By Noah Feldman / Bloomberg Opinion
Former President Trump’s lawsuits against Twitter, Google and Facebook for kicking him off their platforms are certain losers, legally speaking. The First Amendment protects people against state action, and tech companies aren’t state actors.
Yet Trump’s main argument to the contrary — that congressional Democrats coerced the platforms into cutting him off by threatening to repeal Section 230 of the Communications Decency Act — deserves close scrutiny. Wittingly or not, it sheds light on how Trump tried to push around the platforms during his presidency, and arguably succeeded until the Capitol attack of Jan. 6.
I’ll focus on the Twitter case, because Twitter was Trump’s preferred communication outlet. (Disclosure: I have advised Facebook on ethical-governance and free-expression issues since 2018.)
Trump’s lawsuit acknowledges that, in order to sue Twitter under the First Amendment, he must first prove state action against him. His lawyers therefore made a strategic choice not to invoke arguments proposed by Justice Clarence Thomas in a solo opinion in April 2021, according to which social media platforms could be treated as common carriers or public accommodations and thus required to carry content that violates their terms of service.
The trouble with relying on the First Amendment is that Twitter isn’t the government. It’s a private company. Its decision to allow or prohibit speech is not subject to any restrictions imposed by the First Amendment. Twitter’s decisions are protected by First Amendment rights that extend to corporations just as they do to you and me.
To get around the state-action problem, Trump’s lawyers alleged that Democratic lawmakers “coerced” Twitter to ban Trump, specifically by threatening to revoke the famous Section 230. That is the law giving legal immunity to providers of computer services, including social media platforms, for any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing or otherwise objectionable.
The same law also says that the platforms won’t be treated as publishers of posts made by third parties. That means that if someone libels you on Twitter, you can sue the person who posted the defamatory and false material, but you can’t sue Twitter.
There is no question that Section 230 has been advantageous to the platforms. If it were revoked by Congress, the platforms would have to find a way to remove potentially libelous material or else face lawsuits from people who have been defamed on their services. And although some eventual reform of Section 230 seems likely, the way that revision is undertaken will affect the platforms, which therefore care a lot about the law’s future.
Here is where the extreme chutzpah of Trump’s lawsuit comes in, along with its importance. Throughout Trump’s presidency, Democrats had no power to revoke Section 230 because Republicans controlled the Senate. The meaningful threats came not from the Democrats, but from Trump and the Republican Party. In fact, in October 2020, in conjunction with a Section 230 reform proposal issued by his Department of Justice, Trump actually tweeted, “REPEAL SECTION 230!!!”
As president with two years of party control of both houses of Congress followed by two years with control of one, Trump could have hurt the tech giants. And although it’s impossible to say for sure, it seems at least plausible that the platforms’ decisions to leave Trump’s accounts in place as long as they did were affected by Trump’s power as president.
The basis for this hypothesis is that Jan. 6 was not the first time that Trump broke the platforms’ terms of service. He promoted violence and hate before that. So Twitter was making a policy decision when it left Trump’s account up until the Capitol attack, just as it was making a policy decision when it took the account down afterward.
Current constitutional doctrine doesn’t clearly lay out how much government coercion of a private actor’s speech decisions it would take to constitute a First Amendment violation. A background threat of new legislation, such as the one Trump alleges in his lawsuit, certainly doesn’t qualify. But what about a threat not to approve a merger, along the lines of one that Trump’s White House reportedly considered in 2017 when Time Warner, CNN’s parent company, was poised to merge with AT&T?
The bottom line is that the government does have the capacity to affect private speech by threats. And under at least some circumstances, that threat should be actionable. The proper defendant would be the government actors doing the threatening, not the media platforms subject to threat.
It’s tempting to conclude that Trump’s lawyers thought up the theory of this lawsuit by reflecting on what Trump and Republicans actually did, then blaming it on the Democrats. But that cheek shouldn’t distract us from an actual and serious free-speech problem lurking in the background when the government abuses its power in the attempt to coerce private speech.
Noah Feldman is a Bloomberg Opinion columnist and host of the podcast “Deep Background.” He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”
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