Social Media Companies Are Not State Actors


Tuesday, July 20, 2021

Note: The following is the second of two articles where Lone Conservative contributors give their opposing thoughts on former President Trump’s social media lawsuit. Please be sure to check the homepage for the opposite viewpoint which was posted earlier today. 

Earlier this month, President Trump announced he will be launching a lawsuit against the CEOs of Twitter, Facebook, and Google in response to their deplatforming of the former President. While the suit has been characterized as “frivolous” by legal experts, the arguments made are important ones to address. 

Much of the debate around big tech censorship today hinges upon Section 230 of the Communications Decency Act. Section 230 serves as legal protection for platforms such that they cannot be held liable for content posted to their site by third-party actors. The difference between Twitter and a news outlet that publishes stories is that Twitter does not approve messages before they are published. 

The basic argument against Section 230 is that, by removing certain content from their site, Twitter shifts into being a publisher, rather than simply an open platform. Some argue that they should actually be held liable for speech they choose to not remove. President Trump was outspokenly against Section 230 throughout his presidency, and it has become a focal point for the conservative pushback against big tech.

However, the common refute of this is that private companies are in fact allowed to remove content that violates their rules, as the First Amendment does not apply to these platforms, only to state actors. 

Trump’s suit argues that tech companies are state actors because of their utilization of the protections outlined under Section 230. This is an absurd leap in logic and one that is easily refuted. 

While some may argue that the level of collaboration between the CDC and social media platforms during the pandemic constitutes state action, the state action provision requires that a state actor is responsible for the specific violation. In order to prove this claim, Trump’s lawyers would have to prove that these platforms have acted directly on behalf of the federal government to censor Trump and other conservatives. This simply has not happened.

There is legal precedent that stands in the way of this type of lawsuit. 

PragerU v. Google is a 2020 suit that argued, similar to this case, that YouTube is a state actor and thus restricting speech on their platform is a violation of the First Amendment. The Ninth Circuit Court of Appeals rejected their claims, explaining in their decision that “PragerU posits that a private entity can be converted into a public forum if its property is opened up for public discourse. This theory finds no support in our precedent.” 

Other past suits have been just as swiftly turned away. An article from the Associated Press identifies “more than 60 similar, failed lawsuits that sought to take on internet companies for terminating or suspending users’ accounts.” Many of these past lawsuits have used the “state actors” argument to no avail. 

The legal precedent for these types of cases is heavily stacked against these arguments. Just like the many that came before it, Trump’s lawsuit seems destined to fail. 

The First Amendment applies to government censorship of speech, not private companies. The same way you can be given detention in school for yelling expletives at your teacher, tech companies can remove you from their platform for violating their rules. Freedom of speech does not mean freedom from consequences. 

While it is shameful that private companies have this level of power over the American people, this is not a consequence of the platforms themselves but rather our reliance on them. Laws do not change with scale. Even if a corporation’s services are utilized by a large number of Americans, their right to refuse service still stands, especially to those that they view to be in violation of the terms and conditions. The First Amendment gives you a right to speak, not the right to an audience.

While most reasonable individuals can come together to speak out against the censorship of conservatives on social media platforms, the Trump lawsuit will not cause change. Moreover, the courts agree the argument that big tech is a state actor remains preposterous. This class action suit is nothing more than a rallying cry from Trump to his base against the big tech entities that wronged him.

Dace Potas is an editor and columnist for Lone Conservative. He studies political science at DePaul university and has bylines in The College Fix and Just The News.

The views expressed in this article are the opinion of the author and do not necessarily reflect those of Lone Conservative staff.

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About Dace Potas

Dace Potas is an editor and columnist for Lone Conservative. He studies political science at DePaul university and has bylines in The College Fix and Just The News.

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