Keilar reviews long history of frivolous Trump lawsuits



By Daniel Dale

He keeps saying it. It is still wrong.

In a Wall Street Journal op-ed Thursday on his new lawsuits against Facebook, Twitter and YouTube, former President Donald Trump argued that it is “unconstitutional” for social media companies to prevent certain people from posting or posting. block specific types of declarations.

The editorial – which was published under Trump’s name but was written in much more legalistic and sober language than what Trump usually uses – claims that “big tech companies are being used to enforce illegal and unconstitutional government censorship. “. He states that “tech companies are making government offers, colluding to censor unapproved ideas” and that, “in fact, Big Tech has been illegally identified as the censorship arm of the US government.”

The editorial argues that social media companies took “directions” from government entities like the Centers for Disease Control and Prevention, and engaged in “coordination” with those entities, on what constituted misinformation from Covid-19 which should be censored. Thus, the editorial suggests, social media companies are seen as state actors subject to the requirements of the First Amendment.

Facts first: American courts have systematically rejected the argument that social media companies are state actors subject to the First Amendment, which protects people from government censorship. Social media companies and other companies are just not necessary to let everyone use their services or to express themselves freely. And there is no evidence that the government forced social media companies to make the decision to ban certain users or ban certain types of speech.

We do not normally render a fact-check verdict on the merits of a dispute. It is the judges, not the journalists, who decide which legal arguments to use. But as legal experts have pointed out to numerous media outlets, Trump’s constitutional claims will certainly fail because judges have repeatedly rejected them.

In a 2019 opinion written by one of Trump’s appointees, Justice Brett Kavanaugh, the Supreme Court ruled that even a non-profit entity the New York government allowed to run its public access television channels was not considered a state actor.

Kavanaugh wrote that “the mere act of welcoming the speech of others is not a traditional and exclusive public function and does not on its own turn private entities into state actors subject to the constraints of the First Amendment”. Kavanaugh also wrote: “Providing some sort of forum for speaking out is not an activity that only government entities have traditionally performed. Consequently, a private entity which provides a forum for speaking is not transformed by this fact alone into a state actor.

Social media companies that host speeches, too, clearly do not perform a function that only government entities have traditionally performed.

Kavanaugh wrote that the court ruled that private entities may qualify as a state actor “in some limited circumstances” including “where the government compels the private entity to take a particular action” or “when the government acts jointly. with the private entity. “

Trump’s editorial suggests that social media companies were forced to act because Congress held hearings to ask their CEOs tough questions about their approaches to spreading fake news. But Congress has publicly questioned a wide variety of business leaders whose companies (from Big Tobacco to Big Pharma) have therefore not been turned into state actors. There is no sign that the government has actually forced Twitter, Facebook or YouTube to make the content decisions it has made.

Likewise, there is no evidence that the government was acting “in conjunction” with Twitter, Facebook or YouTube when companies decided in January to ban Trump from posting – Trump, of course, was the leader at the time. from the executive branch of government – or when the corporations decided to ban the other lesser-known citizens mentioned in the editorial.

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