Trump’s Big Tech lawsuits are absurd and also contain lies
When former President Donald Trump’s lawyers go to court these days, they aren’t so much worried about winning their case as they are about losing their law license while they desperately hunt for some way to satisfy their client’s legally absurd demands without violating the rules of legal ethics. This isn’t an easy tightrope to walk. Just ask Rudy Giuliani. Sadly, Trump’s new lawyer in Florida, Matthew Baldwin, seems to be picking up where Giuliani left off.
Trump filed lawsuits Wednesday against YouTube, Twitter and Facebook, each purporting to be a class action. Each claimed that the defendant had violated the First Amendment and each claimed that Trump’s bête noire, Section 230 of the Communications Decency Act, is unconstitutional.
Even a cursory review of these lawsuits reveals big problems. The complaint in the Facebook lawsuit claims that on May 5, Rep. Adam Schiff, chair of the House Intelligence Committee, tweeted in reference to Donald Trump that “Facebook must ban him.” That’s true. Schiff did tweet that.
Doctored Schiff tweets
Here’s the tweet in full: “There's no Constitutional protection for using social media to incite an insurrection. Trump is willing to do anything for himself no matter the danger to our country. His big lies have cost America dearly. And until he stops, Facebook must ban him. Which is to say, forever.”
But in the lawsuit against Twitter, the very same tweet is quoted as saying: “There’s no Constitutional protection for using social media to incite an insurrection. Trump is willing to do anything for himself no matter the danger to our country. His big lies have cost America dearly. And until he stops, Twitter must ban him. Which is to say, forever.” (Emphasis added.)
In the YouTube lawsuit, the tweet has been doctored yet again to refer to YouTube.
Lying in a complaint is obviously a very bad thing and will get you sanctioned under Rule 11 in federal court. And it’s hard to spin altering a publicly available tweet – not once but twice, in two different lawsuits filed by the same attorney on the same day – as anything other than knowing and intentional.
Even worse than unethical and unprofessional, it’s an astoundingly stupid thing to do, especially in high-profile lawsuits like these.
Did Trump’s legal team really think that nobody would notice?
Things go downhill from there. The question isn’t whether this lawsuit is a winner (it isn’t) but whether the judge will use the f-word – frivolous – when dismissing it.
Trump makes two claims. First, that Twitter, Facebook and YouTube each is a “state actor” and, therefore, is bound by the First Amendment. Second, that Section 230 of the Communications Decency Act is unconstitutional.
Logically and legally bonkers
This is the law that prevents social media companies like Twitter from being treated as “publishers” and getting dragged into defamation lawsuits like the one filed by Rep. Devin Nunes, RCalif., against his, er, cow. It also allows them to moderate their users without being sued so long as they are acting in good faith.
The first claim is almost certainly wrong. The argument is that Twitter and the rest are state actors because they have been “pressured” by Democratic
politicians and threatened with regulation unless they “censored” Trump, a claim that’s both legally and factually dubious. Democrats controlled neither the Senate nor the presidency at the time and were not in a position to regulate anything, even if they had wanted to.
Moreover, there was far more pressure in the other direction. In fact, Trump himself signed an executive order purporting to regulate Twitter and other social media companies because Twitter was “censoring” the president by flagging some of his tweets. Nonetheless, there is a possible argument based on stretching Supreme Court precedent that overt governmental pressure and threats can turn private companies into public actors even absent actual legislation. While not a winner, I wouldn’t say this argument is frivolous.
But the second argument, that Section 230 is unconstitutional, is both logically and legally bonkers. It relies on statements like, “Defendants would not have deplatformed Plaintiff or similarly situated Putative Class Members but for the immunity purportedly offered by Section 230.”
This could not be less true. And, in fact, it underscores the silliness of Trump’s obsession with eliminating Section 230 in the misguided hope of restoring his social media accounts.
Court win is not Trump’s goal
The only reason that Trump was allowed to get away with what he did for as long as he did was because of the immunity provided by Section 230. If Twitter had not been shielded from liability for Trump’s statements – in other words, if Twitter had been treated as the publisher of Trump’s tweets – Twitter would have moderated Trump’s account out of existence sometime back in 2015.
What Section 230 actually does is allow internet platforms to host unfettered debates. If internet companies were potentially liable for everything their users posted, anything more controversial than pictures of puppies and kittens would be ruthlessly suppressed. If they wanted to remain in business, internet companies would have no choice.
So if these lawsuits are so factually and legally shaky, why did Trump file them? Good question. Except, possibly, for raising some money, these lawsuits aren’t going to achieve any of Trump’s goals. Then again, perhaps they already have. We’re talking about him again, aren’t we?
Republican Chris Truax, an appellate lawyer in San Diego, is a legal adviser for the Guardrails of Democracy Project, CEO of CertifiedVoter.com, a legal adviser and spokesman for Republicans for the Rule of Law, and a member of the USA TODAY Board of Contributors.