Comment: Trump’s Twitter lawsuit raises one serious concern

It accuses Democrats of coercing social media to ban his accounts. It was Trump who was making threats.

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.”

Talk to us

> Give us your news tips.

> Send us a letter to the editor.

> More Herald contact information.

More in Opinion

THis is an editorial cartoon by Michael de Adder . Michael de Adder was born in Moncton, New Brunswick. He studied art at Mount Allison University where he received a Bachelor of Fine Arts in drawing and painting. He began his career working for The Coast, a Halifax-based alternative weekly, drawing a popular comic strip called Walterworld which lampooned the then-current mayor of Halifax, Walter Fitzgerald. This led to freelance jobs at The Chronicle-Herald and The Hill Times in Ottawa, Ontario.

 

After freelancing for a few years, de Adder landed his first full time cartooning job at the Halifax Daily News. After the Daily News folded in 2008, he became the full-time freelance cartoonist at New Brunswick Publishing. He was let go for political views expressed through his work including a cartoon depicting U.S. President Donald Trump’s border policies. He now freelances for the Halifax Chronicle Herald, the Toronto Star, Ottawa Hill Times and Counterpoint in the USA. He has over a million readers per day and is considered the most read cartoonist in Canada.

 

Michael de Adder has won numerous awards for his work, including seven Atlantic Journalism Awards plus a Gold Innovation Award for news animation in 2008. He won the Association of Editorial Cartoonists' 2002 Golden Spike Award for best editorial cartoon spiked by an editor and the Association of Canadian Cartoonists 2014 Townsend Award. The National Cartoonists Society for the Reuben Award has shortlisted him in the Editorial Cartooning category. He is a past president of the Association of Canadian Editorial Cartoonists and spent 10 years on the board of the Cartoonists Rights Network.
Editorial cartoons for Sunday, July 6

A sketchy look at the news of the day.… Continue reading

A Volunteers of America Western Washington crisis counselor talks with somebody on the phone Thursday, July 28, 2022, in at the VOA Behavioral Health Crisis Call Center in Everett, Washington. (Ryan Berry / The Herald)
Editorial: Dire results will follow end of LGBTQ+ crisis line

The Trump administration will end funding for a 988 line that serves youths in the LGBTQ+ community.

FILE — The journalist Bill Moyers previews an upcoming broadcast with staffers in New York, in March 2001. Moyers, who served as chief spokesman for President Lyndon Johnson during the American military buildup in Vietnam and then went on to a long and celebrated career as a broadcast journalist, returning repeatedly to the subject of the corruption of American democracy by money and power, died in Manhattan on June 26, 2025. He was 91. (Don Hogan Charles/The New York Times)
Comment: Bill Moyers and the power of journalism

His reporting and interviews strengthened democracy by connecting Americans to ideas and each other.

Brooks: AI can’t help students learn to think; it thinks for them

A new study shows deeper learning for those who wrote essays unassisted by large language models.

Do we have to fix Congress to get them to act on Social Security?

Thanks to The Herald Editorial Board for weighing in (probably not for… Continue reading

Comment: Keep county’s public lands in the public’s hands

Now pulled from consideration, the potential sale threatened the county’s resources and environment.

Comment: Companies can’t decide when they’ll be good neighbors

Consumers and officials should hold companies accountable for fair policies and fair prices.

Comment: State’s new tax on digital sales ads unfair and unwise

Washington’s focus on chasing new tax revenue could drive innovation and the jobs to other states.

toon
Editorial: Using discourse to get to common ground

A Building Bridges panel discussion heard from lawmakers and students on disagreeing agreeably.

Senate Minority Leader Chuck Schumer (D-N.Y.) speaks during a news conference at the U.S. Capitol on Friday, June 27, 2025. The sweeping measure Senate Republican leaders hope to push through has many unpopular elements that they despise. But they face a political reckoning on taxes and the scorn of the president if they fail to pass it. (Kent Nishimura/The New York Times)
Editorial: GOP should heed all-caps message on tax policy bill

Trading cuts to Medicaid and more for tax cuts for the wealthy may have consequences for Republicans.

Alaina Livingston, a 4th grade teacher at Silver Furs Elementary, receives her Johnson & Johnson COVID-19 vaccine at a vaccination clinic for Everett School District teachers and staff at Evergreen Middle School on Saturday, March 6, 2021 in Everett, Wa. (Olivia Vanni / The Herald)
Editorial: RFK Jr., CDC panel pose threat to vaccine access

Pharmacies following newly changed CDC guidelines may restrict access to vaccines for some patients.

Forum: Protecting, ensuring our freedoms in uncertain times

Independence means neither blind celebration nor helpless despair; it requires facing the work of democracy.

Support local journalism

If you value local news, make a gift now to support the trusted journalism you get in The Daily Herald. Donations processed in this system are not tax deductible.