Contributing Author: Bryan Sullivan
Donald Trump’s presidency was as mired in legal battles as his businesses are to this day, and he is now using the courts as a weapon in an effort to free himself from his social media ban. His latest legal effort, proposed class-action lawsuits announced Wednesday against Twitter, Facebook, and YouTube (a subsidiary of Google), and their CEOs, Jack Dorsey, Mark Zuckerberg, and Sundar Pichai, takes aim at the tech and social media giants, their protections under Section 230 of the 1996 Communications Decency Act, and their ability to operate their businesses on their own terms.
This claim (like so many of his others) is beyond preposterous and likely would be rejected by every Supreme Court Justice, including his own appointees. After all, if coordinating with the government, or following government guidance, were to make an entity a “state actor” or an agent of the state, one could easily argue that anyone following an existing law or reporting a crime would likewise be an agent of the government. Indeed, Walmart would be a state actor for mandating their customers wear masks pursuant to CDC guidelines.
Trump’s announcement comes on the heels of an injunction blocking Florida’s new social media law, SB 7072, from taking effect, on the grounds that it is both overbroad and a violation of the social media companies’ own First Amendment rights. The law would restrict online platforms from banning or suspending politicians, and allow politicians to sue if they were removed from a platform. In his decision, Judge Robert Hinkle of the U.S. District Court for the Northern District of Florida equated the law to “burning the house to roast a pig.” While the law has a chance of going into effect (Governor DeSantis’ office announced they plan to immediately appeal), Hinkle said he granted the injunction because the plaintiffs were likely to prevail on the merits of their challenge, and also pointed to the apparent conflict with Section 230. The plaintiffs, NetChoice and the Computer and Communications Industry Association, both count Facebook, Twitter, and Google as members.
Trump has already begun fundraising to support this new lawsuit via emails to his supporters soliciting additional potential plaintiffs to join the class action. But, Trump is risking significant blowback from this lawsuit because, as a class plaintiff, he will be subjected personally to potentially broad ranging discovery by three of the largest companies in the world who have the funding to engage in scorched Earth litigation. Moreover, unlike during the time that Trump was President, he will not have the protection of that Federal office to delay discovery and, as a plaintiff bringing an action, cannot completely dodge responding to discovery as he did during the civil suits during his presidency. It will be interesting to see if the Big Tech companies will use this lawsuit to bring Trump to his knees and expose many of his secrets that he likely wants to keep secret, or if they will treat this as the frivolous lawsuit that it is.
Bryan Sullivan, Partner at Early Sullivan Wright Gizer & McRae, advises and represents his clients as a legal strategist in all their business affairs. He has significant experience on the litigation and appeals side of the practice, as well as with entertainment and intellectual property contracts, investment and financing agreements, and corporate structure documents on the dealmaking side.