Former President Donald Trump filed a brief in the Ninth Circuit last week, appealing the dismissal of his lawsuit against Twitter for removing posts about election fraud. Trump’s new brief argues that by bullying Twitter to suppress election fraud content, Democrats transformed Twitter from a private company into a government actor that can be sued under the First Amendment. Yet treating Twitter as the government as Trump asks the court to do is part of a larger legal effort to force social media platforms to host the content certain politicians prefer. Ironically, this effort could threaten First Amendment freedoms online.
The First Amendment prevents the government from interfering with private speech. It does not prevent private companies like Twitter from removing users’ speech. Thus, Twitter cannot generally be sued for violating its users’ First Amendment rights when it removes their posts because the First Amendment does not apply to its operations.
In fact, Twitter has its own well-established First Amendment right to choose what content it hosts and removes. This right, called editorial judgment, is what allows childrens’ platforms to remove inappropriate content, permits Christian platforms to remove atheist advocacy material and forbids the government from forcing any platform to host the content it prefers. This is a great thing: platforms’ ability to moderate content is critical to most users’ enjoyment of them. Yet if the court agrees with Trump that Twitter was actually the government when it removed the election fraud content, longstanding protection for editorial judgment could be compromised in the Ninth Circuit.
To be sure, the growing trend of government officials trying to bully social media platforms is contemptible. The government should never be able to censor protected speech, directly or by proxy. For this reason, federal courts have rightfully determined that private companies’ editorial or commercial decisions were products of government coercion in the past. In Backpage v. Dart, for example, the Seventh Circuit found Sheriff Tom Dart violated the First Amendment for explicitly threatening legal action against a company if it did not take action against online content he didn’t like. Critically, the coercion claim in Backpage was filed against a government actor. There should always be a strong presumption that First Amendment claims of censorship by coercion should be directed at the government actor doing the coercing, not the private speech intermediary, like Twitter in Trump v. Twitter.
It is not clear how the Ninth Circuit will rule in Trump’s case. Courts are still divided on what the correct legal standard for finding impermissible coercion in private editorial decisions should be – whether an explicit, credible threat of adverse action from a government actor is necessary or merely a reasonable inference of a threat. Further, there are many reasons why Twitter would independently decide to try and contain election fraud material, including a fear of losing revenue from advertisers or a genuine belief that it should prioritize tackling the spread of misinformation. Twitter’s decision to remove election fraud content after Democrats attempted to bully them into doing so does not establish that Twitter acted as a proxy for the government.
If the court agrees to treat Twitter as the government rather than a private company, it could clear the way in the Ninth Circuit for platforms to be sued for any politically-controversial moderation decision they make. Absent a clear display of government coercion – or basis for a reasonable inference of government coercion – exposing platforms to liability for moderating certain content could threaten free speech on the internet.