It Can Always Get Dumber: Trump Sues Facebook, Twitter & YouTube, Claiming His Own Government Violated The Constitution

from the wanna-try-that-again? dept

Yes, it can always get dumber. The news broke last night that Donald Trump was planning to sue the CEOs of Facebook and Twitter for his “deplatforming.” This morning we found out that they were going to be class action lawsuits on behalf of Trump and other users who were removed, and now that they’re announced we find out that he’s actually suing Facebook & Mark Zuckerberg, Twitter & Jack Dorsey, and YouTube & Sundar Pichai. I expected the lawsuits to be performative nonsense, but these are… well… these are more performative and more nonsensical than even I expected.

These lawsuits are so dumb, and so bad, that there seems to be a decent likelihood Trump himself will be on the hook for the companies’ legal bills before this is all over.

The underlying claims in all three lawsuits are the same. Count one is that these companies removing Trump and others from their platforms violates the 1st Amendment. I mean, I know we’ve heard crackpots push this theory (without any success), but this is the former President of the United States arguing that private companies violated HIS 1st Amendment rights by conspiring with the government HE LED AT THE TIME to deplatform him. I cannot stress how absolutely laughably stupid this is. The 1st Amendment, as anyone who has taken a civics class should know, restricts the government from suppressing speech. It does not prevent private companies from doing so.

The arguments here are so convoluted. To avoid the fact that he ran the government at the time, he tries to blame the Biden transition team in the Facebook and Twitter lawsuits (in the YouTube one he tries to blame the Biden White House).

Pursuant to Section 230, Defendants are encouraged and immunized by Congress to censor constitutionally protected speech on the Internet, including by and among its approximately three (3) billion Users that are citizens of the United States.

Using its authority under Section 230 together and in concert with other social media companies, the Defendants regulate the content of speech over a vast swath of the Internet.

Defendants are vulnerable to and react to coercive pressure from the federal government to regulate specific speech.

In censoring the specific speech at issue in this lawsuit and deplatforming Plaintiff, Defendants were acting in concert with federal officials, including officials at the CDC and the Biden transition team.

As such, Defendants? censorship activities amount to state action.

Defendants? censoring the Plaintiff?s Facebook account, as well as those Putative Class Members, violates the First Amendment to the United States Constitution because it eliminates the Plaintiffs and Class Member?s participation in a public forum and the right to communicate to others their content and point of view.

Defendants? censoring of the Plaintiff and Putative Class Members from their Facebook accounts violates the First Amendment because it imposes viewpoint and contentbased restrictions on the Plaintiffs? and Putative Class Members? access to information, views, and content otherwise available to the general public.

Defendants? censoring of the Plaintiff and Putative Class Members violates the First Amendment because it imposes a prior restraint on free speech and has a chilling effect on social media Users and non-Users alike.

Defendants? blocking of the Individual and Class Plaintiffs from their Facebook accounts violates the First Amendment because it imposes a viewpoint and content-based restriction on the Plaintiff and Putative Class Members? ability to petition the government for redress of grievances.

Defendants? censorship of the Plaintiff and Putative Class Members from their Facebook accounts violates the First Amendment because it imposes a viewpoint and contentbased restriction on their ability to speak and the public?s right to hear and respond.

Defendants? blocking the Plaintiff and Putative Class Members from their Facebook accounts violates their First Amendment rights to free speech.

Defendants? censoring of Plaintiff by banning Plaintiff from his Facebook account while exercising his free speech as President of the United States was an egregious violation of the First Amendment.

So, let’s just get this out of the way. I have expressed significant concerns about lawmakers and other government officials that have tried to pressure social media companies to remove content. I think they should not be doing so, and if they do so with implied threats to retaliate for the editorial choices of these companies that is potentially a violation of the 1st Amendment. But that’s because it’s done by a government official.

It does not mean the private companies magically become state actors. It does not mean that the private companies can’t kick you off for whatever reason they want. Even if there were some sort of 1st Amendment violation here, it would be on behalf of the government officials trying to intimidate the platforms into acting — and none of the examples in any of the lawsuits seem likely to reach even that level (and, again the lawsuits are against the wrong parties anyway).

The second claim, believe it or not, is perhaps even dumber than the first. It asks for declaratory judgment that Section 230 itself is unconstitutional.

In censoring (flagging, shadow banning, etc.) Plaintiff and the Class, Defendants relied upon and acted pursuant to Section 230 of the Communications Decency Act.

Defendants would not have deplatformed Plaintiff or similarly situated Putative Class Members but for the immunity purportedly offered by Section 230.

Let’s just cut in here to point out that this point is just absolutely, 100% wrong and completely destroys this entire claim. Section 230 does provide immunity from lawsuits, but that does not mean without it no one would ever do any moderation at all. Most companies would still do content moderation — as that is still protected under the 1st Amendment itself. To claim that without 230 Trump would still be on these platforms is laughable. If anything the opposite is the case. Without 230 liability protections, if others sued the websites for Trump’s threats, attacks, potentially defamatory statements and so on, it would have likely meant that these companies would have pulled the trigger faster on removing Trump. Because anything he (and others) said would represent a potential legal liability for the platforms.

Back to the LOLsuit.

Section 230(c)(2) purports to immunize social media companies from liability for action taken by them to block, restrict, or refuse to carry ?objectionable? speech even if that speech is ?constitutionally protected.? 47 U.S.C. ? 230(c)(2).

In addition, Section 230(c)(1) also has been interpreted as furnishing an additional immunity to social media companies for action taken by them to block, restrict, or refuse to carry constitutionally protected speech.

Section 230(c)(1) and 230(c)(2) were deliberately enacted by Congress to induce, encourage, and promote social medial companies to accomplish an objective?the censorship of supposedly ?objectionable? but constitutionally protected speech on the Internet?that Congress could not constitutionally accomplish itself.

Congress cannot lawfully induce, encourage or promote private persons to accomplish what it is constitutionally forbidden to accomplish.? Norwood v. Harrison, 413 US 455, 465 (1973).

Section 230(c)(2) is therefore unconstitutional on its face, and Section 230(c)(1) is likewise unconstitutional insofar as it has interpreted to immunize social media companies for action they take to censor constitutionally protected speech.

This is an argument that has been advanced in a few circles, and it’s absolute garbage. Indeed, the state of Florida tried this basic argument in its attempt to defend its social media moderation law and that failed miserably just last week.

And those are the only two claims in the various lawsuits. That these private companies making an editorial decision to ban Donald Trump (in response to worries about him encouraging violence) violates the 1st Amendment (it does not) and that Section 230 is unconstitutional because it somehow involves Congress encouraging companies to remove Constitutionally protected speech. This is also wrong, because all of the cases related to this argument involve laws that actually pressure companies to act in this way. Section 230 has no such pressure involved (indeed, many of the complaints from some in government is that 230 is a “free pass” for companies to do nothing at all if they so choose).

There is a ton of other garbage — mostly performative throat-clearing — in the lawsuits, but none of that really matters beyond the two laughably dumb claims. I did want to call out a few really, really stupid points though. In the Twitter lawsuit, Trump’s lawyers misleadingly cite the Knight 1st Amendment Institute’s suit against Trump for blocking users on Twitter:

In Biden v. Knight 141 S. Ct. 1220 (2021), the Supreme Court discussed the Second Circuit?s decision in Knight First Amendment Inst. at Columbia Univ. v. Trump, No. 18- 1691, holding that Plaintiff?s threads on Twitter from his personal account were, in fact, official presidential statements made in a ?public forum.?

Likewise, President Trump would discuss government activity on Twitter in his official capacity as President of the United States with any User who chose to follow him, except for seven (7) Plaintiffs in the Knight case, supra., and with the public at large.

So, uh, “the Supreme Court” did not discuss it. Only Justice Clarence Thomas did, and it was a weird, meandering, unbriefed set of musings that were unrelated to the case at hand. It’s a stretch to argue that “the Supreme Court” did that. Second, part of President Trump’s argument in the Knight case was that his Twitter account was not being used in his “official capacity,” but was rather his personal account that just sometimes tweeted official information. Literally. This was President Trump appealing to the Supreme Court in that case:

The government?s response is that the President is not acting in his official capacity when he blocks users….

To then turn around in another case and claim that it was official action is just galaxy brain nonsense.

Another crazy point: in all three lawsuits, Donald Trump argues that government officials threatening the removal of Section 230 in response to social media companies’ content moderation policies itself proves that the decisions by those companies make them state actors. Here’s the version from the YouTube complaint (just insert the other two companies where it says YouTube to see what it is in the others):

Below are just some examples of Democrat legislators threatening new regulations, antitrust breakup, and removal of Section 230 immunity for Defendants and other social media platforms if YouTube did not censor views and content with which these Members of Congress disagreed, including the views and content of Plaintiff and the Putative Class Members

But, uh, Donald Trump spent much of the last year in office doing exactly the same thing. He literally demanded the removal of Section 230. He signed an executive order to try to remove Section 230 immunity from companies, then demaned Congress repeal all of Section 230 before he would fund the military. On the antitrust breakup front, Trump demanded that Bill Barr file antitrust claims against Google prior to the election as part of his campaign against “big tech.”

It’s just absolutely hilarious that he’s now claiming that members of Congress doing the very same thing he did, but to a lesser degree, and with less power magically turns these platforms into state actors.

There was a lot of speculation as to what lawyers Trump would have found to file such a lawsuit, and (surprisingly) it’s not any of the usual suspects. There is the one local lawyer in Florida (required to file such a suit there), two lawyers with AOL email addresses, and then a whole bunch of lawyers from Ivey, Barnum, & O’Mara, a (I kid you not) “personal injury and real estate” law firm in Connecticut. If these lawyers have any capacity for shame, they should be embarrassed to file something this bad. But considering that the bio for the lead lawyer on the case hypes up his many, many media appearances, and even has a gallery of photos of him appearing on TV shows, you get the feeling that perhaps these lawyers know it’s all performative and will get them more media coverage. That coverage should be mocking them for filing an obviously vexatious and frivolous lawsuit.

The lawsuit is filed in Florida, which has an anti-SLAPP law (not a great one, but not a horrible one either). It does seem possible that these companies might file anti-SLAPP claims in response to this lawsuit, meaning that Trump could potentially be on the hook for the legal fees of all three. Of course, if the whole thing is a performative attempt at playing the victim, it’s not clear that that would matter.

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Companies: facebook, twitter, youtube

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Comments on “It Can Always Get Dumber: Trump Sues Facebook, Twitter & YouTube, Claiming His Own Government Violated The Constitution”

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James Burkhardt (profile) says:

Re: Re:

LLC stands for Limited Liability Company. None of them are LLCs. Twitter Inc, Facebook Inc, and Google Inc. An LLC would use LLC not Inc. They are C-Corps. That said, a C-corp provides even stronger liability protections, so that is a minor point.

It is common to initially sue the Cheif executives at a company, particularly when you want to claim some personal basis for company actions. It is possible to peirce the corporate veil and sue the executives, particularly if you are suing over the direct actions of an executive. You don’t know the exact responsible party, so you sue all possible parties, and let discovery and the court sort out the responsible party(s).

You will have a hard time holding the CEOs responsible, but nothing stops you from filing the lawsuit (except perhaps competent legal council).

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Scary Devil Monastery (profile) says:

Re: Re: Re: Correct

…which albeit possible is still just monumental stupidity when the odds are good the initial claimant will be the one sitting with millions of dollars worth in lawyer bills.

My guess is we’ll find out whether Trump was trying to use this as a PR stunt or not when we see whether he drops the suits crying and lamenting in front of his base, or ends up showing everyone if he actually can lay his hands on significant cash.

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PaulT (profile) says:

Re: Re: Re:2 Correct

"My guess is we’ll find out whether Trump was trying to use this as a PR stunt or not when we see whether he drops the suits crying and lamenting in front of his base, or ends up showing everyone if he actually can lay his hands on significant cash."

My prediction is both. This will fail quickly due to the laughable nature of the lawsuit, and his base will hand over more cash as he wails and moans about the "deep state" another other nonsense. Initial takes by actual lawyers suggest that his legal counsel is as high quality as ever.

https://lawandcrime.com/high-profile/legal-experts-point-out-glaring-errors-in-trump-lawsuits-against-facebook-youtube-and-twitter/

Scary Devil Monastery (profile) says:

Re: Re: Re:3 Correct

I keep forgetting that with Trump if there are multiple different ways a situation can be exploited or abused he will go for all of them at once. Ironically that approach of his kept failing him in business but pays real dividends in politics…

And I can see that he’s already started asking his base for funds in the lawsuit so by the time he drops the suit he can wring his hands and complain loudly about the leftist judges stopping his righteous crusade while pocketing the money.

Scary Devil Monastery (profile) says:

Re: Re: Re:5 Correct

"Would this be a case of evil savant? I can’t bring myself to say "evil genius"."

Idiot Savant sounds about right. It’s not as if Trump has added new strings to his ukulele over his documented forty years of applying the exact same con time and time and time again.

The two things he has got going for him is the way he doesn’t let a hundred failed grifts dissuade him from launching more, and his ability to always find a new set of gullible sheep to fleece.

Although I’ll say this; In politics the herd of sheep he found seem to be an infinitely renewable resource. He’d be able to pick their pockets, screw their daughters, and hijack their car…and they’d still keep sending him checks…

If he actually did shoot someone on 5th avenue they’d be OK with that as long as he claimed it was a liberal.

Anonymous Coward says:

Re: Re:

from Wikipedia Limited liability

Limited liability is a legal status where a person’s financial liability is limited to a fixed sum, most commonly the value of a person’s investment in a corporation, company or partnership. If a company that provides limited liability to its investors is sued, then the claimants are generally entitled to collect only against the assets of the company, not the assets of its shareholders or other investors.

This does not apply if a board member is successfully sued for malfeasance in office.

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Anonymous Coward says:

Grifters gotta Grift

Considering that it was only minutes after filing this lawsuit, he was sending out notices for fundraising for this lawsuit, it’s most likely this is just one big performative grift.

The lawsuit was written for an audience of one, Trump, and he can use it as a means to dupe people into giving him money.

The rubes who are his core base will gladly give him more money just so they can help him "stick it to big tech" while he at the same time he gives credence to their racists, homophobic, xenophobic, and bigoted views.

I wonder how long it will take his followers to realize that he is essentially just stealing their money.

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Scary Devil Monastery (profile) says:

Re: Grifters gotta Grift

"I wonder how long it will take his followers to realize that he is essentially just stealing their money."

As long as he can give them their grievance addiction fix they’re just fine with it; there’s a reason the Department of Homeland Security published a study on white supremacists suffering withdrawal symptoms after letting go of their hate.
Once Trump got into the entertainment biz he never left, and the product he delivers is just badly aimed rage.

His base are essentially junkies. They’ll keep paying whatever it takes to get the next dose.

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Stephen T. Stone (profile) says:

Re:

Trump knows a platform of his own won’t have the reach that a platform like Facebook or Twitter does. The end of his brief attempt at blogging, such as it was, proves he knows that. It’s also why he never joined Parler or Gab⁠—where’s the fun in poking at liberals if they’re not there to poke back and give him all the attention?

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Bloof (profile) says:

Re: Re: Re:

It’s not the ‘poking at liberals’ that drives his lack of desire to join those platforms, it’s the reach and the big number he can brag about. On twitter, he can brag about having millions of fans, about all the retweets he got from the conservative griftosphere, botnets and elderly racist relatives people can’t unfollow without family drama, you can’t do that on a platform with less than a million users.

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That One Guy (profile) says:

Re: Serious question

He did, it bombed hilariously because it turns out when he’s not the president a bunch of people who were keeping track of what he said/did because of how damaging it could be simply don’t care anymore.

As for making a bigger one where people other than him could post it’s largely for the same reason, the only people who would sign up would be his cultists and people going there just to troll him/them by ‘telling it like it is with locker-room talk’ which would leave his audience much smaller than the one he could get on the current social media platforms and for a narcissist who needs people to pay attention to him that just won’t do.

There’s also the fact that by going this route he gets to play the ‘persecuted victim’ for his gullible(at best) cultists and con them into giving him an endless supply of money to ‘Stick it to the libs/big tech!’, and why would he ever give up easy money like that?

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Baron von Robber says:

Re: Serious question

Because it’s easier to take over something and drive it over a cliff than to build one.

Like the GQP. Trump took it over rather that start a new party which would require competence. He’s currently driving that over a cliff.

See how his own blog failed along with so many of his businesses.

He would have been better off being a used-car salesman.

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JMT (profile) says:

Re: Serious question

"Why doesn’t Trump just make his own platform at this point?"

Because like a lot of his more vocal supporters, he’s a selfish asshole. He’s wants all the benefits of a widely used platform without having to do any work or spending his own money. In his whole life the only thing he’s been legitimately successful at is grifting.

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David says:

Re: Serious question

Why doesn’t Trump just make his own platform at this point?

He doesn’t want his own platform. He wants his own courts. It didn’t quite work out as well as he thought it would with "his" Supreme Court. Nor actually any court of law since there are (yet) minimum intellectual and legal requirements.

But the highest court of the land is not actually the Supreme Court. It is the court of public opinion. Because in the end, public servants get elected, or get appointed by people who got elected.

And Trump is not hemorrhaging as badly in it as in the courts of law. Because he just doesn’t stop. And people give him money so that he can go on. And his "art of the deal" is to never budge an inch. In the end, enough people fall for it instead of just walking away.

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David says:

Re: Imaginary Dictatorship

It was well known that on several occasions, elements of the executive branch of government were working against Trump.

Well, when faced with the choice of working against the people and violate a solemnly sworn oath of office or work against Trump, not everyone will pick the same option.

Sadly, I might say, but probably for a different reason than you.

It’s really appalling that the U.S. for a while had a president forcing that choice upon government employees, and that the responses were such a mixed bag.

And it’s appalling that this clown show isn’t over yet by far and the only thing the Republican party thinks it has to offer.

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Stephen T. Stone (profile) says:

Re:

Trump never had omnipotent control of even the executive branch, despite the overactive imagination of some.

One such person: Donald Trump. Or did you forget that he kept saying Article II gave him the power to do basically anything?

on several occasions, elements of the executive branch of government were working against Trump

Gee, can’t imagine why~.

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Scary Devil Monastery (profile) says:

Re: Imaginary Dictatorship

" It was well known that on several occasions, elements of the executive branch of government were working against Trump."

I’m not sure which is worse, Koby; the fact that Trump is one of very few presidents to have issued orders so unlawful the executive had to step in and say "We can’t do that" or that you and your alt-right comrades think it’s a great shame the president still has to obey the law.

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Chozen says:

Its a Crime Mike

Mike I told you this before and I will tell you this again. When a government official contacts Facebook, twitter ect. to get them to take down constitutionally protected speech, the correct response form Facebook, Twitter etc. is "No we cannot legally conspire with government officials to censor legally protected speech." They should then forward the request to the DOJ’s Civil Rights Division for attempted violation of 18 U.S. Code § 241 – Conspiracy against rights.

Nothing more and nothing less.

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Toom1275 (profile) says:

Re: Re: Its a Crime Mike

To wit – The district court debunk’s Chozen/Bobmail’s deliberate lies here:
https://www.techdirt.com/articles/20210630/00262647091/robert-f-kennedy-jr-ridiculous-lawsuit-against-facebook-gets-tossed-out-court.shtml

… general statements by the CDC and Zuckerberg about “working together” to reduce the spread of health or vaccine misinformation, or to promote universal vaccination do not show that the government was a “joint participant in the challenged activity,” specifically the decision to put the warning label on CHD’s Facebook page, the fact-checks, and Facebook’s “demonetization” and “shadow-banning” of CHD’s content and page. For example, one of the allegations CHD relies upon is contained in Paragraph 52 of the SAC, which alleges, “Zuckerberg has stated publicly that Facebook is working with both the CDC and the WHO: ‘We work with the [Centers for Disease Control and Prevention] and we work with [the World Health Organization] and trusted health organizations to remove clear misinformation about health-related issues that could cause an imminent risk of harm.’”…. This statement (and similar general statements by Zuckerberg, Facebook, the CDC, or other entities within the federal government about “working to remove misinformation”) does not support the inference that Facebook (or Zuckerberg) worked in concert with the CDC to censor CHD’s speech, retaliate against CHD, or otherwise violate CHD’s constitutional rights.

Relying on Congressman Schiff’s February 2019 letter to Zuckerberg, CHD contends that Congressman Schiff “provided a substantive standard – deference to CDC/WHO pronouncements conclusively presumed to be ‘authoritative’ – by which Facebook should identify and censor vaccine ‘misinformation’ on its platform.” SAC ¶ 61. However, nowhere in the letter does Rep. Schiff direct Facebook to adopt any specific standard to follow when it determines what speech constitutes vaccine misinformation or whether particular posts are false or misleading. Instead, Rep. Schiff’s letter expressed his concern about the existence of “medically inaccurate information about vaccines” on Facebook and other social media platforms, and he asked Facebook for information about whether content that “provides medically inaccurate information about vaccines” violates Facebook’s terms of service and what actions Facebook “currently take[s] to address misinformation related to vaccines on your platforms” and whether Facebook was “considering or taking additional actions?” …. None of the general statements or questions in Representative Schiff’s letter can be interpreted as providing a specific standard of decision that mandated the particular actions that Facebook took with regard to CHD’s Facebook page. … Indeed, the Court notes that the SAC alleges that Facebook began censoring its speech starting on January 15, 2019, which was prior to Rep. Schiff’s letter

Nor does the fact that Facebook directs users to the CDC website for information about vaccines mean that the CDC has supplied the “standard of decision” for Facebook’s regulation of content on its platform. Similarly, simply alleging that Facebook and the CDC are “working together” or “partnering” to curb the spread of “vaccine misinformation” does not allege that the specific acts challenged in this lawsuit were made pursuant to a CDC policy. Instead, what CHD has plausibly alleged is that Facebook created its own algorithms and standards for detecting “vaccine misinformation,” and that in doing so, Facebook may have relied on CDC information about vaccines to determine what information is “misinformation.” That is not enough to show that Facebook’s actions were “compelled” by any particular CDC “standard of decision.”

Anonymous Coward says:

Re: Its a Crime Mike

Per the cited statute:

…in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States…

So next step will be enlightening us where in the Constitution you are guaranteed a right to a social media account.

That’s the problem with you copy/paste morons who keep regurgitating the same bullshit. You just take it at face value and don’t even bother to read what it says. It’s why I loathe assholes like you, and either block, report, or unfriend them – you simply have no utility whatsoever, and you’re making more people stupid with your garbage.

Why not tell the folks at Gab or Parler? At least someone over there might give something close to a shit and not just think you rode the short bus to school.

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Scary Devil Monastery (profile) says:

Re: Its a Crime Mike

"…for attempted violation of 18 U.S. Code § 241 – Conspiracy against rights."

Why am I not surprised to see you once again trying to press-gang a law into the debate which has nothing to do with the topic nor proves what you want it to prove, Baghdad Bob?

You once again bringing up a case which was already ruled against by SCOTUS is just pathetic and sad.

Almost as much as when you were nagging about the Munn precedent which was overturned in 18-bloody-86.

Here’s a hint, Bobmail…err.."Chozen"…as long as you keep dropping your own brand of insane in your comments it doesn’t matter which nickname you try to make them appear under. We still realize who it’s coming from.

Scary Devil Monastery (profile) says:

Re: Re: Its a Crime Mike

[Addendum]

Also, you trying to predict the appropriate response a private entity would have to give to government tells us all about where you’re coming from.

Twitter and Facebook are free to set their own policy. And they can do so based on input from anyone they choose to listen to.

No one owes you an audience, Baghdad Bob. On a social platform you have no rights beyond those stated in the ToS.

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That One Guy (profile) says:

'You're being treated badly, now give me money!'

While it wouldn’t surprise me if he was stupid enough to think that these arguments are even remotely sound and that he managed to find lawyers similarly lacking in basic legal knowledge I suspect that this is nothing more than a PR stunt/fundraiser to fleece the gullible rubes that are his cultists while reminding them how horribly they’re ‘persecuted’ to keep that complex/fetish alive.

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Anonymous Coward says:

These may be private company’s but they are out there and make themselves the PUBLIC FORUMS. In this case, I do think the first amendment is needed. We already have mostly one-sided leftist views. They have been flat out lying about Trump, Over, and Over again. Not just Trump, but most everything else they are talking about. Lies, Lies, Lies, and god forbid if anyone else throws out the truth.

Let me put it another way, Here in California, MALLS, which are Private Owned, have to let people have their First Amendment rights in them. FREE SPEECH in Private owned malls!!! Yep, that’s rights. So what is the difference?

https://www.mtsu.edu/first-amendment/article/583/pruneyard-shopping-center-v-robins

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Stephen T. Stone (profile) says:

Re:

Social media services are not public fora. A Supreme Court ruling from 2019, for which Justice Brett Kavanaugh wrote the majority opinion, doesn’t directly address social media but still provides the logic necessary to counter any “yes they are public fora” argument:

Under the Court’s cases, a private entity may qualify as a state actor when it exercises “powers traditionally exclusively reserved to the State.” … It is not enough that the federal, state, or local government exercised the function in the past, or still does. And it is not enough that the function serves the public good or the public interest in some way. Rather, to qualify as a traditional, exclusive public function within the meaning of our state-action precedents, the government must have traditionally and exclusively performed the function.

The Court has stressed that “very few” functions fall into that category. … Under the Court’s cases, those functions include, for example, running elections and operating a company town. … The Court has ruled that a variety of functions do not fall into that category, including, for example: running sports associations and leagues, administering insurance payments, operating nursing homes, providing special education, representing indigent criminal defendants, resolving private disputes, and supplying electricity. …

When the government provides a forum for speech (known as a public forum), the government may be constrained by the First Amendment, meaning that the government ordinarily may not exclude speech or speakers from the forum on the basis of viewpoint, or sometimes even on the basis of content[.]

By contrast, when a private entity provides a forum for speech, the private entity is not ordinarily constrained by the First Amendment because the private entity is not a state actor. The private entity may thus exercise editorial discretion over the speech and speakers in the forum. This Court so ruled in its 1976 decision in Hudgens v. NLRB. There, the Court held that a shopping center owner is not a state actor subject to First Amendment requirements such as the public forum doctrine[.]

The Hudgens decision reflects a commonsense principle: Providing some kind of forum for speech is not an activity that only governmental entities have traditionally performed. Therefore, a private entity who provides a forum for speech is not transformed by that fact alone into a state actor. After all, private property owners and private lessees often open their property for speech. Grocery stores put up community bulletin boards. Comedy clubs host open mic nights. As Judge Jacobs persuasively explained, it “is not at all a near-exclusive function of the state to provide the forums for public expression, politics, information, or entertainment[”.]

In short, merely hosting speech by others is not a traditional, exclusive public function and does not alone transform private entities into state actors subject to First Amendment constraints.

If the rule were otherwise, all private property owners and private lessees who open their property for speech would be subject to First Amendment constraints and would lose the ability to exercise what they deem to be appropriate editorial discretion within that open forum. Private property owners and private lessees would face the unappetizing choice of allowing all comers or closing the platform altogether. “The Constitution by no means requires such an attenuated doctrine of dedication of private property to public use.” … Benjamin Franklin did not have to operate his newspaper as “a stagecoach, with seats for everyone.” … That principle still holds true. As the Court said in Hudgens, to hold that private property owners providing a forum for speech are constrained by the First Amendment would be “to create a court-made law wholly disregarding the constitutional basis on which private ownership of property rests in this country.” … The Constitution does not disable private property owners and private lessees from exercising editorial discretion over speech and speakers on their property. …

A private entity … who opens its property for speech by others is not transformed by that fact alone into a state actor.

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That One Guy (profile) says:

Re: Re: Re:

I can’t help but think that you could have some fun with that quote if you initially left out who said/wrote it and just attributed it as ‘a judge’ and watched as the ‘conservatives’ tripped over themselves to deride what was obviously a democrat-socialist-commie judge who had no idea what they were talking about and were sure to be overruled by the Real Americans(tm) on the Supreme Court.

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Scary Devil Monastery (profile) says:

Re: Re:

"These may be private company’s but they are out there and make themselves the PUBLIC FORUMS."

Nope. The law is pretty damn clear that private property can not be public property. SCOTUS has ruled on this a number of times already.

There is only one way for Facebook to become a public forum; if Government takes over Facebook, turning it into a bona fide part of the US government.

"We already have mostly one-sided leftist views."

Which happens to also be the legal view, the constitutional view, and the factual view. If you’re so far down the rabbit hole that factual reality is "leftist" to you then that is not a condemnation of factual reality. It’s a sign that you’re insane.

"Here in California, MALLS, which are Private Owned, have to let people have their First Amendment rights in them. FREE SPEECH in Private owned malls!!! Yep, that’s rights. So what is the difference?"

They don’t. The mall owners can evict patrons at whim and with no prior notice, then deny said patrons entrance in perpetuity. The bar owner can toss you out for any reason. The restaurant owner can deny you entry.

But hey, don’t take my word for it; Go to any mall and make use of your right to speak in a way which makes the other patrons uncomfortable. I guarantee that security will evict you in a blink and no court will touch your free speech case because the mall owner will be the one in the right.

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Richard Forno (profile) says:

This is the same idiot who wouldn’t join Parler unless its owners agreed to deplatform anyone who criticized him there, which they didn’t. So again, GQP folks love cancel culture when it works in their favor, and then scream victimization when they’re the ones being cancelled — er, held acountable for their actions.

Wanna bet he tries charging his GQP followers to ‘join’ his lawsuit ‘class’ ???

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That Other Other Guy says:

Not HIS money

Trump will not be using HIS money for this lawsuit. He will use funds from his Trump 2024 campaign.

Remember, donations to his campaign come with a disclaimer that a large portion of the funds can be used for activities not directly related to his re-election (is that even legal?) like legal fees.

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Tim R (profile) says:

This is a great example of where money and power gets you in litigation, even at this early stage. A plaintiff on a budget would never be able to afford a lawyer who would put his reputation on the line for this kind of drivel.

"Want me to file your silly, performative litigation? That’s gonna cost you extra."

The fact that none of these lawyers are any of the usual suspects isn’t that surprising to me. He’s either chased away the others, stiffed them, or thrown them under the bus to be arrested. That is how one-way loyalty works.

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restless94110 (profile) says:

Snarter

So, you think it’s dumb to fight for Free Speech? Could you get dumber? Why on Earth would you support totalitarian practices? Because Trump?

That’s your reason? You are right about one thing: you could always get more dumber.

What else will you snark about? When all of your friends and associates are de-platormed because some social network decided that you and your buddies are also issuing "disinformation"?

When you lose your platform will you keep snarking to the neighboring table at the Starbucks (because you will have nowhere else any longer to snark)?

Will you ever stop writing stupid articles that celebrate fascism? Can you get even dumber?

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Anonymous Coward says:

Re: Snarter

Will you ever stop writing stupid articles that celebrate fascism?

Wouldn’t ‘stupid articles that celebrate fascism’ also be an exercise in free speech?

How do you reconcile supporting free speech while complaining about someone else’s exercise of free speech?

Can you get even dumber?

Before you consider replying, I’ve got some terms for you to look up:

  • Projection
  • Cognitive Dissonance
  • Dunning-Krueger Effect
  • Introspection

Be prepared, because there’s gonna be a fucking test.

ECA (profile) says:

looks busy in here.

1. How many corps would LOVE to not monitor Content?

How many 1000’s of people would be Unemployed?
How many other nations would LET these services Let stand ANY/ALL posts?(NONE)
Who is the biggest complainer to All of these sites? NOT THE GOV.
RIAA/MPAA.

What could happen? SOME form of Perfect ID to get into a forum/chat? NO WAY.

Does anyone know WHAT happened to about 1/2 the porn sites on the net? Look it up. The States Jumped on them, and used the Credit card corps against them. they could no longer use credit cards, so ALLOT of the Closed down, IN THE USA.

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mermaldad (profile) says:

Methinks Facebook May Revise the Term of Trump's Banishment

Remember that Facebook has converted Trumps indefinite suspension to a two-year conditional suspension. If this goes as I expect it will and the courts throw these lawsuits out, and if they require him to pay Facebook’s lawyer fees, I have a feeling that one of the conditions of lifting the suspension in two years will be that he has to have paid those lawyer fees.

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That One Guy (profile) says:

Re: Methinks Facebook May Revise the Term of Trump's Banishment

As funny as that would be(if anything would get him to pay his legal fees that would be it, and even then it might not be enough) sadly I don’t see it happening, though actions like this do certainly strengthen the case that they’d be fools to let him back on in two years as he’s clearly not repentant in the slightest and hasn’t changed at all from when they gave him the boot.

Anonymous Coward says:

Re: Methinks Facebook May Revise the Term of Trump's Banishment

Nah! Trump (or his handlers) might just be clever enough to pay it, and raise a stink if his account isn’t immediately and permanently restored, without prejudice.

After all, if it’s paid, it won’t be paid with his own money, anyways.

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That Anonymous Coward (profile) says:

If not for FB timing out the poor woman who was spreading mask misinformation, she surely would have been able to find her missing brother before he was discovered dead 2 months after he went missing.

stares

One does hope the court collects the pro hac vice paperwork & fee before punting these silly cases.
One would also hope that a letter would be sent to each state where these "lawyers" are barred for misconduct.

There is nothing new or novel about this, the law is settled.
Trumps insane claims are merely fodder for the Faux News set to keep the big lie alive.
This is a campagin ad wasting the time of the courts & private companies.

Also Trump claims to be the head of the GOP, someone might want to inform them to change the website then.

Insane dipshit wastes other peoples money fighting to prove fantasies are reality… OMG its just like he got a 5th year in office!

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That Anonymous Coward (profile) says:

Re: Re:

And as if on cue…
Was watching DW the Day (German News cause the world is more then ‘Merika kids)…
Right after the press conference mass mailing went out trying to get cash from the Trump faithful.

A lawyer they interviewed also pointed out the hypocrisy in Trumps lawsuit…
When Trump was sued for blocking people he claimed they were a platform now magically when it suits him they aren’t.

Trump likes to use his lawsuits to try and scare people into giving him what he wants, because he can run the bills up. Perhaps the fake billionaire should have noted the trillion dollar valuation & that all 3 of these companies will not be scared of him & will force him to pay them for defending this meritless case. Trump of course will never pay the bill (cause hes broke) but hopefully one of the many entities he owes large amounts to will finally decide he is more trouble than he is worth.

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Tanner Andrews (profile) says:

A Serious Problem

Some judge is going to have to read this thing, including [Twitter pg 14]:

60. Likewise, with Plaintiff now removed from Twitter and other social media platforms, it has ended balanced, direct public discussions between competing political views on national and local issues.

Then he will know why there is no longer any direct public discussion of political issues in the U.S.

Without that information, he might have blamed the lack of U.S. public political discussion on this “markdown” stuff, which tried to change P:60 above to P:1 as though it were the first of a numbered list.

Scary Devil Monastery (profile) says:

Re: A Serious Problem

"…he might have blamed the lack of U.S. public political discussion on this “markdown” stuff, which tried to change P:60 above to P:1 as though it were the first of a numbered list."

I somehow doubt it. Sure, Trump will sue anyone for anything, but normally he goes after people with a lot of money – apparently wealth makes for extra asshat behavior or something.

Unless someone dares lampoon his dainty miniscule hands. Trump will sue homeless beggars and stray dogs over that shit.

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Scary Devil Monastery (profile) says:

Re: Re:

Ah, when Rudy Giuliani managed to book the back parking lot of a landscaper between the dildo emporium and that crematorium, where he held a truly stirring speech on how some unspecified conspiracy changed the ballots on massive scale from under the noses of the republican election monitors with no one the wiser? Must have been those Liberal Shadow Ninja Queers striking from their base at Hogwarts, I reckon.

Still, Rudy may have been gabbling nonsense between the cock and the charred place but at least he didn’t melt before the cameras that time.

John85851 (profile) says:

Go after his law team

If this law suit is actually frivolous then the judge needs to throw the book at Trump and his law team. Though I’m sure Trump will figure out a way to not pay any fines (or even pay his own legal team).

But what will happen to the lawyers if they’re looking at thousands or millions in legal costs and punitive court fines? Or do they not care about fines since they’ll get tons of attention from the right-wing conservative media sphere? Sure, they’ll have to sell off all their assets to pay the court fines, but look how many conservative followers they now have on Twitter!

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