Former president Donald Trump on Wednesday filed class-action lawsuits targeting Facebook, Google and Twitter, escalating his long-running battle with the companies following their suspensions of his accounts.
“We’re demanding an end to the shadowbanning, a stop to the silencing, and a stop to the blacklisting, banishing and canceling that you know so well,” Trump said.
The suits allege that the companies violated Trump’s First Amendment rights in suspending his accounts and argues that Facebook, Twitter and YouTube, which is owned by Google, no longer should be considered private companies but “a state actor” whose actions are constrained by First Amendment restrictions on government limitations on free speech. Traditionally, the First Amendment constrains only government actions, not those of private companies.
The lawsuits also called for the court to strike down Section 230, a decades-old Internet law that protects tech companies from lawsuits over content moderation decisions.
The suits seek unspecified punitive damages.
Eric Goldman, a professor at Santa Clara University Law School in California, said dozens of similar lawsuits have failed in court. He said Trump is “playing a standard media game. It fits into a broader pattern of the former president bringing lawsuits and then not vigorously pursuing them.”
“There’s no way a plaintiff has been able to get traction in the past, and there’s no way that Trump is going to be able to get traction either,” he said.
Paul Barrett, the deputy director of the New York University Stern Center for Business and Human Rights, said the lawsuits were dead on arrival.
“Trump has the First Amendment argument exactly wrong,” he said in a statement. “In fact, Facebook and Twitter themselves have a First Amendment free speech right to determine what speech their platforms project and amplify — and that right includes excluding speakers who incite violence, as Trump did in connection with the January 6 Capitol insurrection.”
Just last week, a federal judge used similar reasoning to block a Florida law that sought to penalize tech companies that suspended politicians in the run-up to an election. The Florida law, District Judge Robert Hinkle wrote, would likely be found unconstitutional because it “compels providers to host speech that violates their standards.”
Legal experts said Trump’s claim that the companies should be considered “state actors” also is unlikely to succeed.
“The fact that they benefit from a federal law does not transform someone into the federal government,” said Brian Fitzpatrick, a professor of law at Vanderbilt University. “All of us benefit from laws at some point or another and that doesn’t transform us into the federal government.”
John Bergmayer, legal director at Public Knowledge, a nonprofit that promotes Internet access, called the argument “crackpot theory” that people try to make from time to time in an effort to make the First Amendment apply to private corporations.
“If that were true, every corporation would be a government actor,” he said. “Every company is chartered by the government. Does that mean that every corporation is therefore a state actor?”
The lawsuits are the latest chapter in Trump’s tumultuous relationship with the social media companies, which helped fuel his political rise and served as critical megaphones during his presidency until both platforms suspended his account, citing incitement of violence, in the aftermath of the Jan. 6 attack on the U.S. Capitol. Since then, Republicans have been escalating their political attacks on the Silicon Valley giants calling the move censorship.
Trump is suspended from Facebook for 2 years and can’t return until ‘risk to public safety is receded’
In the lawsuits, Trump argues that the companies were “working directly with government actors to censor free speech.” He cited as evidence of Facebook’s ties to the government its restrictions on baseless claims of widespread election fraud during the 2020 election and its removal of misinformation about hydroxychloroquine being a cure for covid-19. The lawsuits also said Facebook was intimidated by Democratic lawmakers’ threats to regulate social media amid an onslaught of falsehoods about the pandemic and election.
“That’s complete misinterpretation of how one becomes a state actor,” said Carl Szabo, vice president and general counsel of the tech trade group NetChoice.
Szabo called the lawsuit “a rewrite of history,” noting that Republican lawmakers and Trump himself often threatened to regulate the tech companies. “It just seems like this is an ‘It’s ok if I do it, it’s not ok if other people do it,’” Szabo said.
Jessica Melugin, director of the Center for Technology and Innovation at the libertarian group Competitive Enterprise Institute, called the lawsuit a “publicity stunt” in an emailed statement.
“These social media platforms are private property, not the government town square, and are well within their First Amendment rights to refuse to carry speech of third parties,” she said.
Twitter in January permanently suspended Trump’s account, citing the risk of further violence in the wake of the Jan. 6 attacks on the Capitol. Facebook has suspended the former president for two years, and has said it will only reinstate him if “the risk to public safety has receded.” Trump has had a dramatically lower reach online since. He recently shut down his blog after just 29 days following reports by The Washington Post and other outlets highlighting its underwhelming traffic.
Trump made clear that the lawsuits were retaliation for those moves.
“Of course there’s no better evidence that Big Tech is out of control than they banned the sitting president of the United States earlier this year,” he said at the news conference. “If they can do it to me they can do it to anyone.”
Facebook, Google and Twitter declined to comment. The Computer and Communications Industry Association, which represents the companies, called the suits “frivolous.”
“Digital services have a right to enforce their terms of service,” CCIA president Matt Schruers said in a statement. “Frivolous class action litigation will not change the fact that users — even U.S. Presidents — have to abide by the rules they agreed to.”
But even before those dramatic rebukes, Trump railed against social media companies for allegedly censoring him and other conservatives. In May 2020, he signed an executive order that took aim at Section 230. President Biden revoked that order in May.
He also rallied his online allies at a “Social Media Summit” at the White House two years ago, where he railed against the tech companies for exhibiting “terrible bias” and silencing his supporters. That same year, the Trump administration launched a campaign to collect stories of alleged instances of political bias on social media.
Meanwhile, House Republicans on Wednesday also stepped up their attacks on Big Tech amid a bipartisan push to overhaul U.S. competition laws. Republican members of the House Judiciary Committee released a plan calling for an overhaul of Section 230 and faster court consideration of antitrust cases.
Josh Dawsey contributed to this report.