Former President Trump speaks at his golf club in Bedminster, N.J., July 7, 2021. (Eduardo Munoz/Reuters)

NRPLUS MEMBER ARTICLEJust because something is bad does not mean it should be illegal. And just because something should be illegal does not mean it is. Lawyers are supposed to know this. The lawsuits filed by Donald Trump against Twitter, Facebook, and YouTube are complaints about things that are not against the law. These cases should be thrown out immediately, and most likely will be. Anybody who puts money or faith behind these suits is getting scammed.

Trump, with the aid of his America First Policy Institute, has filed civil class-action lawsuits in the United States District Court for the Southern District of Florida (the federal court in Miami) against Twitter, Facebook, and YouTube. The suits claim that the companies have violated the First Amendment by banning or suspending Trump and others from their platforms. Somebody seems to have missed what the First Amendment says: “Congress shall make no law” restricting the freedom of speech. The First Amendment is now applied to all levels of government, but it does not apply to private companies, and no amount of creative lawyering will change that.

There are legitimate reasons to be concerned that a few social-media giants have too much power over the access of Americans to platforms for public debate. There are particular reasons for conservatives to be concerned that these companies exercise that power in ways that are arbitrary and biased. A society that loses respect for the value of free speech, after all, will eventually surrender the legal protection of that speech. A society in which a handful of politically monolithic corporations can decide what speech is permissible will degrade that respect in a hurry. There are fair debates about whether there are ways for the government to solve these problems without the cures being worse than the disease.

But under very longstanding principles of American law, private companies are not the government, and they are not required to play by the same rules as the government. There are good reasons for this: If you break YouTube’s terms of service, YouTube will not send armed agents to your door to shoot you or lock you up. The First Amendment only restricts the government. The same is true of the rest of the Constitution, with the singular exception of the 13th Amendment’s ban on slavery.

There are two big, glaring problems that run throughout these complaints. I will use the Twitter complaint as an example, since all three pursue identical legal theories and are identical in many respects.

Not State Action

All three complaints rely on a completely insane theory of state action. “State action” is the essential element of a constitutional complaint: that the censorship, discrimination, or other injury you complain about was the work of the government. Trump’s complaints offer a two-pronged theory of “state action.” Both are entirely inconsistent with case law, the Constitution, and the Anglo-American tradition.

The first prong of Trump’s legal theory of state action is the claim that Section 230 of the Communications Decency Act, 47 U.S.C. § 230 — a statutory safe harbor from certain kinds of lawsuits — amounts to “unconstitutional authority delegated to [Twitter] by Congress,” because it “enabled . . . Twitter to grow into a commercial giant” and therefore “Twitter’s status thus rises beyond that of a private company to that of a state actor.” This is similar to the bad legal theory I wrote about last month in a suit against Major League Baseball:

[Constitutional] lawsuits require a showing that the defendant’s conduct amounted to state action. That has occasionally ensnared the intersection between powerful private businesses and the state, but usually only when either the business is carrying out state dictates (thus, indirectly acting for the state) or the state is enforcing private choices (thus, effectively adopting them). As an example of the latter, in the 1972 case of Lavoie v. Bigwood, the First Circuit found that a trailer park’s racially discriminatory policies became state action when the sheriff was called to enforce them. But the Supreme Court, as far back as its decision in Jackson v. Metropolitan Edison Co. (1974), concluded that a power company with a state-backed monopoly was not the state, at least not for purposes of its decisions to terminate electric service from a customer without due process of law.

If it is not state action to get banned by your power utility company, it’s not state action to get banned by Twitter, either.

The theory is even flimsier here; at least MLB is a specific recipient of a government exemption from the antitrust laws, granted at a time when it already possessed an effective monopoly. Facebook, Twitter, and YouTube did not even exist when Section 230 was enacted — two of them did not exist until a decade later — and they had to climb over numerous competitors in a crowded market before they obtained their current positions. Nobody would have argued that any of these companies was a state actor in 2007; the fact that they have grown in the marketplace since, at the expense of competitors who benefited from the same Section 230 protections, does not change that one whit.

Moreover, remember the two main things Section 230 actually does. One is to protect platforms from being liable for everything said by other people on their sites. That’s a rule that most common-law courts would probably have come around to anyway, but Section 230 makes it a clearer, cleaner defense to assert at the outset of a case. That immunity makes platforms more, rather than less, willing to host speech by all sorts of people.

The more controversial piece, which Trump bizarrely asks the court to declare “unconstitutional on its face,” is that Section 230(c)(2) immunizes platforms from liability for banning content from their platforms, and makes clear that they can use their judgment to ban things — Congress had in mind pornography — that the government itself might not be able to ban from its own platforms. But what liability could they face anyway? Section 230 does not immunize Internet platforms from lawsuits for breaching their own user contracts (although those are typically written to give broad latitude to the companies). Without Section 230, social-media platforms would still be private companies that are not bound by the First Amendment. True, the preemptive force of Section 230 limits states from creating new causes of action in this area, but most states have no such laws. Section 230 offers a quick escape hatch from a lot of nuisance litigation, but the actual amount of liability it eliminates is fairly modest, and hardly enough to convert its beneficiaries into secret agents of the federal government.

There are fair arguments about reforming Section 230. But there is simply no support in the law for claiming, as Trump does, that its existence converts social-media companies into state actors. Trump says that Section 230 is “an unconstitutional delegation of power Congress cannot exercise,” but that gives away the game: The companies are not exercising a congressional power, but the power of any private owner to exclude unwanted people from its property. The government is not responsible for a decision it “permits but does not compel.” Flagg Bros., Inc. v. Brooks (1978).

Perhaps recognizing that Section 230 itself does not turn Twitter into an arm of the government, Trump’s lawyers try a second tack: They argue that persistent legislative pressure on social-media companies means that they were essentially acting as a cat’s paw for Congress in banning Trump and in formulating their inconsistently applied banning policies. This argument, at least, has some common-sense force: There is no question that there was public pressure on these companies, and that legislative jawboning and threats to revoke Section 230 influenced their decisions. But, again, this is not a viable legal theory of state action.

As then-justice William Rehnquist wrote for the Supreme Court in Blum v. Yaretsky (1982), “a State normally can be held responsible for a private decision only when it has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State.” That means government control, not just government influence; indeed, the Court in Blum rejected Justice William Brennan’s argument that government incentives or implicit threats were enough to show that heavily regulated businesses (in Blum, nursing homes) were state actors. Legislators lean on private companies all the time in order to influence their decisions, but by itself, that does not show state action. After all, companies do not always listen to what members of Congress say, given how often legislators huff and puff but do not actually pass new laws. Indeed, the complaint details years of efforts by Democrats to get Trump kicked off Twitter, yet only in the immediate aftermath of the Capitol riot on January 6, 2021, did Twitter actually do so.

The Second Circuit was, in my view, way off base in ruling that Trump’s Twitter was a public forum for First Amendment purposes, precluding him from blocking people while he was using it in his official capacity as president. The fact that a private company had the superior power all along to disable features of Trump’s account or ban him altogether showed the absurdity of that theory. But Trump, at least, was unquestionably a state actor at the time, and the public/private line in state-action law is clearer than in First Amendment public-forum law.

Put simply, because there is no state action, these lawsuits should be dead on arrival.

Not a Class Action, Either

Even if Trump’s lawsuits were not fatally defective, they also have no business being framed as class actions. Among the essential elements of a class action are that the named plaintiff who brings the lawsuit is similarly situated to the other members of the class, brings claims typical of the class, and is not subject to unique defenses that would threaten to become the focus of the litigation. None of this is true of Donald Trump, who very famously is the focus of anything he sets foot in.

Trump says right up front that he used Twitter as “an instrument of his presidency.” Most Twitter users do not. Indeed, in a neat bit of rhetorical jujitsu, he cites the Second Circuit’s decision as proof that his tweets “were, in fact, official presidential statements made in a ‘public forum.’” He says that he was harmed by being deprived of “(1) daily communications necessitated by his unquestioned position as head of the Republican Party; (2) campaigning for Republican 2022 candidates; (3) fundraising for the Republican Party; [and] (4) laying a foundation for a potential 2024 Presidential campaign.” And his theory of congressional pressure on Twitter cites numerous specific examples of members of Congress and Twitter CEO Jack Dorsey discussing whether to ban Trump from the platform — a level of governmental and senior-management interest that is unique to Trump. In the unlikely event that these lawsuits got past the pleading stage, any court in its right mind would recognize that the issues specific to Trump would totally dominate the case.

Moreover, the class is defined as “All Twitter platform Members who reside in the United States, and between June 1, 2018, and today, had their access to their social media accounts wrongly restricted or curtailed by these Defendants and who were damaged thereby.” (Emphasis added). Now, the complaint seems to define “wrongly” simply to mean that Twitter should not have the legal power to limit anybody’s Twitter account for any reason. But even if the First Amendment governed banning decisions, the government sometimes has the right to kick people off of public forums for reasons that have nothing to do with their opinions. Arguments over whether Twitter bans were improper would drag the court into decisions about whether each class member’s ban was actually “wrongful.” After all, as the Supreme Court recently held in Ramirez v. TransUnion, a class cannot include people who suffered no legal harm. But the question of the wrongfulness of any individual ban will be a fact-intensive question that cannot possibly be generalized across all members of a class.

If Donald Trump wants to write op-eds calling for Section 230 reform, that is his right. The issue is a legitimate one. His class-action lawsuits, however, are a frivolous abuse of the judicial process.