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.DONATE
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