“We are demanding an end to the shadow banning, a stop to the silencing, and a stop to the blacklisting, banishing, and canceling that you know so well,” Trump said. “Our case will prove this censorship is unlawful, it’s unconstitutional, and it’s completely un-American.”
Trump’s political operation issued fundraising appeals almost immediately after the announcement, a sign that his team believe the effort will animate and excite members of his base.
Trump was permanently banned from Twitter and suspended indefinitely from Facebook and Instagram in response to posts he made surrounding the Jan. 6 assault on the U.S. Capitol led by supporters of his. A long line of court rulings has held that such suspensions do not violate any First Amendment right, despite Trump’s claim to the contrary.
“There is no better evidence that big tech is out of control than the fact that they banned the sitting president of the United States earlier this year. A ban that continues to this day,” he said. “If they can do it to me, they can do it to anyone. And in fact, that is exactly what they are doing.”
The suits allege that the former president’s First Amendment rights were infringed by the companies’ actions and that they have exceeded their protections granted under Section 230 of the Communications Decency Act of 1996.
The lawsuit is being supported by the America First Policy Institute, a newly established nonprofit stocked with ideological allies and former Trump administration officials to advance the former president’s agenda after he left office. The litigious former president has a decades-long history of both suing, and threatening to sue, dating back to his career as a New York City real estate developer.
Trump was accompanied by Brooke Rollins, AFPI’s president and CEO, and board chair Linda McMahon. McMahon led the Small Business Administration under Trump and Rollins served as a top White House domestic policy adviser during his administration.
Trump has bitterly complained about losing his social media megaphone in the wake of the Jan. 6 insurrection, arguing that his explusion from those platforms is evidence of bias against conservative speech by the tech giants. In June, Facebook announced that the earliest Trump would be allowed to regain access to his accounts would be 2023.
Despite the popularity of right-wing figures on major social media platforms, Republicans have become increasingly animated around the idea of “big tech censorship” and sought ways to rein in these companies. Florida lawmakers pushed through a law that would bar platforms from banning political candidates or risk hefty fines, but a federal judge last week issued a preliminary injunction blocking its implementation.
Several copycat social media platforms have sprouted up that market themselves as friendlier turf for the MAGA faithful, including one recently backed by Trump adviser Jason Miller that has ties to Guo Wengui, a Chinese billionaire who is close to right-wing firebrand Steve Bannon.
Trump has pursued several alternative avenues to get his message out as he remains a central force in GOP politics, including an abortive foray into blogging that lasted roughly a month. But he has not signed onto the Miller-backed Twitter competitor, called GETTR.
In response to a reporter’s question, Trump said he was unsure he would rejoin the social media platforms even if he was allowed back on in response to the lawsuits.
Representatives for each of the three companies each declined to comment on Trump’s announcement.
Axios first reported Wednesday morning on Trump’s lawsuits.
The litigation faces an uphill battle in the courts, since the First Amendment applies only to governmental action, not the activities of private parties. The suits seek to overcome that obstacle by arguing that the social media companies’ moves amounted to “state action” because they acted “in concert with federal officials, including officials at the CDC and the (Biden) White House.”
The cases also target Section 230 itself, although that provision has been upheld by numerous courts and found to grant broad immunity to websites to police content on their platforms as they see fit without facing liability for the content they leave up.
The Supreme Court ruled nearly a half-century ago that newspapers’ own First Amendment rights mean they cannot be required by state law to print political materials, such as rebuttals to editorials or endorsements.
Santa Clara University law professor Eric Goldman recently conducted a study of 61 court cases over termination or blocking of social media accounts.
“The top-line headline is: They all lost,” Goldman said. “The plaintiffs can’t win bringing those cases. They’ve tried all the arguments Trump tried and a whole bunch more and they’ve gone nowhere. Ninety percent of those cases have failed at the motion-to-dismiss stage.”
By filing three separate lawsuits, Trump is likely to have the cases assigned to three separate judges, possibly increasing his chances of a longshot ruling in his favor at the trial court level.
Trump’s suit against YouTube was assigned to Judge K. Michael Moore, a George H.W. Bush appointee. The case against Twitter was assigned to Judge Robert N. Scola Jr., a Barack Obama appointee. The suit against Facebook is still awaiting assignment.
The main law firm behind the cases is Greenwich, Ct.-based Ivey, Barnum & O’Mara, whose website does not claim any special expertise in internet or technology-related litigation. Among the attorneys signing onto the cases is Washington-based trial lawyer, John Coale, who worked closely with the Clinton White House in the 1990s on the tobacco settlement. Coale has since displayed eclectic political interests, advising figures such as former Govs. Sarah Palin (R-Alaska) and Martin O’Malley (D-Md.)