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Trump’s First Amendment Gambit Unlikely to Work

A flawed lawsuit against the social media giants that booted him after Jan. 6.
July 14, 2021
Trump’s First Amendment Gambit Unlikely to Work
Trump during a commercial break of a Fox News virtual town hall "America Together: Returning to Work," event from the Lincoln Memorial in Washington, DC on May 3, 2020. (Photo by JIM WATSON/AFP via Getty Images)

Given his utter ignorance about the U.S. Constitution, it remains shocking that Donald Trump was—as recently as half a year ago!—charged with preserving, protecting, and defending it. The latest evidence of his appalling constitutional ignorance comes in the form of a series of frivolous lawsuits that reveal an embarrassingly distorted understanding of our national charter. At least this legal mess has one silver lining: It’s an opportunity for another mini-lesson in basic civics.

Last week, Trump filed class-action complaints in a Florida federal court against YouTube, Twitter, Facebook, and their respective CEOs, claiming that the private companies’ decisions to suspend his social media accounts in the wake of the January 6 insurrection violate, among other things, the First Amendment. In a press conference, Trump called his lawsuits “a very important and beautiful development for our freedom of speech.” If these companies can do this to a president, Trump added, “they can do it to anyone.”

Here’s the glaringly obvious problem: With rare exceptions, the First Amendment doesn’t bind private companies. It applies to the state. As with most of the rest of the Bill of Rights, and indeed much of the Constitution in general, the point is to limit the massive power of the government. The Framers (understood broadly to include the authors of the Bill of Rights) understood exquisitely that people with the power of government tend to abuse it and so power must be limited and checked and balanced.

Thus, when Trump was president, his actions were bound by the First Amendment because he had at his fingertips the massive power of the federal government: its criminal justice, military, and regulatory apparatuses. Companies like Google (YouTube’s parent), Twitter, and Facebook are not restrained by the First Amendment; to the contrary, they can sue executive branch officials to validate their own First Amendment rights.

Undeterred, Team Trump alleges in its complaints that the defendant corporations have “accumulated an unprecedented concentration of power, market share, and ability to dictate our nation’s public discourse,” and have “increasingly engaged in impermissible censorship,” culminating in decisions to “indefinitely ban[] the sitting President of the United States from [their] platform[s] for exercising his constitutional right of free speech.”

(Trump’s argument about the companies’ “unprecedented concentration of power” and “market share” is richly ironic considering that, when he was president and possessed the power to enforce federal antitrust laws, an April 2020 report by the American Antitrust Institute concluded that “key metrics of cartel and merger enforcement . . . declined since the Trump administration took over,” and “in 2017 and 2018, the [Department of Justice] did not open one monopolization investigation, the longest span of inattention to dominant firms in the last 50 years.” Eventually, in 2020, Trump’s DOJ did join eleven states in suing Google under the Sherman Act, the leading federal antitrust statute.)

Buried in Trump’s class-action complaints is a tacit acknowledgement that Trump has no First Amendment claim against private companies unless he can show that the defendants are “state actor[s]” whose actions can be legally tied to the government itself. “In censoring the specific speech at issue in this lawsuit and deplatforming Plaintiff,” his lawyers allege, the tech companies “were acting in concert with federal officials, including officials at the CDC and the (Biden) White House.”

Let’s unpack this a bit. There is such a thing in the law as the state action doctrine, which (as I’ve explained in my academic scholarship) “asks whether private parties should be treated as government actors susceptible to liability for violations of individual constitutional rights.” Courts tend to overwhelmingly reject state action claims because the standard requires evidence of the government’s compulsion of, control over, or participation in a private party’s actions, which is very hard to prove.

In other words, Trump needs to show that the likes of Mark Zuckerberg were virtually compelled by the federal government to ban Trump from their platforms. Somewhat inconveniently, Facebook’s initial Trump ban occurred on January 7, 2021, when Trump was still president. So he appears to be arguing that his own administration controlled Facebook, YouTube, and Twitter to such a degree that those companies should be treated as the government itself for purposes of Trump’s First Amendment lawsuits against them.

On Fox, Trump defender and former Harvard criminal law professor Alan Dershowitz irresponsibly called this litigation “the most important First Amendment case of the twenty-first century.” It’s a “new form of censorship,” Dershowitz declared, because the high-tech giants are claiming that they are the ones with the First Amendment right to decide what speech to allow on their platforms.

This silliness is enough to make your head spin. Trump’s lawyers are apparently willing to push the envelope of legitimate, ethical advocacy because Trump pays to play the litigation card to his political benefit. Sixty-plus garbage lawsuits were filed over the Big Lie regarding the 2020 presidential election, culminating in the recent suspension of former Trump lawyer Rudy Giuliani’s license to practice law in the state of New York—and the Big Lie lives on.

Meanwhile, President Joe Biden just issued an executive order aimed at promoting competition—a move motivated by very different concerns from Trump’s complaint about having been censored, but overlapping in the belief that certain corporations have too much power these days. Among the aims of the executive order: limiting non-compete agreements that make it difficult to change jobs, banning excessive internet termination fees, making it easier to take financial data from one bank to another, and directing DOJ and the Federal Trade Commission to enforce the antitrust laws more vigorously. There is much that could be said about the strange political bedfellows in the national debates about our big technology companies.

Meanwhile, Trump’s class action lawsuits will likely be dismissed—but not without confirming his admirers in their belief that Trump is, once again, a victim of conspiring evil forces. But if you want to see a real threat to our constitutional system, just review the ignominious record of Trump’s presidency and his abuses of power. Far more than the actions of the tech firms struggling with decisions about moderation on their platforms, the Trump model of governing—and the possibility of his returning to office—is the real menace to our Constitution.

Kimberly Wehle

Kimberly Wehle is a contributor to The Bulwark. She served as an assistant U.S. attorney and an associate independent counsel in the Whitewater investigation. She is currently a professor at the University of Baltimore School of Law. An ABC News legal contributor, she is the author of three books with HarperCollins: How to Read the Constitution—and Why, What You Need to Know About Voting—and Why, and, most recently, How to Think Like a Lawyer and Why—A Common-Sense Guide to Everyday Dilemmas. Her new book, Pardon Power: How the Pardon System Works—and Why, is forthcoming in September 2024 from Woodhall Press. @kimwehle.