By Vivek Ramaswamy
PHIL FOSTER
T
he media has panned Donald Trump’s First Amendment lawsuits against
Facebook, Twitter and
YouTube: “sure to fail,” “as
stupid as you’d think,” “ridiculous.”
Mr. Trump’s complaint omits important precedents, facts and claims for
relief, but there’s a strong case to be
made that social-media censorship
violates the Constitution. If his lawyers do better in court than in their
initial filing, Mr. Trump can win.
It’s true that the First Amendment
ordinarily applies to the government
rather than private companies. But
the central claim in Mr. Trump’s
class-action lawsuit—that the defendants should be treated as state actors and are bound by the First
Amendment when they engage in selective political censorship—has
precedent to back it up. Their censorship constitutes state action because
the government granted them immunity from legal liability, threatened to
punish them if they allow disfavored
speech, and colluded with them in
choosing targets for censorship.
The Supreme Court held in Norwood v. Harrison (1973) that the government “may not induce, encourage,
or promote private persons to accomplish what it is constitutionally forbidden to accomplish.” As Jed Rubenfeld and I argued in these pages in
January, that’s what Congress did by
passing Section 230(c)(2) of the 1996
Communications Decency Act, which
permits tech companies to censor
constitutionally protected speech and
immunizes them from state liability if
they do so.
The high court has repeatedly held that federal immunity preempting state law can transform a
private party’s conduct into state action subject to constitutional scrutiny. In Railway Employees’ Department v. Hanson (1956), the justices
found state action in union-employer
agreements because Congress had
passed a statute immunizing such
agreements from liability under state
law. In Skinner v. Railway Labor Executives Association (1989), the
court again found state action in a
private company’s conduct because
federal laws immunized companies
from liability if they tested employees for drugs.
Prominent congressional Democrats have also issued severe, explicit
and repeated threats to retaliate
against social-media giants if they
fail to remove “hate speech” and
“misinformation” that the government can’t directly censor under the
Constitution. These threats have
worked.
In an October 2020 hearing, as Mr.
Trump’s lawsuits note, Sen. Richard
Blumenthal of Connecticut told CEOs
Jack Dorsey of Twitter and Mark
Zuckerberg of Facebook: “The president has used this microphone to
spread vicious falsehoods and apparent attempt to overturn the will of
the voters.” In the same hearing, he
threatened “a breakup of the tech giants” and “Section 230 reform,” including “possible repeal.” Mr. Zuckerberg has called such regulations an
“existential threat” to Facebook. In
January both sites banned Mr.
Trump.
The Supreme Court held in Bantam Books v. Sullivan (1963) that the
First Amendment was violated when
a private bookstore stopped selling
works after officials deemed them
“objectionable” and threatened prosecution. In Carlin Communications v.
Mountain States Telephone & Telegraph Co. (1987), the Ninth Circuit
Court of Appeals found that a telephone company was acting as a state
agent when it acceded to government
threats to stop carrying offensive
content on paid dial-in lines.
Even if Messrs. Zuckerberg and
Dorsey didn’t fear these government
threats, the Second Circuit held in
Hammerhead Enterprises v. Brezenoff
(1983) that if government officials’
comments “can be reasonably interpreted as intimating that some form
of punishment or adverse regulatory
action will follow the failure to accede to the official’s request,” that’s
enough to constitute state action.
The Ninth Circuit has held that it
doesn’t matter if the threats were the
“real motivating force” behind the
private party’s conduct.
A growing body of evidence suggests that social media companies
have voluntarily worked with Democratic officials to censor content the
latter disfavor. In Brentwood Academy
v. Tennessee Secondary School Athletic Association (2001), the high court
held that state action exists if the private party’s conduct results from “significant encouragement, either overt
or covert,” or if the private party is a
“willful participant in joint activity
with the State or its agents.”
According to allegations in other
pending lawsuits, Twitter formed
“trusted partner” relationships with
state officials to remove content
identified by the officials as election
misinformation—when in reality the
content was simply critical of state
policies.
In September 2020 Mr. Zuckerberg
acknowledged that Facebook “works
with” the Centers for Disease Control
and Prevention to remove Covid-related content. The company’s official
policy states that it is “advised” by
public-health authorities about what
Covid content should be blocked. For
months, while officials including Anthony Fauci proclaimed that the Wuhan lab-leak theory was “debunked”
and a “conspiracy theory,” Facebook
blocked any mention of that theory as
“misinformation.”
But after Dr. Fauci and the administration retreated from this position,
Facebook almost immediately lifted
its ban. Recently published email exchanges between Mr. Zuckerberg and
Dr. Fauci reveal no evidence of direct
instruction from the government on
this point but make a case for Facebook’s willful participation in a joint
activity with the government.
Mr. Trump’s lawsuits don’t go as
far as they could have in establishing
a pattern of willful participation, but
their discovery phase will almost
surely reveal additional examples.
Social-media companies are privately
owned, but when they collude with
officials to block disfavored content,
they are serving as the government’s
censorship bureau and must answer
to the First Amendment.
Mr. Trump has another path to legal victory even if he loses on the
state-action claim. State legislatures,
most recently in Florida, have begun
to impose nondiscrimination and
common-carrier requirements on Big
Tech platforms. Opponents say these
laws violate the companies’ First
Amendment rights. But if so, how
could similar nondiscrimination laws
have been imposed for decades on
telephone companies? Opponents also
say these laws are pre-empted by Section 230. But as Justice Clarence
Thomas observed in his concurrence
in Biden v. Knight First Amendment
Institute, Section 230 is arguably unconstitutional if interpreted to preempt state laws against viewpoint
discrimination. Mr. Trump failed to
assert this claim under Florida law,
though he could amend his complaint
before trial to do so.
Mr. Trump’s critics are mistaken to
think the claims he raises are completely novel. But the case is unprecedented in another way—the staggering
scale of Big Tech’s power to restrict
speech. No company in U.S. history has
so comprehensively silenced elected
officials or prevented them from communicating with citizens. Worse, they
did so at the behest of, and in careful
coordination with, government leaders
in the ascendant opposition party as it
gained power.
In 1924 Commerce Secretary Herbert Hoover warned against the concentration of corporate power in the
radio industry: “We cannot allow any
single person or group to place themselves in a position where they can
censor the material which shall be
broadcasted to the public.” Almost a
century later, the danger he foretold
has been realized. Mr. Trump’s case
provides an opportunity to address it.