The lawsuits against the companies and CEOs Mark Zuckerberg, Jack Dorsey and Sundar Pichai come as Trump remains suspended from Facebook, Twitter and YouTube over his praise of supporters who perpetrated the deadly Jan. 6 riot at the Capitol.
"I stand before you this morning to announce a very important and very beautiful, I think, development for our freedom," said Trump, speaking on Wednesday alongside the leaders of the pro-Trump America First Policy Institute. Trump said he would be the lead plaintiff in a class action seeking an injunction, punitive damages and "prompt restitution" in federal court.
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Trump often asserts that companies cannot silence users for their political beliefs, and insists that the major social media sites are doing that to conservatives. But free speech rights in the U.S. only stop the government, not private companies, from shutting down people's views, and the social media sites, which have been key to the spread of Trump's movement, deny their content moderation is partisan. U.S. law also immunizes online firms from lawsuits over the third-party content they remove as a way to incentivize the takedown of violent, threatening and horrific content.
For that reason, experts say the suits are almost certainly destined for failure. "Trump's suit is DOA," said Paul Barrett, deputy director of the NYU Stern Center for Business and Human Rights said in a statement. "In fact, Facebook and Twitter themselves have a First Amendment free speech right to determine what speech their platforms project and amplify—and that right includes excluding speakers who incite violence, as Trump did in connection with the January 6 Capitol insurrection."
Yet Trump, who repeatedly violated the sites' user agreements, has insisted the companies must be punished for alleged misdeeds. During his presidency, he frequently pushed Republicans in Congress to repeal the websites' immunity under Sec. 230 of the Communications Decency Act, signed an order urging agencies to pare the protections, unsuccessfully vetoed the defense authorization because it didn't repeal the law and issued all manner of threats.
"We're going to hold big tech very accountable," said Trump, who routinely threatens lawsuits and gains publicity from the claims without following through on them. "This is the first of numerous other lawsuits, I assume, that would follow."
The suits aim to find a workaround to the fact that tech companies are private entities by framing them as extensions of Congress, arguing that pressure from congressional Democrats led them to make the content moderation decisions they made.
Talks in Congress regarding ripping out Sec. 230, which has detractors on both sides of the aisle, collapsed as it became clear that Republicans and Democrats wanted different things. President Joe Biden, nominally a critic of the law himself, revoked Trump's order.
"We're going to make sure that the liability protections that they have under Sec. 230 is, at a very minimum, changed and maybe at a maximum taken away," Tump claimed.
In his post-presidency, Trump also had a short-lived blog, and so far appears to have stayed off Gettr, the social media site from former top aide Jason Miller. Miller's site explicitly claimed rights to moderate content in its terms of service, in terms reminiscent of Sec. 230.
Plenty of Democrats have balked at the power of Big Tech companies, including their ability to squash speech, particularly internationally where countries use that power to shut up dissent. And it's certainly true that Trump has been booted, for now, from major platforms for his violations.
Yet the idea of suing the social media sites over alleged censorship is hardly new and is rarely successful. Plaintiffs with lower public profiles than Trump have insisted that sites like Facebook function so much like a government that they can't shut people down. Conservative Supreme Court Justice Clarence Thomas has also floated regulating Facebook and Twitter as utilities that are so crucial to modern communications that they shouldn't be allowed to discriminate against customers. Even Republican Florida Gov. Ron DeSantis signed a law to use the power of the state to force companies to keep up content they would otherwise suppress.
During a speech reminiscent of his campaign rallies that touched on Trump's many political grievances and his handling of the coronavirus pandemic, Trump claimed on Wednesday that the companies had ceased being private entities.
Yet the Florida law was blocked last week, at least temporarily, and as recently as 2019, the Supreme Court said that free speech guarantees mean private companies can exercise control over the content they carry.