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Trump Seeks Injunction Restoring Him To Twitter

Trump Seeks Injunction Restoring Him To Twitter

Motion: “Defendant’s censorship of Plaintiff became state action for First Amendment purposes when it resulted from “the State’s exercise of ‘coercive power,’ . . . All three factors—coercion, significant encouragement, and willful participation in joint activity—are in operation here.”

In July 2021, Donald Trump sued Twitter, Facebook, and YouTube, over his removal from those platforms. The lawsuits were in the form of class actions seeking relief for Trump and others similarly situated.

There are motions by the defendants in all three cases to transfer the cases to the Northern District of California, where those tech giants are headquartered, based on forum selections clauses in the user agreements. None of those transfer motions has been decided.

On July 27, 2021, Trump filed a First Amended Complaint in the Twitter case. One of the hurdles Trump has is that he asserts constitutional First Amendment claims, and to do that, he needs to show that Twitter was engaged in government action. Trump seeks to get around this by asserting that Twitter was acting under pressure from Democrats in Congress and thus was a government actor.

On October 1, 2021, Trump filed a Motion for a Preliminary Injunction in the Twitter case:

Pursuant to Rule 65 of the Federal Rules of Civil Procedure, Plaintiff Donald J. Trump (“Plaintiff”) respectfully moves for a preliminary injunction directing, inter alia, Defendant Twitter, Inc. (“Defendant” and “Twitter”), and all persons acting in concert with Defendant, to reinstate Plaintiff’s access to Defendant’s social media platform(s).

Coerced by members of the United States Congress, operating under an unconstitutional immunity granted by a permissive federal statute, and acting directly with federal officials, Defendant is censoring Plaintiff, a former President of the United States. On January 8, 2021, Defendant indefinitely banned Plaintiff from its platform, a major avenue of public discourse. Defendant’s censorship and prior restraint of Plaintiff’s speech violates the First Amendment to the United States Constitution and likewise violates Florida’s newly enacted Stop Social Media Censorship Act (“SSMCA”).

Defendant exercises a degree of power and control over political discourse in this country that is immeasurable, historically unprecedented, and profoundly dangerous to open democratic debate. Defendant not only banned Plaintiff from its platform, but also extended its prior restraint to innumerable Users who post comments about Plaintiff. As Professor Alan M. Dershowitz opines: “[p]laintiff’s right to speak freely has been seriously compromised by… Twitter. Moreover, the rights of his audience to have access to his views have also been curtailed.” (Declaration of Alan M. Dershowitz, dated July 1, 2021 (“Dershowitz Decl.”) annexed hereto as Exhibit A, ¶ 6.)

Defendant’s censorship of Plaintiff became state action for First Amendment purposes when it resulted from “the State’s exercise of ‘coercive power,’ . . . when the State provided ‘significant encouragement, either overt or covert’” in Plaintiff’s censorship, or when Defendant acted as a “willful participant in joint activity” with the state in censoring Plaintiff. United Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n. 531 U.S. 288, 296 (2001) (Thomas, J., dissenting) (citations omitted). All three factors— oercion, significant encouragement, and willful participation in joint activity—are in operation here. Defendant’s censorship of Plaintiff evidences a pattern of content and viewpoint-based prior restraint, carrying the heaviest presumption against constitutional validity, and violates Florida’s newly enacted SSMCA.

Thus, on both constitutional and state law grounds, Plaintiff is entitled to an injunction requiring Defendant to reinstate Plaintiff’s access to his account(s) with Defendant.

You can read the Dershowitz Declaration, as well as Declarations by Jaclyn Homberg. Corey Lewandowski , and Christl Pitre Mahfouz. The remaining attachments to the motion (over 100) are mostly news articles reflecting the pressure on Twitter and how Twitter censorship has included information that turned out to be true.

The argument that Twitter has become a state actor, at least for the purpose of removing Trump, starts at page 4 of the motion (page 10 of the pdf.), is that government officials coerced Twitter to act:

Since 2019, Democrat members of the United States Congress, as well as now-President Joe Biden, have subjected social media companies and their CEOs, including Defendant, to increasing pressure to censor speech disfavored by them, and to promote their favored speech, or else face catastrophic legislative and/or regulatory consequences. (Homberg Decl. ¶¶ 6, 23-25.) On or about April 10-11, 2019, Speaker of the House Nancy Pelosi warned that a “new era” of regulating social media was coming and that Section 230 could be “in jeopardy.” (Homberg Decl. ¶ 26.) Speaker Pelosi further commented that “the era of self-regulation” in this country for social media companies is “probably” over, and that “[w]hen we come to 230, you really get their attention . . . it is not out of the question that that could be removed,” because “for the privilege of 230, there has to be a bigger sense of responsibility on it.” (Homberg Decl.¶ 27.) (See examples of coercive statements by Chairman Schiff, President Biden, Speaker Pelosi, Congressman Raskin, and Sen. Blumenthal) (Homberg Decl. ¶¶ 28- 35.)

Coercion exerted by Congress on Defendant, and the other social media companies, has become more intense recently. In early October of 2020, the House Judiciary Committee specifically found that the social media companies had monopoly power in their markets and proposed breaking up those companies under either existing federal antitrust law or under proposed reforms thereto. (Homberg Decl. ¶ 25.) Chairman Frank Pallone, Jr.’s opening statement from a March 25, 2021, House Energy and Commerce Committee hearing revealed that a principal topic of the hearing was the “role” of “Facebook, Google, and Twitter” in “spreading disinformation” and extremism.” (Homberg Decl. ¶¶ 39, 40.)

As a result of the coercive pressure created by Congress and the Executive Branch, Defendant censored Plaintiff. As such, Plaintiff’s censorship was an unconstitutional deprivation of Plaintiff’s free speech, in that the censorship was in response to government coercion.

There are other claims in the motion of illegal conduct by Twitter, but Twitter becoming a state actor is the heart of it. There’s certainly evidence that Twitter and other Big Tech is acting on the prompts of the Biden administration, as we have covered, Psaki Admits Biden Admin Colluding With Big Tech to Flag ‘Disinformation’.

Unless additional evidence is provided, however, I’d be surprised if a court concluded that Twitter or the other Big Tech giants are legally coerced by the government.

The Court also is likely to consider the requested relief a possible violation of Twitter’s own First Amendment right not to have to host content it doesn’t want. That was a basis on which a Federal Judge Halted Florida Law Taking On Big Social Media.

Big Tech aligning with Democrats more likely will be viewed by a court as a marriage of convenience, not coercion. They both hate Republicans, and Conservatives, and Trump most of all, and they use their collective oligopoly power to help Democrats. That’s a real problem, but convincing a judge it’s state action is another thing.

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Comments

I don’t care. Lawfare works in both directions.

theduchessofkitty | October 2, 2021 at 9:27 pm

Don’t bother, man. Don’t try to rejoin them.

As Cornelius Vanderbilt said to two men who defrauded him in a big investment, “I’m not going to sue you. The courts take too long. I’m going to RUIN YOU!”

And you know what? He did.

Do the same thing, Mr. President. Destroy them! Ruin them! The sweeter the revenge.

    JohnSmith100 in reply to theduchessofkitty. | October 3, 2021 at 9:54 am

    Even if Trump does not win this, he is fanning the flames of resentment these arrogant companies are causing with their high handed conduct. His lawsuit is getting lots of press.

    Yes, I agree. Suing them is simply an admission of their power and of the superfluousness of their competitors Gab, GETTR, Parler, et al.

    He would do much better to choose an alternative and promote that instead.

Twitter is junk. We just need better in this country, and everyone who posts unintelligent hot takes there should be docked at their job…or maybe the Dems can make it a tax? They are always looking for those.

Defendant exercises a degree of power and control over political discourse in this country that is immeasurable, historically unprecedented, and profoundly dangerous to open democratic debate.

Key point IMHO.

There has never been anything remotely like Twitter. Or Facebook. Or YouTube. Etc. Not even close.

We are in uncharted waters and power far beyond what the Founding Fathers could have ever imagined is at stake.

Twitter is a cesspool, Dorsey is a Marxist POS, and there isn’t a court in this land that will rule against either at his point in time.

I understand the principles of why, but this is one big waste of time and resources.

The suit is frivolous. Even if a government agency had directly ordered Twitter to do this, that would make the ban state action, but it wouldn’t make Twitter a state actor. Twitter is still not bound by the first amendment, so there would be no grounds for a court to order it to reopen the account; the proper defendant would be the agency that gave the order, and the proper remedy would be an injunction against that agency to withdraw the order.

And of course that isn’t what happened here. There was pressure, sure enough, but it seems to have come mostly from Congress, which is not answerable to the courts. If Pelosi told Twitter that unless it banned Trump the House was likely to pass legislation harmful to it, that’s not something any court can touch. A court can’t tell the House not to pass such legislation. And it can’t tell Pelosi to stop making such threats.

    mailman in reply to Milhouse. | October 3, 2021 at 7:43 am

    There it is people, Lord Justice Know It All has passed judgement 🤣🤣

      The Friendly Grizzly in reply to mailman. | October 3, 2021 at 10:25 am

      We don’t have Lords here; we are not subjects like you are. Now go bow to your betters.

      You may not agree with Milhouse, and quite often I don’t but that snotty attitude is not called for.

    It appalls me that our best legal minds can’t find the words to frame an argument that would save our constitution. It appalls me even more that so many don’t even think it is worth trying. The only thing standing in the way of our constitutional rights these days is the legal system that ignores it.

    We know what our rights are and that it is not the government that grants them. Losing our rights because our lawyers can’t frame the proper arguments or because our language has been rendered meaningless or because our courts are too corrupt is NOT an option. We simply cannot lose this fight. Capiche? Get with the program! You are NOT a lawyer! Give it up already you idiot!

      Milhouse in reply to Pasadena Phil. | October 3, 2021 at 10:07 am

      You’re incoherent. No, of course it is not the government that grants our rights. Who suggested that it was? But the right of free speech only exists against the government. There is no such right against a private actor. Trump has no right to a Twitter account, if Twitter doesn’t want to give him one, just as none of us has a right to an LI account if Prof J doesn’t want to give us one.

        Clueless. You miss the entire point of my post.

        Danny in reply to Milhouse. | October 3, 2021 at 6:06 pm

        You are dead wrong. Common carriers are not permitted to discriminate based on view. Government has regulations for the public good to secure our rights against big corporations and keep our society from turning into an oligarchy.

        Stop pretending it is 1650 and regulation of corporations isn’t a thing. Section 230 is a special regulation to benefit what today are the wealthiest monopolies ever created.

        It was never the idea of the founding fathers that all speech in this country to be heard must meet with the approval of one of a tiny number of entrenched monopolies and our country actually has a history of monopoly busting.

        Marsh v Alabama has also set limits on corporations trying to exert control.

          Milhouse in reply to Danny. | October 4, 2021 at 12:50 am

          Twitter is not a common carrier.

          And no, Section 230 is not a special regulation. The protection it affords is required by the constitution. It is unconstitutional to hold a distributor liable for speech that it did not make and had no reason to know was illegal.

          Milhouse in reply to Danny. | October 4, 2021 at 12:54 am

          Oh, and Marsh v Alabama together with its progeny such as Pruneyard v Robins are abominations.

    Danny in reply to Milhouse. | October 3, 2021 at 6:13 pm

    You make a good points but the 1st amendment has evolved constantly since the Constitution was written and evolving to where government pressure to act as an enforcement arm of one side of the political spectrum being limited is a possible evolution.

    Pornography is covered by the 1st amendment. That is a very recent evolution.

      Milhouse in reply to Danny. | October 4, 2021 at 12:56 am

      Ah, the Living Constitution! No, Danny, the constitution is dead, dead, dead. It means now exactly what it meant when it was ratified. And pornography was always covered, whether people acknowledged that or not. There’s no way to read the words and find an exception for it. Of course at that time it didn’t apply to the states.

        Danny in reply to Milhouse. | October 4, 2021 at 11:10 am

        There are some posts of yours I can’t directly respond to but

        1. Whatever your interpretation of the constitution going forward it most definitely has evolved. The 1st amendment today has almost nothing in common to what it meant when written. Pornography was most definitely not covered the dominant legal advice in the 20th century to a porn guy who was going to the supreme court was that you would lose badly and porn winning in the supreme court was not a shock but the shock. The issues have also changed. Today there are corporations controlling your life with power that dwarfs what Standard Oil had (and what did we do to standard oil for being too big? Oh right we broke it up). It isn’t just the 1st either. Miranda rights are not named after an 18th century legal scholar but a criminal who became the first beneficiary of them by appealing to the supreme court. Birthright citizenship? That was created by a rules change by the federal government not by the constitution (if you had claimed an illegal granted his children birthright citizenship in 1890 you would have been laughed at and your claim would never have gotten anywhere near the supreme court). I could go on but in practice yes the constitution has evolved and would be about as recognizable to George Washington as a tiny number of leftist billionaires owning the public square with absolute power over it.

        2. Section 230 is he definition of a government regulation to benefit them. Without it they are publishers with all the legal and moral obligations of a publisher.

        3. They are as much a common carrier as your phone company

        You seem to be against any regulation unless it is in order to benefit corporations. Verizon does just fine being regulated as the common carrier it is, and nobody is hurt by updating the law to reality in order to avoid turning into an oligarchy which America is well on the way towards doing.

        4. Marsh v Alabama was one of the finest decisions the supreme court has ever made.

    caseoftheblues in reply to Milhouse. | October 3, 2021 at 7:25 pm

    And there he is…shaking his pompoms as hard as he can for his twisted version of “law”. Seriously Milhouse..look in the mirror…you are EXACTLY why lawyers are depised.
    And as to your so called points. You are woefully ignorant…per ususual….of what transpires between social media companies and Democrats. Do your research.

    That’s probably about right. There are 1st amendment argument on both sides here, and probably more so on behalf of Twitter and Facebook than on behalf of Trump. Maybe a lost cause, but if Trump is just filing this lawsuit on principle, I can respect that.

Ty Professor for going deep into the weeds on this case. I may not like your conclusion, but I do use it as my own legal compass. What goads me is that I have seen (accidentally) straight forward pornography on twitter, but that is ok… SMH. Cesspool is an understatement.

How can it be coercion when they all willingly acted together to censor voices they don’t like.

Why President Trump Why

As usual, Trump is correct. As usual, it is one man against The Swamp. Bet on The Swamp.
Credit to Trump for fighting.

    mailman in reply to lichau. | October 3, 2021 at 4:05 pm

    Sorry, but Millhouse has already declared this case as frivolous. Let’s hope someone else has a go eh 🤣

    Danny in reply to lichau. | October 3, 2021 at 6:01 pm

    Trump only cared about this issue after big tech went after him personally, when it was just everyone else on the right he was fine with them. Stop hero worshipping him.

Trump should have taken Tucker Carlson’s advice and acted on this issue when he had the chance.

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