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Former Washington AG: Trump lawsuit against big tech could set new rules for social media

Former U.S. President Donald Trump speaks during a press conference announcing a class action lawsuit against big tech companies at the Trump National Golf Club Bedminster on July 07, 2021 in Bedminster, New Jersey. (Photo by Michael M. Santiago/Getty Images)

Former President Donald Trump is suing big tech companies for kicking him off their platforms, claiming that his constitutional rights have been violated.

Most have dismissed his chances of winning this lawsuit, but there was a piece in the Wall Street Journal cautioning that “he may have a point here.”

Ross: The real reason for Trump’s constant battle against big tech

As former state Attorney General Rob McKenna explained, Trump has been “de-platformed, a new word for the 21st century.” He is suing Facebook, Twitter, and Google, which owns YouTube.

“He’s arguing that his First Amendment rights are being violated, and so are the members of the putative class that he is suing on behalf of — so this is actually a class action — since of course, there are others who have been de-platformed as well,” McKenna told Dave Ross on Seattle’s Morning News. “And you’re right that his lawsuit isn’t getting much credit. Most commentators have panned it, said that it’s not going anywhere, and they’re basing that on some pretty strong case law from the past.”

“But, in the Wall Street Journal, a couple of lawyers who have worked on other cases involving whether an entity is a state actor or not are saying, ‘no, these social media platforms might be state actors subject to the First Amendment,’ and that’s really going to be the heart of this case, I think,” he added.

The argument is a matter of whether the government has essentially taken a private entity, McKenna explains, and turned it into a state actor or informally made it part of the government.

“A broader argument is that they have become public forums, authorized by the government because of the immunity granted to them, and so they’re subject to First Amendment restrictions there too,” McKenna said. “So we’ll have to see whether or not the courts believe that these social media platforms have become so important that they constitute public forums that cannot discriminate based on viewpoint.”

Last year, as McKenna explained, Justice Clarence Thomas wrote an opinion saying that these platforms have become so important and are so essential to communication that it can’t be left to corporate executives to decide who can access them and who cannot.

“Now, I think the primary question is whether or not the social media platforms can exercise editorial judgment the way newspapers can, and decide to keep people off the platform altogether,” he said.

“As we said at the beginning, you’ve got the fact that these are privately owned platforms, they’re not state actors,” McKenna continued. “There’s an argument that they could be treated as state actors, and maybe they’ve become state actors because they’ve been immunized from liability for what’s posted there by federal law. Or you could have the approach taken by Justice Clarence Thomas, where, that was in that case where they they turned down a review of a case on whether Mr. Trump had violated the First Amendment by blocking people from his Twitter account.”

In that case, Twitter, or at least Trump’s account, had become a kind of public forum.

The other thing, as Dave pointed out, is that Trump wasn’t kicked off Twitter and YouTube until after Jan. 6. He was kicked off for violating the terms of service, for allegedly fomenting an insurrection.

“I think it does make a difference. I think you’ve just put your finger on the greatest weakness in his case, which is the idea that these platforms cannot enforce their own terms of service,” McKenna said. “They’re going to argue vociferously that they not only can, but really need to be able to enforce their terms of service so that their platforms are not turned into sites for inciting insurrection or other kinds of violence. So I think that they’re going to end up looking more like newspapers exercising editorial judgment than some entity that has created a public forum and is arbitrarily excluding people.”

“As long as their terms of service are reasonable in the eyes of a court,” McKenna added, “I think they’re going to be allowed to enforce them.”

Listen to Seattle’s Morning News weekday mornings from 5 – 9 a.m. on KIRO Radio, 97.3 FM. Subscribe to the podcast here.

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