Former President Donald Trump announced class-action lawsuits against Facebook, Twitter and Google on Wednesday that seek the prompt restoration of Trump’s social media accounts. He will also ask the court to impose "punitive damages" on the social media companies for banning him on their sites following the Capitol riot on Jan. 6.
Trump and the other plaintiffs may be right that their speech is being suppressed by these companies. It’s just that no legal remedy is available to them.
The cases rest on the claim that Trump’s free speech rights are being denied by these companies. Additionally, in the complaint against Google CEO Sundar Pichai and subsidiary YouTube, Trump and his fellow plaintiffs ask for a declaration that Section 230 of the Communications Decency Act — which shields social media companies from liability — is unconstitutional. They reason that Congress cannot lawfully encourage private persons to censor speech if Congress is constitutionally forbidden from doing the same thing.
Trump is right that it’s generally unconstitutional for a state actor to suppress his speech, since the First Amendment states that “Congress shall make no law … abridging the freedom of speech, or of the press.” But social media companies are not Congress, or any other state actor. They are private companies. And private companies cannot violate the First Amendment. Instead, they may have their own First Amendment rights that could be violated by the state.
Trump tries to leapfrog this obstacle by arguing that the social media companies have worked so closely with federal entities that they have risen from private status to “state actor” status. While this contention might seem fanciful, the Trump plaintiffs actually have a point; it’s just that the point won’t help them in this particular case.
Sometimes when a private entity conducts a “public function,” it may indeed be considered a “state actor.” The issue here is whether the service that YouTube and the other companies provide is considered a “public function.” It’s a very hard test to pass.
To qualify, the function performed by the private entity must be traditionally and exclusively governmental. Even if the function serves the public interest or the greater good, that is not enough. An example would be a private group running an election or operating a company town. And that’s pretty much it when it comes to examples. That’s how limited this exception is.
Hosting speech on a private platform is simply not an activity that only governmental entities have traditionally performed. Indeed, a federal appeals court already ruled in a separate case last year that YouTube doesn’t perform a public function. It’s hard to see why Facebook and Twitter should be regarded differently under the law.
Trump and the other plaintiffs may be right that their speech is being suppressed by these companies. It’s just that no legal remedy is available to them, much less one in which the court forces the social media platforms to restore their accounts and pay them damages for the time they were shut down.
Relatedly, the two main prongs of legal immunity granted to social media companies under Section 230 are so broad that most lawsuits like this one are dismissed by courts before they even get to a jury trial. The first prong says social media companies only provide information and are not editorial publishers, a classification upheld in an earlier case against Facebook. Since they are merely providers, social media companies are shielded from liability for information posted by a third party on their sites and therefore mostly can’t be required by law to remove any content.
On the other hand, the second prong allows social media companies to take down content of their own accord. What’s known as the “Good Samaritan” provision of Section 230 says social media companies can restrict in “good faith” content they consider “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.” Again, it’s hard to see how any court would deny Facebook, Twitter and YouTube the right to take content by Trump and his associates down under this provision.
But here’s where this lawsuit gets even stranger: It may be that getting thrown out of court could be the best thing that happens to Trump and the other plaintiffs, while the worst thing for them could be winning the case. If Section 230 were declared unconstitutional and disappeared, social media companies would be exposed to massive civil liability for the content on their platforms.
Suddenly, lawsuits like Trump’s would be more likely to succeed. In response, social media companies would then immediately start censoring any speech that might remotely cause them liability. They might face more lawsuits like this one by plaintiffs claiming their free speech rights were denied. At that point, social media companies might be sued out of existence, and the platforms would disappear entirely.
The internet could be reduced to kitten videos and “have a nice day” memes. And that’s about it. Clearly that’s not the internet Trump and his fellow plaintiffs want, but if they win and Section 230 goes away, that might be what they get.