Former President Donald Trump on Wednesday announced a class-action lawsuit against Facebook, Twitter, and Google, “asking the U.S. District Court for the Southern District of Florida to order an immediate halt to social media companies’ illegal, shameful censorship of the American people.”
I know about this lawsuit because I read about it on Facebook and Twitter and saw an excerpt of Trump’s press conference on YouTube. I also read and heard reports about it from “fake media” that Trump says suppresses information from him and fellow conservatives. If these companies were doing such a great job of filtering out information from Trump and his supporters, I wouldn’t even know about his allegations against those very companies.
Numerous legal scholars have said that Trump is extremely unlikely to win in court. The First Amendment applies to government censorship, not private companies’ community standards.
Trump’s lawsuit, which is being supported by the America First Policy Institute, a non-profit formed by Trump supporters and former Trump officials, also alleges that these companies “engaged in impermissible censorship resulting from threatened legislative action, a misguided reliance upon Section 230 of the Communications Act.” But the actual name of the act is the “Communications Decency Act of 1996,” which was mostly thrown out by the U.S. Supreme Court because it would have censored the entire internet to protect children from harmful content. What remains is Section 230, which provides that interactive services are not liable for what their users post but have the right to moderate their platforms including “any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be,” among other things, “excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.”
You’ll find the text of the lawsuit at larrysworld.com/trumpsuit
The suit is predicated on the allegation that these companies have unfairly targeted Trump and other conservatives because of their speech, but any examination of social media will show that there are millions of posts every day from conservatives, including members of Trump’s family. Indeed, Trump himself was allowed to use these platforms during and long before both of his presidential campaigns and was only banned after the events of January 6, when insurrectionists violently attacked the U.S. Capitol in an attempt to overthrow the results of the presidential election after Trump repeatedly posted and retweeted posts that arguably encouraged the violence. Indeed, there were calls for Trump’s removal from social media long before January 6, due to his repeated violation of these platforms’ published community guidelines. In 2017, I had conversations with senior Twitter officials about Trump’s violation of their rules and was told that they were allowing him to stay on the platform because he was president of the United States and what he had to say had news value.
In other words, Trump has not been discriminated against by these companies — he was coddled by these services for years until his words were clearly linked to bloodshed. These social media companies, which have also been accused of unfairly banning left-wing organizations, stress that their actions are not based on ideology but on speech that is clearly banned by their terms of service including hate speech, harassment, bullying, and speech that can lead to or celebrates violence.
And the irony about the linkage to Section 230 is that that provision may be the only reason that these companies took as long as they did to ban Trump from their platforms. Section 230 takes away the stick that would have practically forced these companies to censor any legal content that could possibly get them sued. If it weren’t for 230, Twitter could have been sued by the many people who Trump bullied or defamed on their service. Whether those suits would have been successful is another matter, but they would have been costly and annoying to defend. Trump used Twitter to all but accuse MSNBC’s Joe Scarborough of murder, despite no evidence. If anyone else had done that, they would likely have been immediately banned from the service.
Legitimate concerns and important questions
I’m not suggesting that Section 230 shouldn’t be looked at to make sure it’s not shielding companies from all liabilities. There are some legitimate concerns raised by people from both parties as well as law enforcement and public safety officials. There was overwhelming congressional support for The Stop Enabling Sex Traffickers Act (SESTA) and Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA) which limited the use of 230 in certain situations.
I also think that Trump’s complaints about social media, while based on false allegations, bring up some important questions about the power of big-tech and the need for some type of regulation. Again, I don’t think they are guilty of stifling conservatives, but I do think that these companies have played a role in spreading misinformation and helping to sew the seeds of distrust. While I would be very cautious about any actions that could be used to stifle free speech online, I do wonder whether the government could do more to at least encourage these platforms to better police their members. I say that with great hesitation because there is always the risk of stifling unpopular opinions. I even worry about overzealous enforcement of policies banning anti-vax or anti-mask comments. While I am fully vaccinated and (still) wear a mask indoors when around people with unknown vaccination status, I don’t want to live in a world where people can never question medical authorities.
Figuring out a way to use social media to encourage spirited debates while minimizing toxicity and harm is hard and requires a great deal of thought. Lawsuits like the one that Trump has filed won’t solve the problems, but a national conversation about the role and power of social media is definitely appropriate.
Disclosure: Larry Magid is CEO of ConnectSafely.org, a non-profit internet safety organization that receives support from Facebook, Google, Twitter and other tech companies.