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Trump V. Twitter Suit Needs More Legal Gravitas

July 19, 2021 Frontpage No Comments


I will be the first to admit that I am no constitutional expert; but I think I know enough to evaluate a case and I have to come to the conclusion that former President Donald Trump’s lawsuit against Twitter lacks a certain amount of legal gravitas.
As you probably know by now, Mr. Trump has filed class action lawsuits against Twitter and the other major social media companies. The central target in his suit is Section 230 of the Communications Decency Act, which protects Twitter and other social media outlets from lawsuits over their content, or in some cases, the lack of content.
Section 230’s object was to allow these media outlets to block materials that were pornographic without penalty. It also protected the social media entities from being subject to legal action over posts that could be considered libel. Obviously this is only a quick thumbnail version of the statute, but you can see that it gave the (at the time budding) social media protection against lawsuits for posts made by users, and encouraged the companies to keep material harmful to children off their platforms.
The theory behind the protection was the belief that social media platforms were just that, platforms. In other words, they just provided the means for users to express their views; they were not publishers. Social media platforms were much like bookstores that provided a wide variety of books and information but did not author or edit the material, thus they should not be held to the same standard as, say, a newspaper that is responsible for its entire content.
Now there is little doubt in my mind that Section 230 has outlived its usefulness. And there is little doubt in my mind that Twitter and the other platforms have long ago abandoned the bookstore model for the publisher model. They censor, they block certain users — as they did to Mr. Trump — and one way or another they control content. Thus in my feeble legal mind once they took the position of an editor they should have lost their “bookstore” protection.
And Mr. Trump’s lawsuit rightfully attacks Section 230. But I did not see in the 24-page lawsuit against Twitter the claim that Twitter, by its own actions, has abandoned the protection given to a social media “platform” by becoming an editor of content, that it has become more like a newspaper than a bookstore.
Another argument I think Mr. Trump’s attorneys missed was served up to them only a few months ago by Supreme Court Justice Clarence Thomas: These digital platforms should be treated as common carriers who are required to serve all and who are not allowed to discriminate against customers who are acting lawfully.
In the Trump suit, the former president tried to present Twitter’s suppressions and suspensions of accounts as a violation of the First Amendment rights of free speech. That, of course, is going to be a hard matter to prove since private entities are not subject to free speech provisions, only the government is.
To get around that argument, Mr. Trump argues that: “Twitter has increasingly engaged in impermissible censorship resulting from threatened legislative action, a misguided reliance upon Section 230, and willful participation in joint activity with federal actors. Defendant Twitter’s status thus rises beyond that of a private company to that of a state actor, and as such, (Twitter) is constrained by the First Amendment right to free speech in the censorship decisions it makes.”
In support of that, the lawsuit alleges that the social media giants bent to the pressure of certain “governmental” agents, including the Democratic Party and Michelle Obama, thus making Twitter a quasi-public entity thus governed by the First Amendment.
That’s a stretch. The suit does allege that Twitter accounts are operating as public forums, but could have taken that a lot further to make a better case. But Justice Thomas in his opinion in Biden v. Knight (in a case involving Mr. Trump) wrote: “If part of the problem is private, concentrated control over online content and platforms available to the public, then part of the solution may be found in doctrines that limit the right of a private company to exclude.”
(See also, “Is Twitter a Common Carrier?” The Wanderer, April 22, 2021).
Then Justice Thomas outlined the legal history of the doctrines of common carriers and public accommodations, where each type of entity is required to serve all comers. “This court long ago suggested that regulations like those placed on common carriers may be justified, even for industries not historically recognized as common carriers, when a business, by circumstances and its nature…rises from private to be of public concern.”
On balance the Trump lawsuit did point out that millions of Twitter users used the platform as a public forum and that the censoring of and the bans against some members have “ended balanced, direct public discussions between competing political views on national and local issues.” And added “[Mr. Trump’s] account was a digital town hall in which [he] communicated news and information to the public directly.”
He also pointed out rather amorphous character of Twitter’s “Terms of Service” which he described as “vague, broad, ill-defined, or not defined at all.”
In that regard Mr. Trump alleges: “Twitter’s Terms of Service (‘TOS’) is comprised of its Privacy Policy, the Twitter Rules and Policies, and all other incorporated policies of Twitter. The Twitter TOS, User Agreement, and Privacy Policies span seventy-six (76) pages. In addition, Twitter’s Rules and Policies contains sixty-five (65) hyperlinks to topics incorporated into the User Agreement. Understanding the confusing TOS requires a continuous cross-reference to other sections and previously defined terms. Twitter further reserves the right to change its TOS from time to time and states that it ‘will try to notify’ Users of any changes in its TOS. By using Twitter after it has changed its TOS, even without notification, a User is bound by those terms.”
He also stated, which he should hammer home because it relates to Justice Thomas’ opinion, “Twitter’s platform has been the catalyst for social movements across the globe, allowing Users to connect and collectively organize. In the world of American politics, Twitter is used by elected officials to make policy announcements, for those with political aspirations to announce they are running for office, and by political supporters to express their support or disapproval of politicians and major political figures, including President Trump….
“Likewise, with Plaintiff now removed from Twitter and other social media platforms, it has ended balanced, direct public discussions between competing political views on national and local issues.”
The suit is styled as a class action which means the lead plaintiffs, Mr. Trump and the American Conservative Union, would represent all Twitter users so impacted, unless they opt-out. One of the first steps in the lawsuit would be for the court to certify it as a class action. It lists two counts, the first being the First Amendment violation, and the second is an application for a declaratory judgment that Section 230 is unconstitutional.
It also asks for a jury trial and was filed in the federal court for the Southern District of Florida.
I hope the legal arguments at trial and in brief are more developed than contained in the initial complaint and I hope the lawyers for Mr. Trump tone down some of their conclusory accusations about the former president’s political opponents and stick to the facts and follow the path that Justice Thomas laid out a little over two months ago. In my opinion that would be the surest path to victory.
In any event, I hope he wins. This is too big of an issue to allow it to be tied around one man’s ego.
(You can reach Mike at: and listen to him every Thursday morning at 10 (CT) on Faith On Trial at

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