply to highly concentrated, privately owned information infrastructure such as digital platforms.” It is true that rapid changes in technology have historically been one step ahead of the legal world. Thomas’s statement, that merely a handful of private tech companies are controlling an extensive amount of free speech, has been a growing concern. There is no legal recourse for censorship actions taken by private tech companies, and in light of the few that have such widespread control due to their popularity, legislation may be necessary to counter this type of unconstrained power.
Trump contends that these companies should not be able to evade regulatory measures when it comes to the censorship “of the American people”, but the First Amendment states that “Congress shall make no law … abridging the freedom of speech, or of the press.” The companies being targeted are private actors, not government entities. Therefore, the companies are unable to violate First Amendment censorship rights because there is no constitutional bar for private domains, only government actors. Trump has attempted to connect the pieces by arguing these big internet companies are being used as actors of the state by controlling speech that is targeted at the government, constituting “state action.” His campaign further accuses big social media platforms of being biased against conservative viewpoints. The companies targeted by this lawsuit have taken the stance that as private companies, they are entitled to filter user content that appears on their private platforms to ensure compliance with their company policies and guidelines. Additionally, the companies assert that as private entities, they merely provide information and are not acting as “editorial publishers.” Therefore, as private entities are generally barred from liability for user content posted and added, it would logically follow that they are also not liable for removing user content. The companies actions are not in violation of user rights under current legislation because users have the option to express their views elsewhere, just not on these private platforms if the content defies company policy.
Trump will likely face hardship as the suit progresses, given that the First Amendment prevents censorship of citizens by the U.S. government, not by private companies as he contends. His argument that the companies are abusing their immunity and should therefore have their protections curtailed is legally insufficient, as there is no existing legislation in support of this contention despite growing concerns of censorship in the private domain. In fact, private tech companies’ First Amendment rights to monitor content shared on their private platforms would be violated if laws similar to the Florida state law censoring certain tech companies were to be approved. While private tech companies maintain rights of their own, it is equally important that those users who exercise free speech are afforded certain rights by these social media companies when it comes to the enforcement of their policies so the private sector does not have too broad of control over public discussion. Ultimately, the narrative that laws restricting the rights of social media platforms are an unconstitutional exercise of editorial control continues to prevail. Although it is presumed that Trump’s lawsuit will be unsuccessful, this controversy has brought to light the growing concern that censorship will impede the free flow of ideas in the marketplace if social media platform users are not allowed to liberally express their viewpoints.
Student Bio: Alexa Sullivan is a second-year law student at Suffolk University Law School. She is a staffer on the Journal of High Technology Law. Alexa received a Bachelor of Arts Degree in Biology from Loyola Maryland University.
Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.
