Trump can win his case against tech giants

The media swept aside Donald Trump’s First Amendment lawsuits against Facebook, Twitter and YouTube: “definitely fail”, “as stupid as you might think”, “ridiculous”. Mr Trump’s complaint omits important precedents, facts and demands for redress, but there is strong reason to believe that social media censorship violates the Constitution. If his lawyers do better in court than when they first filed, Mr. Trump may win.

It is true that the First Amendment generally applies to government rather than private companies. But the central claim of Mr. Trump’s class action suit – that defendants should be treated as state actors and are bound by the First Amendment when they engage in selective political censorship – has a 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 allowed unfavorable speech, and colluded with them in choosing the targets for censorship. .

The Supreme Court ruled in Norwood v. Harrison (1973) that the government “cannot induce, encourage or promote private persons to do what is constitutionally forbidden to do”. As Jed Rubenfeld and I argued in these pages in January, this is what Congress did by passing Section 230 (c) (2) of the Communications Decency Act of 1996, which allows technology companies to censor constitutionally protected speech and immunize it from state liability if they do so.

The High Court has repeatedly asserted that federal immunity over state law can transform a private party’s conduct into state action subject to constitutional review. In Department of Railway Employees c. Hanson (1956), the judges ruled on state action in labor-employer agreements because Congress had passed a law exempting such agreements from liability under state law. In Skinner v. Railway Labor Executives Association (1989), the court again found state action in the conduct of a private company because federal laws immunized companies from liability if they tested employees for drugs.

Prominent Congressional Democrats have also issued stern, explicit, and repeated threats of retaliation against social media giants if they fail to suppress ‘hate speech’ and ‘disinformation’ the government cannot censor directly under the Constitution. These threats worked.