Keilar reviews Trump’s long history of frivolous lawsuits

By Daniel Dale

He keeps saying it. It’s still wrong.

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

The op-ed — which was published under Trump’s name but was written in far more legalistic and restrained language than Trump usually uses — contends that “Big Tech companies are being used to impose illegal and unconstitutional government censorship.” It declares that “the tech companies are doing the government’s bidding, colluding to censor unapproved ideas” and that, “in effect, Big Tech has been illegally deputized as the censorship arm of the U.S. government.”

The op-ed argues that social media companies took “guidance” from governmental entities like the Centers for Disease Control and Prevention, and engaged in “coordination” with these entities, about what constituted Covid-19 misinformation that should be censored. Thus, the op-ed suggests, the social media companies qualify as state actors that are subject to the requirements of the First Amendment.

Facts First: US courts have consistently rejected the argument that social media companies are state actors that are subject to the First Amendment, which protects people from censorship by the government. Social media companies and other corporations are simply not required to let everyone use their services or to speak freely. And there is no evidence that the government has forced social media companies to make their decisions to bar specific users or prohibit specific kinds of speech.

We don’t normally render a fact-check verdict on the merits of litigation. Judges, not reporters, are the people who get to decide which legal arguments pass muster. But as legal experts have pointed out to numerous media outlets, Trump’s constitutional assertions are certain to fail because judges have already rejected them repeatedly.

In a 2019 opinion written by one of Trump’s own appointees, Justice Brett Kavanaugh, the Supreme Court ruled that even a nonprofit entity that the government of New York City allowed to run its public access television channels did not qualify as a state actor.

Kavanaugh wrote that “merely hosting speech by others is not a traditional, exclusive public function and does not alone transform private entities into state actors subject to First Amendment constraints.” Kavanaugh also wrote: “Providing some kind of forum for speech is not an activity that only governmental entities have traditionally performed. Therefore, a private entity who provides a forum for speech is not transformed by that fact alone into a state actor.”

Speech-hosting social media companies, too, clearly do not provide a function that only governmental entities have traditionally performed.

Kavanaugh wrote that the court has held that private entities can qualify as a state actor “in a few limited circumstances,” including “when the government compels the private entity to take a particular action” or “when the government acts jointly with the private entity.”

The Trump op-ed suggests that social media companies were compelled into action because Congress held hearings to ask their chief executive officers tough questions about their approaches to the spread of false information. But Congress has publicly interrogated a wide variety of corporate executives whose companies (from Big Tobacco to Big Pharma) have not therefore been transformed into state actors. There is no sign that the government actually forced Twitter, Facebook or YouTube to make the content decisions it did.

Similarly, there’s zero evidence the government was acting “jointly” with Twitter, Facebook or YouTube when the companies decided in January to bar Trump from posting — Trump, of course, was the head of the government’s executive branch at the time — or when the companies decided to bar the other, lesser-known citizens the op-ed mentions.

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