Former president Donald Trump filed a series of lawsuits against social media companies in a Florida federal court on Wednesday. Attorneys immediately began criticizing various aspects of the filings.
Many attorneys took issue with the headline media coverage of the 45th president’s intent to name himself the lead plaintiff in the putative class action lawsuits.
“This isn’t how it works,” complained attorney Janet Johnson via Twitter. “You don’t announce a class action lawsuit. He can’t be the lead plaintiff in a class that doesn’t exist. A class of presidents? This is just repeating nonsense.”
This isn’t how it works. You don’t announce a class action lawsuit. He can’t be the lead plaintiff in a class that doesn’t exist. A class of presidents? This is just repeating nonsense. https://t.co/x18nOB0T4e
— Janet Johnson (@JJohnsonLaw) July 7, 2021
First Amendment attorney Ari Cohn also trashed the Trumpian description:
Class action lol https://t.co/64ipBJXvYA
— Ari Cohn (@AriCohn) July 7, 2021
While courts are the ultimate arbiters of whether a class is certified — and while defendants in such lawsuits typically fight vigorously to deny class certification in order to limit their potential liability — announcements of would-be class actions are fairly common. In fact, legal organizations and law firms almost always announce their hoped-for class action lawsuits well before certification battles are hashed out via motions, arguments and counter-motions in court. But the bottom line is that class status is decided by the courts, not by the plaintiffs.
Commercial litigator Akiva Cohen, on the other hand, noted that there is certainly a potential avenue for class certification here:
Interestingly, neither Twitter nor FB have class-action waivers in their terms of service, which strikes me as a pretty huge omission for them, despite how immensely fucking stupid this suit will no doubt be. https://t.co/kLKlx58rL2
— Akiva Cohen (@AkivaMCohen) July 7, 2021
The lawsuits, which may or may not actually become class actions, were filed against Twitter, Facebook and YouTube in the U.S. District Court for the Southern District of Florida. Each complaint alleges First Amendment violations over Trump being banned from the platforms following the Jan. 6 attack on the U.S. Capitol Complex. Moderators determined that the former president’s posts spread misinformation and contained language that could have incited further violence.
Under longstanding Supreme Court jurisprudence, however, state action is required for a violation of the First Amendment to occur. The named defendants in the lawsuit are, of course, not the government.
Attorneys quickly keyed into that deficiency as to the merits:
“Congress” shall make no law … Trump and his lawyers need to read the first line of the First Amendment. His lawsuit complaining of censorship against private social media companies and their leaders is going nowhere. https://t.co/Va6vNhWxpO
— Barb McQuade (@BarbMcQuade) July 7, 2021
Don’t be taken in by the “what if it does” retort.
The “state action” doctrine is about as firmly embedded a principle of constitutional law as there is. To overturn it would have incredibly broad consequences — many of which the current Supreme Court would be loath to embrace.
— Steve Vladeck (@steve_vladeck) July 7, 2021
Trump aims to get around the “state action” requirement by claiming that each of his legal foes became something equivalent to what might be called limited-purpose government actors.
“Defendant Facebook has increasingly engaged in impermissible censorship resulting from threatened legislative action, a misguided reliance upon Section 230 of the Communications Act, 47 U.S.C. § 230, and willful participation in joint activity with federal actors,” one of the lawsuit says in language that is repeated throughout each of the filings. “Defendant Facebook’s status thus rises beyond that of a private company to that of a state actor. As such, Defendant is constrained by the First Amendment right to free speech in the censorship decisions it makes regarding its Users.”
Legal experts slammed that novel attempt to sidestep the law:
YouTube became a government actor because it censored posts touting hydroxycholoroquine as a miracle covid cure.
Sweet Fancy Moses pic.twitter.com/QOaJAOGATS
— Liz Dye (@5DollarFeminist) July 7, 2021
Others offered more constructive criticisms of the underlying legal claims and the power that Big Tech companies have over Americans:
For sure. And, for the record, I think there are some creative pathways to suing Bigtech. Maybe state law common carrier. But, to me, 1A claims are not one of them. If it takes this dumb Trump lawsuit to shut them down, groovy.
— Daniel B. Rodriguez (@DBRodriguez5) July 7, 2021
Trump’s lawsuit against Facebook raises legitimate issues about the monopoly power the corporation exercises over public discourse. Folks shouldn’t let their feelings about Trump distract from the reality that this monopoly power is a critical problem.
— Peter Pattakos (@peterpattakos) July 7, 2021
“This lawsuit is a stunt and it’s unlikely to find traction in the courts,” Jameel Jaffer, executive director of the Knight First Amendment Institute at Columbia University said in a statement provided to Law&Crime regarding the Facebook lawsuit. “The argument here that Facebook should be considered a state actor is not at all persuasive. It’s also difficult to square the arguments in the lawsuit with President Trump’s actions in office. The complaint argues that legislators coerced Facebook into censoring speech, but no government actor engaged in this kind of coercion more brazenly than Trump himself.”
“There is an important debate to be had about what kinds of obligations the First Amendment may impose on private actors that have so much influence over public discourse, and about how much leeway the First Amendment gives to Congress to regulate the activities of those private actors,” Jaffer continued. “But this complaint is not likely to add much to that debate.”
Aside from the unlikely claims advanced on the merits in each of the four lawsuits, there may also be a bit of a procedural hiccup:
Trump’s Twitter lawsuit also is filed in Florida. Twitter’s terms of service – which courts generally enforce – require that “all disputes related to these Terms or the Services will be brought solely in the federal or state courts located in San Francisco County.”
— Brad Heath (@bradheath) July 7, 2021
[image via Saul Loeb/ AFP/Getty Images]
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