Suspended by the main web platforms after the assault on Capitol Hill, Donald Trump is now trying to counterattack with his favorite weapon: legal action. But by claiming that Google, Facebook and Twitter have violated the First Amendment on freedom of expression, he will have to convince a judge that the Gafa are not private companies but “state actors”. Which, according to the consensus of legal experts, is wasted and suggests that Donald Trump is attempting above all a media stunt.
First problem: Complaints are made in Florida, not California
There can be no guarantee that the Florida courts will agree to take up these class actions (collective complaints) filed by Donald Trump and half a dozen Internet users in sunny Miami. The charters of Facebook and Twitter, in particular, stipulate that any legal action must be brought before the Californian courts. There are sometimes jurisdictional exceptions, but they are rare.
Second problem: 61 similar complainants already unsuccessful
Eric Goldman, a law professor specializing in new technologies at the University of Santa Clara, California, reviewed 61 court decisions on appeals filed by Internet users, who had been suspended or forced to delete publications. They all lost, most of them very quickly. Severely, he judges that the arguments of Donald Trump’s lawyers – who have, for half of them, [email protected] addresses – have “no merit”.
Third problem: The 1st amendment applies to the government, not to private companies
This is the root of the problem. The First Amendment begins as follows: “Congress shall not pass any law relating to the establishment of a religion, or the prohibition of its free exercise; or to limit freedom of expression ”.
“Congress” shall make no law… Trump and his lawyers need to read the first line of the First Amendment. His lawsuit complaining of censorship against private social media companies and their leaders is going nowhere. https://t.co/Va6vNhWxpO
– Barb McQuade (@BarbMcQuade) July 7, 2021
Facebook, Google and Twitter are private companies, which are free to impose rules that users agree to when creating their accounts, and then enforce them. Donald Trump’s lawyers know this well. To get around this armored wall, they claim – it’s a bit technical – that the platforms took decisions under pressure from US elected officials, who threatened to revoke section 230 of the “Communications Decency Act”. This law is a pillar of the functioning of digital platforms. It offers Facebook, Twitter or YouTube immunity against any legal action related to content published by third parties and gives them the freedom to intervene on the platforms as they see fit. The complaint therefore asserts that the Gafa have become “state actors”. And are covered by the 1st Amendment.
For Eric Goldman, “these arguments are not new, and there is no chance that these complaints from Donald Trump will succeed where others have failed.” In Florida, a judge last week challenged a law signed by Governor Ron DeSantis – a fervent supporter of Donald Trump – which wanted to punish platforms banning political candidates. The judge considered that the text was unconstitutional and infringed on the freedom of expression… of Facebook and Twitter.