Donald Trump may have forgotten all about his insane clown tech suits seeking to get himself back on Twitter, Facebook, and YouTube — he’s certainly got other distractions this week. But the LOLsuits haven’t forgotten about him. So yesterday Trump’s lawyers filed motions ‘splaining to US District Judge Jeffrey White why the claims against Meta and YouTube shouldn’t get back-burnered now that the Twitter suit has been dismissed and appealed to the Ninth Circuit.
A year ago, Trump filed these turkeys in Florida alleging that the tech platforms violated his First Amendment rights by giving him the boot. His theory was that the companies were so afraid of Congress revoking Section 230 of the Communications Decency Act and subjecting them to liability for user-generated content that they became agents of the government, suppressing conservatives in a desperate bid to mollify Rep. Adam Schiff.
Never mind that Republicans have been the main proponents of axing the statute, and Trump himself vetoed a $740 million defense spending bill in 2021 because it failed to contain a provision axing Section 230. There’s also the minor detail that the former president is seeking to have Section 230 declared unconstitutional in these very law suits, so if anyone’s threatening to blow up the liability shield, it’s Trump himself.
The cases were all booted to the Northern District California, thanks to binding venue clauses in the sites’ terms of service. And in May, US District Judge James Donato dropkicked the Twitter suit, for OMG, shut up that’s not how any of this works — more or less. After which Judge White issued a show cause order in the Meta and YouTube cases demanding to know why they shouldn’t be stayed until the Ninth Circuit gets through with the appeal, at which point he will presumably yeet these two clunkers into the sun.
Meta has other worries at the moment and is perfectly content to put this thing off until we’re all litigating as digital avatars. But Trump and YouTube have found the one subject upon which they agree: this stay is a terrible idea.
YouTube would like to move to the motion to dismiss phase post haste, writing that there is “no need for further appellate guidance” here, particularly in light of the Ninth Circuit’s recent brush off of a similar “Twitter as state actor” claim without the necessity of a hearing. So far, so normal.
The former president demands that the court address his claims about the unconstitutionality of Section 230 immediately. Again, his entire theory of the case is that Democrats forced the platforms to censor conservatives by threatening to blow up Section 230. But, Trump insists, he has the right to have his claims adjudicated without delay because the defendants are asserting Section 230 as a defense to the claims made under Florida law.
The state law claims rest on a consumer protection statute — which requires the plaintiff to plead actual fraud, something Trump has not alleged — and Ron DeSantis’s hilariously unconstitutional social media law barring sites from deplatforming political candidates. The latter statute remains largely enjoined, with three Republican-appointees on the Eleventh Circuit agreeing that social media sites have every right to boot off anyone they like.
Plus, the Trump legal team is just champing at the bit to amend their complaints to add a claim that social media sites are common carriers.
If the case proceeds and the Court grants the motion to dismiss, Plaintiffs will seek leave to amend their complaint to add a claim that YouTube is a common carrier under common law and thus is prohibited from unfairly discriminating in applying its content moderation standards to users of its platform.
Since at least the 1670s, the common law has obligated common carriers to treat all comers equally and fairly. The legal regime governing today’s telecommunications industry— including social media platforms—is a direct descendant of these English common law decisions prohibiting unfair discrimination. FTC v. AT&T Mobility, LLC, 883 F.3d 848, 858-861 (9th Cir. 2017). The common carrier doctrine holds that quasi-public entities may not unfairly discriminate against customers using the service. FTC v. Verity Int’l, Ltd., 443 F.3d 48, 58 (2nd Cir. 2006). Defendants’ treatment of the Plaintiffs is in clear violation of this principle.
How you doin’, Justice Thomas?
“Please let us keep litigating because we came up with an even batshittier legal theory” is a bold strategy, Cotton. Let’s see if it pays off.
Liz Dye lives in Baltimore where she writes about law and politics.