Commentary on Political Economy

Friday 9 July 2021

 Legally, Trump’s tech lawsuit is a joke. But it raises a serious question.

Opinion by Fred Hiatt

July 09 at 6:23 am GMT+08:00

Former president Donald Trump’s lawsuits against Facebook, Twitter and YouTube have been rightly derided as wrong on the facts, preposterous on the law and doomed to be thrown out of court.

Which is all true — except that many people will not find Trump’s complaints, in this case, all that unreasonable.

It just doesn’t feel right, in other words, that company CEOs Mark Zuckerberg, Jack Dorsey and Sundar Pichai get to decide which politicians Americans can hear and which ones we can’t. Everyone mocking Trump’s misreading of the First Amendment would be foolish to dismiss that feeling.

Facebook, Twitter and Alphabet (which owns Google and YouTube) barred Trump from their platforms after he incited violence on Jan. 6. They are private companies, and they had every right to do so. They may (and most people would agree, should) ban child pornography, racist appeals or, yes, calls to violence.

Trump’s first response to being blackballed was to bluster about how he didn’t need those platforms, anyway. He would create his own, and make a fortune in the process. He would start a blog. His fans would find him.

Not much has come of those boasts. Trump abandoned his lightly read blog after 29 days. Now he is suing to get back onto the mainstream platforms, claiming they are violating his First Amendment rights.

Of course, the First Amendment bars the government from infringing on speech. It doesn’t require The Post, say, to publish an op-ed that we don’t want to publish.

Trump’s lawsuits purport to get around this little problem by claiming that Facebook, Twitter and YouTube are “state actors.” Which is, as experts told The Post, a “crackpot theory” and a “complete misinterpretation” of law.

But the fact that Trump failed so miserably to find alternatives to these platforms reinforces the common-sense feeling that they are not ordinary private businesses. Most people understand that they are private companies but also that, in today’s America, if those three are silencing you, you are being excluded in a serious way from the public square.

And many understandably wonder: Why should they get to make that call?

Trump’s lawsuits certainly don’t point the way to an answer. Critics are right to note his history of filing meritless suits, for publicity or intimidation, and to suggest that the fate of these will be no different — though they undoubtedly will provide a valuable fundraising tool for him along the way.

Critics are also correct that Trump’s claims to class-action status are as far-fetched as his constitutional argument. Their very loud complaining notwithstanding, conservatives are not barred from these platforms. What the platforms have tried to limit, belatedly in the view of many critics from the other side, are calls to violence and lies — about election fraud, vaccine dangers and other subjects.

Yet that brings us back to the hard question: Do we want Facebook CEO Zuckerberg making those judgments?

His own answer has been no: Facebook has called for government regulation, so that rules about speech in the digital world would be given some level of democratic legitimacy. In the meantime, he also has directed Facebook to behave a bit more like a state actor, creating a kind of internal “supreme court” that can evaluate the company’s decisions on speech and, in some cases, overrule them.

In another era, when broadcast networks dominated public debate in ways arguably comparable to the platforms’ presence today, the government did regulate. A fairness doctrine required networks to cover important public controversies and give opposing sides equal time when they did so.

Would it be possible to re-create such regulation today? Which platforms would we include? Who would decide what’s fair? Given today’s partisanship, do we really think the government could devise and enforce rules in ways that most Americans would accept as even-handed?

Having just survived four years of a president determined to twist the powers of government to serve his own interests and illegally perpetuate his rule, I would think twice, and twice more, before putting the Justice Department or the Federal Communications Commission in charge.

Alternatively, you might try to break up the platforms or limit their size. But then we might just find ourselves further atomized into our political tribes.

At a minimum, the seductiveness of the unfairness complaint should serve as a cautionary note to those people, myself included, who have criticized the platforms for not moving more quickly, in this country and others, to ban dangerous speech.

I still think they have an obligation to do so at times. But they are not wrong to fear the cost of any apparent high-handedness. Trump has no legal case. Underneath all his lies and self-pity, though, he may have a point.

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