Former President Donald Trump gave highly frustrated Americans a reason to hope last week when he announced his class-action lawsuit against censorious Big Tech giants Twitter, Facebook, and Google.
The Silicon Valley triumvirate has maintained a stranglehold on information in our country, and everyday Americans are tired of their speech being censored, deleted, and ‘given context’ by leftist elites who claim to know better. The New York Times and other corporate media giants were quick to defend their allies in California, castigating Trump’s lawsuit as frivolous and doomed to fail.
But the fact is that Trump’s case stands on an interesting, albeit new and questionable, legal footing. The outcome could be as the media paints it, or it could represent an expansion of the First Amendment and the beginning of the end for our Big Tech overlords.
Trump’s legal team lays out a fascinating theory that’s been gaining ground in academic circles for several years. In simple terms, they argue that private companies like Google become subject to First Amendment restrictions as soon as they begin to act as state agents.
It’s true that the First Amendment only applies to the government, not private companies.
However, when Twitter acts under the authority, influence, or pressure of the government, the theory goes that it becomes a state actor and forfeits the right to ignore the First Amendment protections that Americans expect in the public square. Again, when someone like Twitter cozies up to the government and does its bidding, it could become a government actor.
Trump and other victims of Big Tech censorship have every right to sue on First Amendment grounds, and it’s going to be up to the courts—and potentially the Supreme Court—to decide if First Amendment protections can apply to private actors acting under government authority, influence, and coercion, or with their cooperation.
It’s a novel theory, but it’s one whose time may have come.
Big Tech controls virtually all information in this country, and as we saw throughout the COVID-19 pandemic, they’re in lockstep with the government. Americans shouldn’t have to worry that their speech will be censored by a small group of ultra-powerful companies, and the courts must step in to protect the free speech rights of all citizens.
Trump’s lawsuit is interesting for another reason as well.
Instead of suing simply on his own behalf, Trump has chosen to file class actions. This creates a two-step legal analysis.
The first move will be motions to dismiss by the plaintiffs, as they argue that the First Amendment doesn’t apply to private parties.
If Trump’s claims survive this challenge, then the second step will be around the merits of a class-action lawsuit. The defendants will object that a class action is only appropriate if all the people have basically the same case. This is a factual determination for the court.
What makes this interesting is that Trump’s team can get early discovery on this issue, meaning that his attorneys can dig in and ask for documentation on who is being silenced, de-platformed, censored, etc. Details such as who, how much, by what means, and how often would all be relevant to a determination of class certification. The “shadow banning” that has become the norm for conservative Americans will be exposed, and this alone could force Big Tech companies to come to the table.
Whatever comes of this lawsuit, it’s an excellent maneuver for Trump and conservatives generally. He will be seen as a hero for financing the fight against Big Tech, and it will raise his profile at a time when his presence in the public eye has been waning.
Americans are tired of Big Tech silencing and deleting their opinions about COVID-19, vaccines, and gun control. They’re tired of their accounts being suspended or deleted for speaking their mind, and they’re fed up with the elitism of the Big Tech companies.
Recent polling by Rasmussen Reports backs up what many are hearing in their personal circles. According to the survey, 63% of voters believe Big Tech companies should be required to abide by the First Amendment guarantee of free speech. 68% of voters believe it is more important to ensure that social media companies operate fairly than to be protected from government interference, while only 19% disagree.
The day of Big Tech dominance is coming to an end.
Whether or not Trump’s lawsuit is successful, his shot across the bow marks the beginning of a movement that will end if the American people have their way, in more freedom, less censorship, and the breakup of the Silicon Valley information monopoly.
• Mark Meckler is fmr. CEO of Parler, an attorney, and President of Convention of States.