By Jack Phillips
Legal scholar Alan Dershowitz on Wednesday said that President Donald Trump’s class-action lawsuits against Facebook, Google, and Twitter are “very, very important” for the future of free speech in the United States, arguing that the Big Tech firms have special exemptions from the government and aren’t just any ordinary private companies.
The former president, during a news conference in New Jersey, announced several lawsuits were being filed in the U.S. District Court in the Southern District of Florida. They’re asking a judge to order an immediate halt to social media companies’ alleged shadowbanning, censoring, blacklisting, and canceling of people. Trump is also seeking punitive damages.
Dershowitz, a Harvard Law professor emeritus, told Newsmax that recent actions taken by the social media giants are “inconsistent with the spirit of free speech that underlies our First Amendment.” According to him, the lawsuit “will shake things up considerably, though I can’t predict in the end how it will come up.”
Trump’s suit, he continued, is “a complicated case because, as the president pointed out, and as lawyer Pam Bondi pointed out, the others pointed out, these are not just ordinary private companies—they have special exemption … and therefore they partake of some kind of government action, and the courts will have to parse this issue.”
Facebook, Twitter, Google, and other platforms, under Section 230 of the 1996 Communications Decency Act, are generally protected from liability for the content that users post. The law allows social media companies to also moderate their platforms by removing posts that violate their terms and conditions as long as they’re acting in “good faith.”
Bondi on Wednesday suggested that Section 230 is currently outdated because it was drafted in the mid-1990s with the intention to protect children from harmful content online. The way in which Big Tech firms currently use the law as a shield, she argued, oversteps what it originally intended to do.
Twitter, Facebook, and Google-owned YouTube suspended Trump’s accounts in January, claiming that the former president incited violence on Jan. 6 and said he violated the companies’ terms and conditions regarding allegations about election fraud.
“What we don’t want is the government telling private companies what they can say and what they can do,” Dershowitz said. “That would be wrong, but we don’t want these crazy, public, enormous, monopolistic companies to be restricting our free speech. The current situation is unacceptable, and this lawsuit, I think, will shake things up considerably, though I can’t predict in the end how it will come up.”
Dershowitz further noted that private firms should be able to regulate content on their sites—a common argument that has been deployed against Trump and others who have been suspended.
But he said the “argument on the other side is they’re not really private, and the courts are going to have to resolve that.”
“There is some precedent on that, there’s a case called Marsh v Alabama, where a company town, a town-owned by a company, forbade free speech and the Supreme Court said, ‘no, although it’s owned by a company it partakes of the public and therefore the First Amendment applies,’” Dershowitz said.
He added: “Clearly what’s happening here is prior restraint. That is, they’re telling the former president of the United States, ‘we don’t want you on our platforms, no matter what you say, we’re going to restrain you.’ So, the issue is not so much prior restraint. I think everybody will acknowledge this is prior restraint. It’s whether or not the prior restraint is subject to the First Amendment or Trump himself has a First Amendment right. That’s what’s so complicated about this, that’s why I call this the new censorship. The old censorship involved pure government. McCarthyism. Congress. Today we have these companies that are the new censors.”