This essay was first published in the July 27, 2021 Epoch Times.
This is the second in a three part series exploring issues raised by former President Donald Trump’s lawsuit against Twitter.
The first essay discussed a reason for suing that Trump does not allege, but probably should: When social media companies ban ordinary political discussion, they abuse their immunity under Section 230 of the Communications Decency Act. Congress bestowed that immunity only to enable parents to protect children, not to authorize social media to impose their biases on the rest of us.
This installment focuses on Trump’s claims that Twitter’s censorship, and Section 230, violate the First Amendment and are therefore unconstitutional.
The Constitution grants Congress power to “regulate Commerce … among the several States.” The Constitution’s framers wrote for the ages and they knew about technological change. By selecting the word “Commerce” (rather than, say, “trade by barge or wagon”), they covered commercial activity not yet invented. Congress exercised its authority over interstate commerce when it adopted the Communications Decency Act.
However, Congress’s authority over interstate commerce—like its other powers—is limited by the Bill of Rights. The First Amendment states in part, “Congress shall make no law … abridging the freedom of speech, or of the press ….” When the Constitution was adopted, “the freedom of speech” meant direct interpersonal communication. A person declaiming on a soapbox was engaged in freedom of speech. Anonymity was impossible.
On the other hand, “the freedom of the press” meant speaking through a medium, often under protection of anonymity. During the founding era, freedom of the press included more than writing in the newspapers. It included many other media as well, including pamphlets, placards, letters, and large sheets called “broadsides.”
Internet communication is communication through a medium, so according to the First Amendment’s correct meaning, internet communication is an exercise in freedom of the press (pdf). Unfortunately, judges and lawyers often inaccurately characterize it as “freedom of speech.” In some contexts, such as donor privacy, this is a problem. Fortunately, it makes no difference in our present discussion.
The text of the First Amendment, unlike most of the Bill of Rights, explicitly binds only “Congress.” However, during the 20th century, activist Supreme Court justices applied the First Amendment to all parts of the federal government and to state and local governments as well. The current bench has refused to revisit those precedents, so we must consider them binding for purposes of the Trump lawsuit.
However, not even activist justices usually apply the First Amendment against private companies. To the contrary, the First Amendment protects private companies. As professor Alan Dershowitz pointed out in a July 19, 2021, speech for The Epoch Times, in Miami Herald v. Tornillo (pdf) the Supreme Court ruled that the First Amendment ensures the right of private media (presumably including Twitter) to choose what they will publish—subject, of course, to liability for defamation and other wrongs.
But there are instances in which a private company could be subject to the First Amendment, and the Trump lawsuit relies on those exceptions.
Dershowitz mentioned one of them: the court’s ruling in Marsh v. Alabama (pdf). In that case, the justices held that if a private company owned an entire town, the company couldn’t prevent the Jehovah’s Witnesses from canvassing in the town. If the court had decided otherwise, the company could use its monopoly position to shield townspeople from access to ideas the company didn’t like.
You can argue that Twitter, as a quasi-monopoly, is acting in the same way as the company town did in the Marsh case. The problem with that argument is that there are many ways for ideas and information to circumvent Twitter.
Another scenario in which Twitter’s censorship may be subject to the First Amendment is if government officials are coercing Twitter. The Trump lawsuit recites a long list of Democratic Party officeholders who have asserted that social media should censor Trump, and some of these officeholders threatened legal sanctions if social media didn’t comply.
One weakness in this contention is that Trump is suing neither those officeholders nor the federal government. (They are probably immune from suit anyway). Moreover, if Twitter banned Trump because Twitter was coerced, then the ban was not Twitter’s fault: “The government made us do it!” Twitter may respond. The “coercion” theory might give back Trump his Twitter account, but is unlikely to yield financial compensation.
Still another theory behind the lawsuit is that Section 230 of the Communications Decency Act is a government invitation to censorship. The general idea is that the government violates a constitutional right when it invites private entities to violate that right.
For instance, in Shelley v. Kraemer (pdf), the Supreme Court prohibited state enforcement of real estate covenants that discriminate against racial minorities. In Reitman v. Mulkey (pdf), the court voided a California voter initiative that the justices thought invited unconstitutional discrimination against minorities. In Romer v. Evans (pdf), the justices invalidated a Colorado voter initiative the majority of the court thought was an invitation for discriminating against homosexuals.
So, the theory goes, if Congress invited Twitter to exercise political censorship, then Congress violated the First Amendment.
But this theory also has weaknesses, and those weaknesses are crippling. First, Trump is suing Twitter, not Congress. Second, as I explained in the first installment, Congress created Twitter’s Section 230 immunity so Twitter could empower parents to protect children, and that’s perfectly constitutional. Third, the Supreme Court’s “government invitation” precedents are controversial and based on weak reasoning by liberal-activist justices. The present Supreme Court is unlikely to extend them.
Where does that leave Trump’s claim that Twitter’s censorship violated the First Amendment? Still quite viable—because there’s another ground for this claim, and it’s a very good one. It rests, ironically enough, on a case arising out of racist misconduct by Joe Biden’s home state of Delaware.
More on that in the next installment.