James B. Astrachan
BridgeTower Media Newswires
Donald Trump recently sued Twitter, YouTube, Facebook and their CEOs. He claims they violated his free speech rights when he was “deplatformed,” or banned from use, following the Jan. 6 insurrection at the Capitol. These defendants, as most know, are social media platforms. Twitter is a social media platform with more than 350 million users and served as Trump’s primary means of public communication during his four years in office.
To succeed in imposing First Amendment obligations on social media platforms, Trump must establish these social media platforms are government actors, or instrumentalities of the government. This is because the First Amendment prevents a government from restricting expression because of its message, ideas, subject or content.
The free speech clause prohibits only government abrogation of speech. Courts usually take care to distinguish government actors from individuals and private entities, such as what Twitter appears to be. And while this is a steep slope for Trump to climb, from time to time, private entities have become government actors.
The three complaints filed by Trump in the U.S. District for the Southern District of Florida are ripe with factual allegations, intended to establish that these social media platforms are the instrumentalities of the government. Most of the allegations, however, are bold and without support. They appear to have tossed allegations at the wall to see what, if anything, will stick.
Trump, for example, alleges that Twitter, et al. have “increasingly engaged in impermissible censorship resulting from threatened legislative action. ...” He alleges that Congress has unconstitutionally delegated to Twitter, Facebook and YouTube the authority to censor his speech. Trump claims that he was removed from social media at “the behest of, with cooperation from, and with approval of, Democratic lawmakers.”
The reason this happened, he asserts, is that Democratic legislators “feared [Trump’s] skilled use of social media is a threat to their own re-election efforts.”
Trump further asserts that Democratic lawmakers voiced their displeasure with the social media platforms for allowing him a platform and a voice and, he claims, the Democrats spoke publicly of how they would punish social media if it continued to allow Trump to communicate views contrary to their Democratic agendas. Many prominent Democrats, Trump alleges, made it “increasingly clear they wanted [former] President Trump and the views he espoused, to be banned” from Twitter.
What’s clear is Trump was banned from these platforms; the stated reasons were that he used them to condone violence, engage in hate speech, incite violence, and incite insurrection, in violation of the platforms’ policies.
But to succeed with his suit and be reinstated, he will need to establish with credible facts that the social media platforms were state actors, subject to the First Amendment. Private entities, like Twitter, can qualify as state actors, but the circumstances are very limited. For example, if Twitter was performing a traditional public function such as running an election or operating a company town. Or, if Twitter acts jointly with the government to restrict speech. Or finally, if, as Trump seems to contend, the government compels Twitter to restrict speech.
Government regulation, license or contract with private entities does not convert the social media platforms into state actors. Many private entities obtain government licenses to do business. Many industries are heavily regulated. Extensive government regulation of social media does not make social media a state actor. Justice Clarence Thomas has opined that the Supreme Court has “never even hinted that regulatory control, and particularly direct regulatory control, over a private entity’s First Amendment speech rights” could justify subjecting it to the constraints of the First Amendment.
For Trump to have any chance of succeeding in his suit, he will need to show that he was banned from social media not because he used their platforms to incite violence, but instead because of the coercive power of unnamed “Democratic lawmakers.” Mere approval of Twitter’s actions by Democratic lawmakers will hardly serve to make Twitter a government actor subject to the First Amendment.
Trump suggests that Twitter has banned him because it fears that Congress may eliminate the immunity found in Section 230 of the Communications Decency Act. This has been debated, and Trump has been an ardent voice for its amendment; but there is no factual basis alleged that any legislator has offered social media a quid pro quo to ban Trump.
For now, the suit is based on allegations and conjecture that the social media platforms’ actions were government induced; much more will be needed if Trump is to convince a court that, despite his violations of the platforms’ policies, he is entitled to be replatformed. But from a showman, we should expect a show, and we will see whether he can survive a motion to dismiss.
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James B. Astrachan is a principal at Astrachan Gunst Thomas PC in Baltimore, an adjunct professor of law at the University of Baltimore and author of the six-volume treatise, “The Law Of Advertising.” He is also chairman of The Daily Record’s Editorial Advisory Board; the views expressed above are his own.
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