President Trump vs Big Tech and Fake News

Big Tech censorship is alarming. Conservative accounts are disproportionately targeted and banned. But Trump’s lawsuit is unlikely to succeed.

The First Amendment protects free speech from infringement by government, not private entities, by guaranteeing that “Congress shall make no law . . . abridging the freedom of speech, or of the press.” To argue that Big Tech’s regulatory policies are unconstitutional would mean proving that these social-media platforms are de facto state actors, a claim Trump and the other plaintiffs made in the legal brief they filed yesterday. Their argument is that Democratic politicians have used coercive measures to induce censorship of conservative opinion on the part of the defendants’ social-media platforms, such that these regulations become state-sponsored and directed.

The plaintiffs further argue that Section 230 (c) of the Communications Decency, Act which provides that “no provider or user of an interactive computer service . . . shall be held liable on account of any action voluntarily taken in good faith to restrict . . . availability of material that the provider . . . considers to be obscene . . . harassing, or otherwise objectionable, whether or not such material is constitutionally protected” provides protection to social-media platforms so broad that it amounts to government sponsorship.

However, so-called coercive measures allegedly used by Democratic legislators are no more flagrant than merely public statement of opinion on how Big Tech platforms ought to use powers stemming from section 230. “Threats” to enact antitrust laws targeting social-media providers or to repeal section 230 are essentially ordinary policy recommendations. There is simply insufficient evidence for the courts to find that Big Tech companies, which are indisputably privately owned entities, are in effect state actors bound by the First Amendment. Furthermore, there is hardly any judicial precedent for courts to consider private corporations state actors because they closely communicate and cooperate with federal agencies.

There is certainly a case to be made that Big Tech companies wield state-like powers due to not only their scale and influence but also American citizens’ reliance on their social-media platforms, such that there is a case to be made for legal regulations restricting these private companies’ power to censor constitutionally protected speech. However, this should be a legislative matter; it is neither realistic nor just to expect the courts to wade in and legislate on this issue.

The most formidable obstacle to the offense on Big Tech censorship is still Section 230 (c) of the Communications Decency Act, which expressly allows social-media platforms to regulate or remove material otherwise constitutionally protected that they in good faith deem inappropriate. Twitter and Facebook have justified the ban they imposed on Trump’s accounts by asserting that Trump had violated their platforms’ policies against the incitement of violence, a reason that could be plausibly interpreted as “in good faith.” “Good faith” is notoriously difficult to disprove; thus, despite the doubt these social-media platforms have sown about their benevolent intentions by the inconsistent application of their policies, curbing Big Tech censorship remains a difficult task.

Ultimately, while many conservatives anxious about Big Tech’s disproportionate power in curating available information on their platform may, justifiably, be sympathetic to the cause of Trump’s class-action suit, the more appropriate avenue to protecting free speech on social- media platforms is still to amend Section 230 (c) of the Communications Decency Act through the legislative process or to otherwise enact legal regulations specifically targeting Big Tech censorship.