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Trump is using an unusual legal argument in his suits against Facebook, Twitter, and YouTube

·5 min read

Former President Donald Trump launched a Hail Mary pass in three lawsuits on Wednesday that claim Facebook (FB), Twitter (TWTR), and YouTube (GOOG, GOOGL) violated the First Amendment by kicking him and others off their services. But legal experts say the effort won’t fly, largely because the First Amendment protects against censorship by the government and not censorship by private companies.

“The First Amendment bars censorship by the state,” Northwestern University law professor, Andrew Koppelman, told Yahoo Finance. “Media platforms are not the state. They are private companies. Trump’s lawyers know this perfectly well. The lawsuit is a frivolous stunt whose only purpose is to attract attention.”

In the three suits, which seek class action status, Trump claims members of Congress coerced the social media companies to remove his accounts in the wake of a deadly Jan. 6. attack on the U.S. Capitol that he’s accused of inciting. As such, the suits claim, the companies acted as agents of the government and therefore must be bound by free speech rules that govern state actors.

Former President Donald Trump speaks at Trump National Golf Club in Bedminster, N.J., Wednesday, July 7, 2021. (AP Photo/Seth Wenig)
Former President Donald Trump speaks at Trump National Golf Club in Bedminster, N.J., Wednesday, July 7, 2021. (AP Photo/Seth Wenig)

Ultimately, Trump argues, banning his social media accounts impeded his First Amendment right to free speech.

The First Amendment protects social media companies

Generally, the First Amendment guarantee of free speech applies to state and local governments. While governments aren’t allowed to censor speech, with some exceptions, private businesses and individuals can typically muzzle anybody they want to.

Most social media platforms require users to abide by terms of service, something YouTube, Facebook, and Twitter argued Trump failed to do the day of the attack on the Capitol.

“Typically these are going to be difficult lawsuits to win on, especially making a First Amendment argument, because these are private media companies that are not operating as government entities,” Syracuse University professor and director of the Tully Center for Free Speech, Roy Gutterman, told Yahoo Finance.

“Social media companies are not the government, and therefore there's no First Amendment issue at play.”

FILE - In this Jan. 6, 2021, file photo, President Donald Trump speaks during a rally protesting the electoral college certification of Joe Biden as President in Washington. Lurking beneath Facebook’s decision on whether to continue Donald Trump’s suspension from its platform is a far more complex and consequential question: Do the protections carved out for companies when the internet was in its infancy 25 years ago make sense when some of them have become global powerhouses with almost unlimited reach?(AP Photo/Evan Vucci, File)
In this Jan. 6, 2021, file photo, President Donald Trump speaks during a rally protesting the electoral college certification of Joe Biden as President in Washington. (AP Photo/Evan Vucci, File)

Still, the Supreme Court has found exceptions to the rule that private parties can censor speech. In Public Utilities Comm’n v. Pollak the court said that a private radio company, found to have a sufficiently close relationship to the government’s railway service, could allow the court to at least consider whether it violated the First Amendment. (Ultimately, the court found the company did not violate the First Amendment.)

The theory has already been raised by plaintiffs arguing that social media should be designated as government actors. Attorney Peter Ayers points out in Suffolk University Law School’s Journal of High Technology Law that trial courts have so far rejected the claim; however, the Supreme Court has yet to weigh in on the theory.

Eric Goldman, associate dean for research and professor at Santa Clara University School of Law, sees Trump’s lawsuits as infringements on the social media company’s free speech rights, rather than the other way around.

“The lawsuits turn the constitutional argument on its head,” Goldman said, arguing that forcing companies to publish content they don't want to publish takes away the entities’ rights. “They have a First Amendment protected right to decide what's best for their audience. And the lawsuit is designed to strip them of that right. It's the lawsuit that's unconstitutional.”

Section 230 controversy

The suits also argue that Section 230 of the Communications Decency Act, as intended by its drafters, encourages social networks to censor third-party speech. Section 230, seen as a foundational law for the modern internet, allows sites that host third-party content to moderate without having to fear that they’ll be stuck dealing with frivolous lawsuits that would otherwise be thrown out on free speech grounds.

In addition to claiming the tech companies violated the First Amendment, the suits ask the court to declare Section 230 unconstitutional. Section 230 has been a frequent target of both sides of the aisle in Congress. Some Republicans say it allows social media sites to censor their content, while Democrats claim it allows sites to host lies without facing any consequences. Some scholars say that without Section 230, social networks would be more inclined to censor speech hosted on their sites to avoid any potential lawsuits.

Rioters loyal to then-President Donald Trump outside of U.S. Capitol on  Jan. 6, 2021, in Washington. Even as the first of the more than 500 federal Capitol riot defendants have begun to plead guilty, scores of suspects remain unidentified, reflecting the massive scale of the Justice Department's investigation and the grueling work authorities still face to track everyone down. (AP Photo/Jose Luis Magana)
Rioters loyal to then-President Donald Trump outside of U.S. Capitol on Jan. 6, 2021, in Washington. (AP Photo/Jose Luis Magana)

“These are still not government entities, even with Section 230 immunity,” Gutterman said.

Critics claim that Trump may view the suits, however futile, as a fundraising opportunity, given the filings’ close proximity to a message the former president sent to supporters seeking political donations.

Goldman instead said he believes the suits could have a more simple explanation.

“I think the most plausible explanation is purely the ability to stay relevant,” he said. “It's to continue to dominate the headlines.”

The suits are asking for unspecified monetary damages, and for Trump's accounts on all three services to be restored. In January, in response to the attack by mobs of Trump supporters at the U.S. Capitol, Facebook instituted a temporary ban on the president’s account. The move was followed by a company decision in June to implement a two-year ban to be reevaluated in January 2023.

Twitter similarly banned the president from its platform, indefinitely, two days after the Capitol Hill riot. YouTube also suspended Trump's account the following week.

“If they can do it to me they can do it to anyone,” the former president said about his removal from the accounts.

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Alexis Keenan is a legal reporter for Yahoo Finance and former litigation attorney. Follow Alexis Keenan on Twitter @alexiskweed.

Got a tip? Email Daniel Howley at dhowley@yahoofinance.com over via encrypted mail at danielphowley@protonmail.com, and follow him on Twitter at @DanielHowley.