Last month, Facebook’s “oversight board” announced that the company would bar former president Donald Trump from the social media network’s platforms for two years, which by total coincidence is exactly one congressional election cycle.
At that point, the board said, it will consider whether the nation has the same levels of “violence, restrictions on peaceful assembly, and other markers of civil unrest.” The board’s evaluation of American society’s stability will determine whether the 45th president of the United States will be allowed to post on Facebook and Instagram.
This recalls a joke that circulated during the 2008 financial crisis: “If you owe the bank $100 and you can’t pay, you’re in trouble. If you owe the bank $100 million and you can’t pay, the bank is in trouble.”
Seventy-four million Americans voted for Donald Trump’s re-election, including 6 million people in California. So it’s possible that Trump can cause more trouble for Facebook than Facebook can cause for Trump. Place your bets.
The former president is suing Facebook, along with Twitter and Google (owner of YouTube). At a press conference, Trump said the purpose of the lawsuits is to seek an “immediate halt to social media companies’ illegal, shameful censorship of the American people.” He’s seeking class action status for the lawsuits, which were filed in federal court in Florida.
Whether the censorship is illegal remains to be seen. Florida Governor Ron DeSantis signed a law that allowed the state to fine large social media companies for removing the accounts of candidates, but enforcement of the law was blocked when U.S. District Judge Robert Hinkle agreed with the tech companies that a law that “compels providers to host speech that violates their standards” likely violates the First Amendment.
Trump’s lawsuit takes the opposite view, arguing that the tech companies are coordinating with the federal government to choose individuals and messages to censor, and that it’s a violation of the First Amendment for the government to censor speech by acting through a third party.
This argument is only one of three legal battles involving big tech. There’s also a heavyweight fight over Section 230 of the Communications Decency Act and another one over the federal antitrust laws.
The Communications Decency Act was passed in 1996. Section 230 states, “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another content provider.” This protects online companies—from the behemoth social media platforms to the smallest bloggers—from being held liable for the words, pictures or videos posted by users or commenters, with exceptions for certain criminal actions or copyright claims.
According to the Electronic Frontier Foundation, these protections are “unique to U.S. law” and part of the reason that “most prominent online services are based in the United States.”
Many politicians, including Donald Trump and Joe Biden, have been critical of Section 230. The tech companies have a vulnerability here, and the Trump lawsuit could be targeting it. If the lawsuit reaches the discovery phase, it’s always possible that revelations might cause an uproar and affect future legislation, to the tech companies’ detriment.
Another vulnerability for the tech giants is antitrust, a set of ambiguous laws that prohibit unfair competition, as defined at any given moment. Microsoft was pursued to the ends of the earth for giving away a free internet browser in 2001. In January, the startup social media app Parler was de-platformed by Apple, Google and Amazon. Does that violate antitrust laws?
If not yet, maybe soon. The House Judiciary Committee recently passed six antitrust bills that would prevent big tech companies from using their platforms to discriminate against rivals. The legislation also would bar the largest tech firms from buying startup companies that could become competitors, and from favoring their own products instead of offering competitors a level playing field.
For tech companies, the First Amendment is the least of their problems.
For the American public, however, there’s reason to be concerned when the White House press secretary complains to reporters, as Jen Psaki did recently, that Facebook isn’t moving quickly enough to remove people and posts that the White House wants off the internet.
Trump’s lawsuit against Facebook argues that the tech companies’ censorship has resulted in “a chilling effect cast over our nation’s pressing political, medical, social, and cultural discussions.”
Not for the first time, Trump is saying what a lot of people are thinking.
Write Susan Shelley: Susan@SusanShelley.com and follow her on Twitter: @Susan_Shelley.
