In a move familiar to anyone who has witnessed a schoolyard bully react to being thrown out of a game for violating the rules, former President Donald Trump is lashing out.
Trump’s primary problem in this lawsuit is, well, the law.
Trump on Wednesday announced that he is suing Facebook, Twitter and Google-owned YouTube, as well as their respective CEOs for, well, following their own rules and kicking him off their platforms. He’s done so on behalf of himself and “similarly situated” people in an attempt to wage a class-action suit against the social media giants.
Trump’s primary problem in this lawsuit is, well, the law.
The suit is predicated on the assumption that in booting Trump, these companies violated his First Amendment rights. The First Amendment provides that “Congress shall make no law … abridging the freedom of speech.” This prohibition applies not just to Congress (and federal laws), but also to all government representatives and agents. This means that someone who is a member of any level of government — local, state or federal — cannot restrict your freedom of speech (with some limited exceptions).
Trump’s main difficulty here is that Facebook, Twitter and Google, while indisputably powerful, are private companies, not part of the government. When social media companies act, it is a private action, not government action. Facebook, Twitter and Google by definition can’t trample on your First Amendment rights because only the government, and not corporations, can do so.
Surely, you say to yourselves, the former president of the United States and his lawyers must know about this fundamental flaw in their lawsuit? Well, yes — but Trump attempts to argue that the companies should be treated as state agencies who can, in fact, violate their individual users’ First Amendment rights.
Namely, the suit claims because these companies benefit from the protections of a federal law, the 1996 Communications Decency Act, that Democratic legislators (who are, in fact, state actors) had special leverage over Facebook, Twitter and Google. Trump then argues that because the companies “are vulnerable to and react to coercive pressure from the federal government to regulate specific speech,” they were coerced into “censoring the specific speech at issue in this lawsuit and de-platforming” him. And, the suit continues, making a reference to the Centers for Disease Control and Prevention, that because the companies were “acting in concert with federal officials, including officials at the CDC and the Biden transition,” their “censorship activities amount to state action.”
Facebook, Twitter and Google by definition can’t trample on your First Amendment rights because only the government, and not corporations, can do so.
Unsatisfied after introducing just one erroneous legal argument, Trump then specifically calls on the court to strike down Section 230 of the Communications Decency Act as unconstitutional. (It isn’t.)
The act, which dates back to 1996 when the internet was in its infancy, largely protects online sites from liability based on what their users say on those sites and for their decisions about content moderation.
None of this demonstrates that private companies have magically transformed into government actors. No, these arguments have enough holes to drive a Mack truck right through them.
In effect, Trump has inverted the First Amendment argument here. Facebook, Twitter and Google have their own First Amendment rights to set the terms of their platforms’ use, free of government intrusion. Each company is also free to exclude users from its platforms for things like, oh, let’s hypothetically say inciting an insurrection.
Let’s pause for a moment and remember that Trump was the leader of the federal government when he claims that the actions of private companies, who tossed them off their platforms, violated his First Amendment rights. (That ringing you hear is the sound of irony calling.) In effect, Trump has inverted the First Amendment argument here. So, Trump’s arguments are legally invalid and at times nonsensical. We have to ask ourselves: What is this lawsuit really about? It’s not about the law — it’s about politics. All 44 pages are just a political argument dressed in legal clothes. Facebook, Twitter and Google offered Trump a significant megaphone. In the span of a few days, he went from being able to broadcast his message with three of the world’s most powerful bullhorns to being reduced to a whisper. His rallies, packed as they may be, are no substitute for the reach of social media. Trump’s megaphone has not only been diminished, but perhaps just as important, his fundraising tools have also dulled. Social media platforms provided Trump with the easy ability to raise campaign donations directly and indirectly. Campaign rallies do not offer attendees the same ability to “click here to make a donation.” And if you wondered whether this is all really about raising political donations, take a gander at the fundraising pleas that GOP committees sent out moments after Trump filed his suits. We should all recognize that these suits are unmoored from any cognizable theory. They will not succeed in courtrooms. But will they succeed in further persuading Trump’s base that Big Tech companies have engaged in a conspiracy against Trump and other Republicans? Maybe. And that is a problem that can’t be solved by a federal judge dismissing these suits.
Jessica Levinson is a Loyola Law School professor and MSNBC columnist. 
