(Originally published on Gab
https://gab.com/darulharb/posts/106654254733117462 )
I've now had a chance to read the three class-action complaints filed earlier this month in the Southern District of Florida by President Trump and other plaintiffs against defendants Twitter, Facebook, and Youtube, alleging that the social media giants are acting as agents of the government in censoring constitutionally protected speech.
Trump, et al. v. Twitter, Inc, et al.
https://www.wsj.com/media/TrumpvTwitter.pdf?mod=article_inline
Plaintiffs seek declaratory judgment holding that Section 230 of the Communications Decency Act is unconstitutional. "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." p. 28 of Twitter complaint.
230(c)(2) provides that: "No provider or User of an interactive computer service shall be held liable on account of—
A. any action voluntarily taken in good faith to restrict access to or availability of material that the provider or User considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected..."
From the language of the law itself, it does look like it's prima facie unconstitutional, or at least unconstitutional "as applied." Congress provided a broad, vague standard "otherwise objectionable" which applies "whether or not such material is constitutionally protected." The federal government shielded these social media companies from liability for censoring "otherwise objectionable" constitutionally protected speech, and has used threatened revocation of the Section 230 protection as a "stick" to coerce the social media companies to exercise censorship in ways which government could not constitutionally do itself. Also, plaintiffs allege, based upon public statements, at least one agency of the federal government, the CDC, has specifically coordinated with social media companies to limit speech that the government deems "misinformation."
In the Twitter lawsuit, plaintiffs specifically cite as one example of coordination Twitter's suppression of viewpoints about the COVID pandemic which the federal Centers For Disease Control viewed as "misinformation" and the CDC's public statements that they were coordinating with social media companies to "contain the spread of misinformation." This direct coordination is further supported by evidence filed in the Facebook complaint.
The allegations regarding harm to plaintiffs and the classes' civil rights depend from finding that Twitter is acting at the behest of government, as a governmental agent. In the Twitter complaint, plaintiffs also note that the Second Circuit U.S. Court of Appeals, in Knight First Amendment Inst. at Columbia Univ. v. Trump, No. 18- 1691, had previously held the President's Twitter account to be a public forum, in a case challenging President Trump's blocking of certain users from commenting on his tweets. The U.S. Supreme Court vacated that decision in Biden v. Knight First Amendment Institute (2021) and remanded to the Second Circuit with instructions to dismiss the case as moot, given the change of administrations, but Justice Thomas' concurring opinion in that case is considered to have provided a legal "road map" for policymakers to regulate social media companies as "common carriers." In the complaint, Plaintiffs argue that Twitter does amount to a "public forum."
Trump, et al. v. Facebook, et al.
https://s.wsj.net/public/resources/documents/TrumpvFacebook.pdf
In the lawsuit against Facebook, plaintiffs allege coordination between ostensibly independent and competing social media companies concerning editorial decisions. "Facebook engages in targeted censorship decisions by using both algorithms and employees (referred to as 'content moderators') utilizing an internal tool developed by Facebook called TASKS. Facebook’s content moderators use TASKS to entertain censorship suggestions from employees. Facebook content moderators then often consult with their peers at other similarly situated social media platforms in deciding who, or what, to censor. Facebook and Twitter Inc. employees often coordinate their censorship efforts, which are authorized and immunized by Section 230. A recent review of domain names on Facebook’s TASKS platform referred to Twitter domain names, as well as particular phrases, words, or individuals both Facebook and Twitter were considering censoring, or ultimately did censor." p.7 of Facebook complaint. After noting that both Facebook and Twitter suspended President Trump's account on January 7th, 2021 within two minutes of each other, plaintiff's allege "Facebook also has developed a powerful tracking platform, CENTRA, that allows Facebook to monitor its Users’ speech and activity, not only on each individual User’s Facebook page, but also that Users’ speech and activity on any other social media platform across the entire Internet—and across all of that User’s Internet-connected devices as well."
The Facebook complaint highlights emails between Facebook CEO Mark Zuckerberg and NIAID director Dr. Anthony Fauci and others concerning Facebook's efforts to monitor "COVID-related views and content and censor posts deemed false claims by Facebook." Also, regarding Facebook's deplatforming of President Trump, the complaint cites the decision of Facebook's recently established "Oversight Board" which ruled regarding Facebook's decision to "indefinitely" suspend President Trump, that "[i]]t is not permissible for Facebook to keep a user off the platform for an undefined period, with no criteria for when or whether the account will be restored. In applying this penalty, Facebook did not follow a clear, published procedure. ‘Indefinite’ suspensions are not described in the company’s content policies." If Facebook were to be found to be acting as an agent of the government, this sort of standardless action could be considered "arbitrary and capricious," in that Facebook was not following its own policies.
Another of the plaintiffs, besides President Trump, is Elizabeth Albert, an administrator of a "Walkaway" Facebook group which offered support and encouragement to people wanting to leave (or "walk away from") the Democratic party. On January 8th, 2021 Facebook deleted the Walkaway group, as well as banned Ms. Albert's personal Facebook page, which, plaintiffs say, had never received any warnings or flags for its content.
Perhaps because the Facebook complaint is the most factually developed, it seems to be the strongest case.
Trump, et al. v. Youtube, et al.
https://s.wsj.net/public/resources/documents/TrumpvYouTube.pdf
The Youtube complaint mentions Youtube's censorship of Donald Trump's first post-presidency rally in Sarasota, FL, noting that Right Side Broadcasting Network (RSBN) was suspended for seven days from YouTube’s platform prior to the rally, impacting its streaming coverage, and that several of RSBN's videos of the rally were removed. Additionally, the complaint notes that "Right Side Broadcasting Network’s channel was suspended earlier on February 28, 2021, for streaming the Plaintiff’s speech from the Conservative Political Action Committee, often called 'C-PAC.' The channel was suspended for two weeks." p. 21, Youtube complaint.
The Youtube complaint goes into considerable detail about Youtube's editorial decisions concerning COVID-related topics, including censoring, flagging and demonetizing videos highlighting congressional testimony about ivermectin as a possible treatment, and about China's Wuhan Institute of Virology as a possible origin of the pandemic. The clear implication is that Youtube as well has been a participant in the governmental campaign against supposed COVID "misinformation."
The complaint further alleges that "On December 2, 2019, YouTube confirmed it had removed Trump Campaign ads. YouTube prevented President Trump from running a number of ads on its platform during the election. The exact reasons for that decision unclear. As a result, over three hundred (300) ads were taken down." p. 22, Youtube complaint.
Interestingly, when plaintiffs identify Jack Dorsey and Mark Zuckerberg, the CEOs of Twitter and Facebook, respectively, in their personal capacities, they reference the definition of "person" given at 18 U.S.C. § 1961(3), the Racketeer Influenced and Corrupt Organizations Act (RICO). They notably do not do so for Sundar Pichai, CEO of Google/Alphabet in the Youtube complaint.
As President Trump so often says, "Let's see what happens."
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