Trump Needs Damning Evidence To Keep Big Tech Suits Alive

Law 360
07/08/2021

Law360 (July 8, 2021, 6:25 PM EDT) -- Former President Donald Trump, in trying another angle to punish Big Tech companies, filed three class actions on Wednesday alleging illegal social media censorship, but attorneys and social media experts say the suits are extremely unlikely to succeed.

The lawsuits claim that Section 230 of the Communications Decency Act is unconstitutional because it authorizes Twitter, Facebook and YouTube to do what the government itself cannot do: "censor" or remove users on the private platforms without fear of legal action. The suits also say the platforms veered into the territory of government actors when they allegedly responded to government pressure to censor or deplatform Trump and his supporters.

However, these claims are difficult to prove, said Matt Schruers, president of the Computer & Communications Industry Association, adding that Trump's legal team will fight to keep them alive as long as possible anyway.

"I think these suits have an exceptionally low chance of going anywhere, but insofar as Trump can fundraise off of them, I think they might keep pushing them forward," Schruers said.

Trump's best shot at prevailing would be to keep the case alive through the discovery phase and hope it turns up damning evidence, said Randolph J. May, president of free market think tank The Free State Foundation.

"Trump could uncover a trove of emails from various congressional officials urging the social media companies to take certain actions which the firms quickly took," May said in a statement. "That would make the case even more interesting, and the claim stronger."

While Trump has tried a number of tactics to curb the influence of online platforms — including pressuring the Federal Communications Commission to weaken Section 230 through a new interpretation — these three lawsuits try to label Big Tech platforms as government actors that are unlawfully suppressing speech.

According to the suits, Twitter, Facebook and Google's YouTube gave into threats from politicians who wanted Trump banned from social media platforms and who had the power to curb websites' Section 230 protections if they weren't satisfied.

The three platforms ultimately booted Trump following the Jan. 6 storming of the U.S. Capitol over concerns that he would incite further riots. These actions amount to "willful participation in joint activity with federal actors," which means that the platforms' "status thus rises beyond that of a private company to that of a state actor," according to the suits.

While private companies can be found liable as government actors in a narrow range of circumstances, there's no evidence that politicians cited in the suit — like President Joe Biden, Vice President Kamala Harris and House Speaker Nancy Pelosi — issued content-related mandates to the platforms, Anderson Kill technology and corporate law partner Preston Byrne said.

He noted that social media companies routinely "work closely with the government to deal with things like foreign threat actors or Russian misinformation or online criminality," but that doesn't mean they're acting as an extension of the government.

Ari Cohn, free speech counsel for TechFreedom, agreed that documented interactions between the government and the platforms do not rise to an unscrupulous level.

"What they claim in the complaint doesn't add up," he said. "It would be a different story if someone from the government contacted Facebook and said 'You need to remove this particular tweet or misinformation — or else.'"

The complaints claim that the platforms weaponized Section 230 — which shields websites from liability for user-posted content and protects their moderation decisions — to suppress controversial views about the COVID-19 pandemic and the 2020 election outcome. For example, the suits allege that the platforms worked with government entities like the Centers for Disease Control and Prevention to silence Trump and his followers who expressed skepticism about pandemic-response efforts like mask mandates.

The Facebook complaint tells a story about a proposed class member, a Michigan elementary school teacher, who got suspended from Facebook after posting a link to an article about masking from the National Institutes of Health's website.

This incident is inconsistent with Trump's argument that Big Tech platforms are carrying out a government plan to censor social media users, as government agencies or leaders often find themselves on the receiving end of negative moderation decisions, Cohn said.

"If [Facebook CEO Mark] Zuckerberg is doing the government's bidding, you wouldn't see that," Cohn said. "They wouldn't have banned the president of the United States, for that matter."

Michael B. de Leeuw, a vice chair of business litigation at Cozen O'Connor, observed that the social media companies would have to clear several bars to wind up in "the very rare circumstances [in which] a private entity is performing a public function."

Trump's legal team would have to prove that they're performing a service that's traditionally or exclusively provided by the government, such as emergency rescue or police services, according to de Leeuw. Otherwise, the former president would have to prove that the government is controlling the platforms and forcing them to take specific actions, he said.

"The main tests are just not met," de Leeuw said.

Although it's extremely unlikely, Justice Clarence Thomas may have recently laid out a narrow path for the lawsuits to proceed. In an April concurring opinion, Justice Thomas suggested that it might be appropriate to begin regulating "highly concentrated, privately owned information infrastructure such as digital platforms."

"There is a fair argument that some digital platforms are sufficiently akin to common carriers or places of accommodation to be regulated in this manner," he wrote.

The notion that Big Tech companies are so large that they should be treated as public infrastructure with common-carrier requirements made a "very subtle appearance" in Trump's lawsuits, said Richard Lawson, a Florida-based partner with Gardner Brewer Martinez-Monfort.

Trump's legal team would have to flesh out "extraordinarily fact-intensive issues" and undertake perhaps years of discovery if they hope to establish that social media companies function as an arm of the government or that they should be regulated as a common carrier, according to Lawson.

"This case is not simple. It will not be easy to prove. That's not to say it can't be proven," he said.

In the meantime, TechFreedom's Cohn suggested that the easiest way to read the lawsuits is as an avenue for Trump to stay relevant as the potency of his claims about election interference fades.

"He needs to find something contemporary to rile people up about," Cohn said.

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