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In a Wall Street Journal op-ed Thursday about his new lawsuits against Facebook, Twitter and YouTube, former President Donald Trump argued it was “unconstitutional” for social media companies to prevent certain people from posting or block specific types of declarations.
The editorial – which was published as Trump but was written in much more legalistic and sober language than what Trump usually uses – argues that “big tech companies are being used to enforce illegal and unconstitutional government censorship.” . He states that “tech companies are auctioning off the government, colluding to censor unapproved ideas” and that, “in fact, Big Tech has been illegally named as the censorship arm of the US government.”
The editorial argues that social media companies “took guidance” from government entities like the Centers for Disease Control and Prevention, and engaged in “coordination” with these entities, on what constituted disinformation about 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.
Normally, we do not 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 in 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 licensed by the New York government to operate 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 is not an activity that only government entities have traditionally performed. Therefore, a private entity which provides a forum for speaking is not transformed by it alone. made 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 executive branch chief. government at the time – or when companies decided to ban other lesser-known citizens, the editorial mentions.
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