The Washington PostDemocracy Dies in Darkness

Trump’s social media lawsuit isn’t about the law. It’s about politics.

Taking on Big Tech ‘censorship’ can be a winning argument even if it loses in court.

Former president Donald Trump holds a news conference at the Trump National Golf Club in Bedminster, N.J., to announce lawsuits against Facebook, Google and Twitter, and their chief executives. (Jabin Botsford/The Washington Post)
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From a legal standpoint, the lawsuits former president Donald Trump filed Wednesday against Facebook, Twitter and Google border on incoherent. As a political and financial maneuver, however, they make a lot more sense.

The complaints by Trump, which also target the companies’ chief executives, allege that they violated his First Amendment rights by suspending him from their platforms after the Jan. 6 attack on the U.S. Capitol. He’s seeking class-action status for the suits, encouraging others to join as plaintiffs if they feel their speech has been suppressed. One small problem: The First Amendment protects people from censorship by the U.S. government, not from content moderation decisions by private companies, no matter how large or influential. Courts have consistently thrown out cases similar to Trump’s in the past, according to a forthcoming report on research by Santa Clara University law professor Eric Goldman.

Yet even a bad lawsuit can make for a good talking point. In taking legal action, Trump is refreshing a narrative that has served him and other conservatives well for years: that the big social media platforms are biased against them. While evidence for the claim is hard to come by — some metrics suggest that conservative outlets actually find a larger audience on Facebook than liberal outlets do — it plays to the fear among many on the right that they no longer can speak freely. And it has helped to fuel a long-running Republican pressure campaign that seeks to deter social media platforms from enforcing policies on misinformation, hate speech and incitement to violence, policies of which Trump eventually ran afoul. By some accounts, that campaign has had a significant impact.

Landing blows against Big Tech in the courts or Congress has proved challenging for both parties, particularly since Republicans and Democrats disagree on just what’s wrong with the tech industry, let alone how to fix it. A bipartisan but Democrat-led package in the House of Representatives focuses on antitrust remedies, while a Republican counterproposal announced this week would expose platforms to greater liability for their moderation decisions. (Intentionally or not, Trump’s news conference stole the thunder from that announcement, putting the former president back out front on the issue of tech accountability.) A federal judge recently dismissed the government’s antitrust lawsuits against Facebook.

Trump files class-action lawsuits targeting Facebook, Google and Twitter over ‘censorship’ of conservatives

While the tech giants may prove an elusive target for regulation or enforcement, they make for an easy rhetorical punching bag. On Wednesday, at a moment when Trump’s name was mostly in the headlines for ugly anecdotes from a forthcoming book, the former president saw a chance to make news on his own terms by taking some fresh jabs at a familiar foe.

With flags rippling and cameras rolling, flanked by his staff and loyalists, Trump took to a lectern to decry what he called “social media companies’ shameful censorship of the American people.” That the lectern was at his golf club in Bedminster, N.J., rather than in the White House Rose Garden was hardly noticeable. He was back in the spotlight, inveighing against powerful interests on behalf of freedom-loving Americans. The news conference cast Trump in his favored role of righteous, aggrieved crusader against elite institutions — in this case, big tech companies, which Americans of both political parties have grown to mistrust.

It also made for a golden fundraising opportunity. Text messages and email blasts trumpeting the lawsuit implored supporters to donate, promising “5X MATCH” and “5X-IMPACT.” Even the website Trump’s team set up for people to join the lawsuit — — turned out to be a fundraising page for the America First Policy Institute, the nonprofit entity set up by ex-Trump administration officials to advance his political agenda. The page offered no obvious way to join the suit, but it did have a big red button that said, in all capital letters, “DONATE.”

Trump aides and allies say fundraising pitches about Big Tech censorship are often among their most lucrative, and internal polling from various party committees and the RNC has shown that Republicans want the party to take on the industry more aggressively. Some of the potential 2024 presidential candidates, including Florida Gov. Ron DeSantis, have made the tech giants’ power a routine talking point, and RNC Chairwoman Ronna McDaniel has included it in her pitch for donations to the party.

Why Trump is taking the unusual step of actually filing a lawsuit he had threatened

After the announcement of the lawsuit, it was all too easy for liberal commentators to poke holes in Trump’s legal case against the tech giants. “Someone should remind him that they’re private companies to which the First Amendment doesn’t apply,” tweeted former labor secretary Robert Reich.

Of course, Trump’s lawyers know that: Their complaints try to bridge the logical gap by arguing that dominant platforms such as Facebook have become, in essence, organs of the state, especially when they act to suppress speech deemed harmful by the government. A judge probably won’t buy that, but it resonates with many people’s fears about social media giants’ vast reach and power — and not exclusively on the right. Governments around the world have indeed pressured social media platforms to censor speech those government do not like, and you don’t have to be a wild-eyed conspiracist to imagine it happening in the United States as well.

The real hypocrisy of Trump’s case, Goldman points out, is that the U.S. government official most responsible for trying to strong-arm the platforms is Trump himself. Last year, he responded to a content moderation decision he didn’t like by issuing an executive order that sought to weaken social media companies’ liability shield. (President Biden revoked the order in May.) In any case, few Trump supporters who are angry at the tech giants are likely to be perturbed by that contradiction. Nor will they be convinced that it’s fine for social media companies to ban Trump just because they’re private companies, no matter what a judge says.

Trump’s complaints may stand little chance in a court of law. But in the court of conservative opinion, they’re sure to find a sympathetic jury.

Josh Dawsey contributed to this report.