Trump’s uphill battle against Big Tech censorship

Former President Donald Trump filed lawsuits earlier this week against Facebook, Twitter, and Google for alleged censorship of conservative users—echoing a familiar charge against the ubiquitous internet companies.

Wednesday’s trio of complaints in Miami’s federal district court each took on a separate social media provider, accusing Facebook CEO Mark Zuckerberg, Twitter CEO Jack Dorsey, and Google CEO Sundar Pichai and their companies of an “aggressive campaign of censorship”—all in violation of the First Amendment’s guarantee of free speech. The lawsuits are unlikely to make much headway legally, but they reflect widespread conservative frustrations.

Trump contends Congress unconstitutionally delegated its authority to regulate free speech on the social media platforms under Section 230 of the Communications Decency Act. The 1996 federal law immunizes internet providers from liability for user-posted content. More controversially, that immunity extends to the providers’ efforts to restrict or take down content it deems “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.”

Trump also argues that the companies deplatformed him after the Jan. 6 Capital riot “at the behest of, with cooperation from, and the approval of, Democrat lawmakers.” He claims Democratic legislators—and in one instance, former first lady Michelle Obama—threatened to remove Section 230 immunity to coerce the platforms to censor views Democrats disapproved of.

“Social media has become as central to free speech as town meeting halls, newspapers and television networks were in prior generations,” Trump wrote in a Thursday Wall Street Journal op-ed. “The internet is the new public square.” Other conservatives have used that argument to justify treating social media companies like public utilities subject to the First Amendment.

Can outsized internet providers be treated as state actors? “I don’t think so,” said Regent University School of Law Professor Brad Jacob. “The social media giants are private businesses; if you don’t like their rules, you don’t have to do business with them. But I find it hard to imagine any court saying that they are bound by the First Amendment.”

Another Florida federal judge affirmed that conclusion on June 30, blocking enforcement of a Florida bill set to take effect on July 1. Senate Bill 7072 would have barred social media providers from removing any candidate for public office from their platforms and otherwise restricted the companies.

In his opinion, U.S. District Judge Robert Hinkle, a Clinton appointee, slammed the legislation as an unconstitutional, viewpoint-based attack on the First Amendment rights of social media providers. Florida’s legislators’ effort to “level the playing field” was not a legitimate state interest, he wrote: “A private party that creates or uses its editorial judgment to select content for publication cannot be required by the government to also publish other content in the same manner.”

The legislation was a priority for Republican Gov. Ron DeSantis. He and Republican legislators pushed the bill through the legislature after Facebook, Twitter, and other internet companies removed Trump from their platforms after Jan. 6. DeSantis vowed to appeal Wednesday’s ruling, reported The Washington Post.

Hinkle’s ruling may be a bellwether for Republican-led states that want to corral what they regard as online censorship of conservatives. It may also suggest the likely end for Trump’s argument that Big Tech should be treated as a state actor—a theory bandied about by some conservatives and even Supreme Court Justice Clarence Thomas.

Judge Hinkle shot down that hope: “Whatever might be said of the largest providers’ monopolistic conduct, the internet provides a greater opportunity for individuals to publish their views—and for candidates to communicate directly with voters—than existed before the internet arrived.”

Legally, Trump’s lawsuit is a likely non-starter. But politically, it gives a voice to many who decry Big Tech dominance in the marketplace of ideas—and keeps an already-campaigning Trump in the public eye.