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Trump Got Free Speech Wrong Suit Over Ban, Twitter Says

Twitter has asked to throw out Trump’s lawsuit over his permanent ban from the platform for stoking the U.S. Capitol riot.

Trump Got Free Speech Wrong Suit Over Ban, Twitter Says
The suspended Twitter Inc. account of U.S. President Donald Trump on a smartphone. (Photographer: Graeme Sloan/Bloomberg)

Twitter Inc. asked a federal judge to throw out Donald Trump’s lawsuit over his ban from the platform for stoking the U.S. Capitol riot, arguing the company’s right to free speech is at stake -- not the former president’s.

Twitter’s First Amendment rights “are at their apex” in the case because the editorial decisions Trump is challenging relate to matters of public concern, including threats to the peaceful transfer of power, Twitter and its co-founder Jack Dorsey said in a San Francisco federal court filing.

Trump “agreed to abide by Twitter’s rules, and yet proceeded to repeatedly violate those rules” before, during and after the deadly assault on the Capitol by a mob of his supporters, with tweets that “could encourage further violence,” the company said in its filing late Thursday.

Trump’s free-speech claim also ignores “that Twitter is a private actor that is not constrained by the federal constitution,” the company said. The government “cannot force the private operator of an online platform, such as Twitter, to disseminate speech with which the operator disagrees.”

Trump is fighting bans or suspensions from Twitter, Meta Platforms Inc.’s Facebook and Alphabet Inc.’s Google, accusing the tech giants of trying to silence conservative views and violating his free-speech rights. He’s also pressing ahead with plans to launch a rival social-media platform as part of a new media company with “non-woke” entertainment and news.

John P. Coale, who is leading Trump’s lawsuits against the companies, argued that Twitter qualifies as a “state actor” due to a 1996 law that gives internet companies broad legal immunity over their moderation of user-generated content. That immunity amounts to a massive subsidy that requires Twitter to abide by the First Amendment just like the government, he said.

“If they didn’t have that immunity and they were doing what they do now, they’d have billions of dollars in judgments against them,” Coale said in a phone interview on Friday. “Take away that immunity and they’d have 100,000 lawsuits a week.”

Broad Immunity

The Biden administration has intervened in the case. The 1996 law, Section 230 of the Communications Decency Act, “does not regulate” Trump’s speech, the U.S. Justice Department said in a court filing Thursday. “Instead, the statute establishes a content- and viewpoint-neutral rule prohibiting liability for certain conduct by providers of interactive computer services.”

The Justice Department said it intervened for the “limited purpose” of defending Section 230.

Section 230 has become a target of conservatives who say it allows left-leaning tech companies to censor right-wing voices, and Trump claims it is unconstitutional.

Twitter’s filing outlined Trump’s actions leading up to the ban, including posting tweets that repeatedly violated Twitter’s Civic Integrity Policy after the election by tweeting false information about the vote. Twitter initially labeled the tweets “misleading” and left them up in the days leading up to the Jan. 6 attack on the Capitol, but took a harder line and locked his account when he wouldn’t stop, it said. 

Trump, who is weighing a 2024 run to return to the White House, continues to falsely claim that the election was stolen.

Blocking Twitter from making such decision “would upend bedrock principles of constitutional law,” the company said.

Oral arguments in the case are set for Feb. 23 before U.S. District Judge James Donato, an Obama appointee.

The case is Trump v. Twitter, 3:21-cv-08378, U.S. District Court for the Northern District of California (San Francisco).

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