No one, except maybe Donald Trump and his inner circle, expected the ex-president’s legal challenge to Twitter’s permanent ban on him — on First Amendment grounds — to succeed. But now a federal judge has officially dismissed the suit.
Trump, joined by the American Conservative Union and five individuals, sued Twitter (and then-CEO Jack Dorsey) in July 2021 in a class-action lawsuit claiming they were “censored” by the service — in the case of Trump and others, by Twitter’s outright ban. Trump’s lawsuit had asserted that Twitter — as well as Facebook and Google, which Trump also sued — are actually “government actors,” and that they are therefore bound by the First Amendment’s prohibition against abridging freedom of speech.
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But Judge James Donato of U.S. District Court for the Northern District of California rejected that idea.
For starters, “The First Amendment applies only to governmental abridgements of speech, and not to alleged abridgements by private companies,” Donato pointed out in the May 6 decision. Regarding the argument that Twitter was somehow a “state actor,” he wrote, the Trump lawsuit “does not plausibly allege that Twitter acted as a government entity when it closed plaintiffs’ accounts.” (Read a copy of the ruling at this link.)
The lawsuit also sought to have Section 230 of the Communications Decency Act — which grants internet companies legal protections for content shared on their services and allows them to moderate their platforms as they see fit — declared unconstitutional, and asserted that Section 230 “significantly encouraged defendants’ censorship of the plaintiff and the putative class members.”
Donato struck down those arguments as well. “The government cannot plausibly be said to have compelled Twitter’s action through Section 230, which in any event imposed no affirmative obligations on Twitter to act in any particular way. Consequently, the amended complaint does not plausibly allege a First Amendment claim against Twitter,” he wrote. The claim for a declaratory judgment that Section 230 is unconstitutional “is dismissed for lack of standing,” per the judge’s ruling.
Twitter banned Trump permanently on Jan. 8, after the deadly attack on the U.S. Capitol two days prior, citing the risk of ongoing violence if the then-president were allowed to remain on the social network. Other services, including Facebook and YouTube, followed suit in deplatforming Trump.
Last year Trump formed Trump Media & Technology Group, hiring former GOP congressman Devin Nunes as CEO, and in February launched Truth Social, a virtual copycat of Twitter that claims it is “free from political discrimination.” Trump is currently listed as having 2.6 million followers on Truth Social (which calls posts in the app “Truths”). When Trump was banned from Twitter, he had more than 88 million followers.
The ruling against Trump comes as billionaire Elon Musk is poised to acquire Twitter in a $44 billion deal, having continued to line up financing for the acquisition including from Oracle co-founder Larry Ellison, Prince al-Waleed bin Talal of Saudi Arabia and cryptocurrency exchange Binance.com.
Musk, like Trump, has complained that Twitter has “censored free speech,” and he has vowed to force the social network to adhere to principles of free speech as defined by governments.
Coincidentally, also Friday, Musk shot down a claim by Nunes that Trump “encouraged” Musk to buy Twitter to “take on these tech tyrants.” Musk said that was false, saying he has had “no communication” at all with Trump and pointing out that the ex-president has claimed he won’t rejoin Twitter even if Musk successfully closes the deal.
Trump’s lawsuits against Meta Platforms (Facebook’s new corporate name) and Google’s YouTube, both similarly alleging First Amendment violations, remain pending in the U.S. District Court for the Northern District of California. It’s hard to see how the outcome in those cases could be any different than in the Twitter litigation.
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