Comments on Trump’s Lawsuits Against YouTube, Facebook, and Twitter

July 12, 2021 · by · in Content Regulation, Derivative Liability, Internet History, Licensing/Contracts

When Trump signed his anti-230 EO in May 2020, I was immediately overwhelmed with media calls all asking the same basic question: this is garbage, right? We now have the final answer to that question. As I and others predicted at the time, the EO–now repealed–had zero material legal effect on Section 230 (though it keeps inspiring people who irrationally hate the “Tech Giants” more than they hate government censorship). So when Trump sued YouTube, Facebook, and Twitter on Wednesday….wow, deja vu. I got many media calls (20+), all asking the same question: this is garbage, right? The answer is an emphatic yes, for reasons I’ll explain below.

But Trump doesn’t care if his lawsuits crash-and-burn in court. He has brought thousands of lawsuits in his lifetime (and has made empty litigation threats many more times), and he rarely cares if he wins his lawsuits or invests much energy in trying to win. Usually he uses the threat of lawfare to gain leverage over defendants, such as to extract more favorable business terms or intimidate his critics into silence. That pressure tactic won’t work here. The social media services aren’t afraid of lawfare, and Trump surely knows he has little or no chance of winning in court. So Trump’s motivation for filing suit has to be something other than winning in court.

Like the anti-230 EO, these lawsuits are purely performative. Their principal goal is to dominate the media cycle, stoking his “base” that he continues to be their champion against the Silicon Valley villains. All of the insane media coverage of his suits last week delivered that payoff to Trump. As a bonus to him, when he loses in court, he will get a second media cycle to repeat his claims. Once you realize his goals don’t depend on winning in court, you’ll see that he literally cannot lose the lawsuits.

Trump’s announcement came just minutes after the House Republicans announced their anti-Big Tech agenda, which I’m sure they hoped would dominate the headlines. Maybe the announcement timings were coordinated, but I don’t think so. Instead, I think the House Republican got Trumped as he continues to play by his own rules. Trump’s announcement sucked the oxygen out of any coverage of the House Republican agenda. Trump seized all of the public credit as the action-oriented leader of the anti-Silicon Valley crusade, and Trump–and not the Republican leadership–will get the conservative cred and financial spoils. #WINNING.

(That highlights a secondary goal of the lawsuits: to shake the donor base for more money. I wonder how much money Trump raised off the complaints. Surely enough to cover the legal fees and then some).

The complaints will melt the brains of any reader who hasn’t gone #MAGA. Essentially, the complaints distill the highlights of the points Trump makes in his campaign rallies, so they are a mixture of nonsensical statements, flat-out lies, and grievances against his enemies.

It’s essentially impossible to comment intelligently on Trump’s lies/grievances in the complaints, and pointless too. Trump’s nonstop lies don’t change anyone’s opinion of him. His base loves the lies, and everyone else already assumes that everything he says is a lie. So no one benefits from a complete substantive analysis of the complaint’s details; just as it made no sense to do a substantive blog post on the anti-230 EO (though I wasted a dozen painful hours blogging it). Have some pity for the judges and their clerks who have to slog through this slop. We don’t pay them enough.

Though I won’t do a line-by-line analysis of the complaints, here are some of the lowlights.

The complaints have two causes of action. First, the complaint alleges that the US government made censorial demands of the Internet services, and those exhortations turned the services into state actors who then became compelled to follow the First Amendment. This argument has been tried and failed numerous times, most recently in Children’s Health Defense v. Facebook. No, Trump doesn’t have some clever arguments to do better than the prior lawsuits. He’s going straight into the teeth of precedent and logic, neither of which are on his side.

(I also can’t ignore the “irony” that Trump, while in office as President, made unprecedented censorial demands of Internet services. The flagship example was the anti-230 EO, a brazen attempt at coercing Internet services into treating “conservative” content more favorably. If Trump were truly playing 4D chess, he would have even made more censorial demands as President so that he could sue the Internet services post-presidency for becoming state actors by honoring those demands. #WINNINGAGAIN).

Structurally, Trump’s First Amendment claims turn the Constitution inside-out. The First Amendment protects the freedom of speech and press of private publishers like the Internet services. Counterintuitively, he’s trying to argue that when they exercise those Constitutionally protected rights, they violate the Constitution. In other words, he’s trying to twist the First Amendment so that it produces the directly opposite result of what it plainly says. As we saw with the district court’s ruling on the Florida social media censorship law in NetChoice v. Moody, this backwards application of the First Amendment won’t work.

The complaint’s second claim is that Section 230 is unconstitutional because, um, it protects editorial decisions (?). This argument has also failed in court; a version of it recently failed in the Newman and Divino cases. Indeed, in the Newman case, the Trump-era DOJ filed a brief defending the constitutionality of Section 230. Further, even if a court declared Section 230 unconstitutional (reminder: it is constitutional), this wouldn’t lead to any remedy that benefits Trump or the other class members. Internet services would still rely on the First Amendment and their contracts to justify their content moderation decisions towards Trump and the class members. So the anti-230 claim reflects Trump’s sour grapes and his preference for chaos, not a substantive effort to vindicate his rights.

Also, recall that Trump tried to repeal Section 230 through his executive branch powers via the anti-230 EO. Then he tried to coerce the legislative branch to repeal it by vetoing the NDAA, nonsensically telling our country’s soldiers that they didn’t deserve raises so long as Section 230 remained good law. Weirdest fucking approach to #SupportTheTroops I’ve ever seen. Now, Trump wants the judicial branch to do what he failed to do via the executive and legislative branches. Maybe he’s a fan of judicial activism after all.

I’m especially confident about the lawsuits’ lack of merit based on a paper I will be posting in the next few weeks. I reviewed all of the court rulings where users sued Internet services for terminating their accounts or removing their content–a total of 61 court rulings over the past 2 decades. From the article:

Internet service defendants win lawsuits challenging their termination/removal decisions. Every case in the dataset that reached a dispositive outcome had a defense-favorable resolution. Furthermore, defendants achieve those favorable outcomes early in the litigation lifecycle. About 90% of the cases resolved in the defense’s favor on a motion to dismiss (or a similarly early procedural stage, such as a demurrer or anti-SLAPP motion) rather than a later procedural stage, such as on summary judgment or after a trial.

If you think Trump will somehow achieve better legal outcomes than the dozens of failed cases that precede them, you probably also bought Trump steaks.

The fact that Internet services win on motions to dismiss undercuts the chatter online that Trump’s lawsuits expose him to a gifted litigator filleting him in a juicy tell-all deposition. Let those fantasies go. The Internet services care about winning the case and staving off business-ending regulation from Congress and the states, not about being the only entity to impose accountability on Trump (reminder: Twitter did more to hold Trump accountable by terminating his account than the executive, legislative, and judicial branches combined). The Internet services will not see any profit or upside in pursuing discovery. Instead, here’s what I think will happen:

Step 1: Trump sues the services in Southern District of Florida.

Step 2: the services file motions to transfer to Northern District of California based on the mandatory venue clauses in their TOSes. I suspect the services like the assigned judges in SD Fla, but they may prefer to have appeals go to the 9th Circuit (which has the Prager U v. YouTube precedent holding that YouTube isn’t a state actor) rather than the comparatively unknown 11th Circuit.

Step 3: once transferred to ND Cal, the services will immediately file motions to dismiss. They won’t tarry with discovery, which would cost money and string out the case to produce information they don’t need to win their cases.

Step 4: the ND Cal courts grant the motions to dismiss, citing many of the 61 cases in my article’s database.

Step 5: Trump appeals to the Ninth Circuit, which cites the Prager U precedent extensively in affirming the lower courts.

Step 6: Trump appeals to the Supreme Court. Justice Thomas votes to grant certiorari. Not sure about the other 8 judges. This should be years from now, so who knows where everyone will be at that point? Will Trump still be un-incarcerated by then?

Note that if the case ever gets that far (it won’t), there’s no way it can proceed as a class action. Content moderation decisions are too idiosyncratic and fact-specific to support class adjudication.

While I won’t fact-check the whole complaint, I want to circle two especially brain-melting points:

  • From the Twitter complaint: “President Trump would discuss government activity on Twitter in his official capacity as President of the United States with any User who chose to follow him….Plaintiff’s Twitter account became an instrument of his presidency….Plaintiff utilized his Twitter account in his official capacity as President.” DAFUQ? The DOJ appealed the Knight Foundation v. Trump case to the Supreme Court on the basis that the @RealDonaldTrump Twitter account was Trump’s personal account, not an official government account. The DOJ embarrassed itself taking this position; but it’s thoroughly mockable now that Trump himself insists his Twitter account was an official government account. Talk about throwing the DOJ under the bus. As the expression goes, Trump turns on everyone eventually.
  • The Twitter complaint claims that federal actors are benefiting from Twitter “[b]oosting the CDC’s highly questionable reputation as reliable and authoritative in its factual and policy determinations.” If you had to choose only one reason, what would you select as the single biggest reason that the CDC’s reputation declined in the past 5 years?

I will take no joy in watching these lawsuits fail. They are a symptom of the enormous efforts being made to burn down the Internet. The pro-censorship forces will keep stress-testing every institution until they succeed, and the courts’ rejection of these lawsuits won’t abate those efforts.

If you want more on why I’m scared for the Internet’s future, check out my interview with Michael Smerconish.

Complaint details: