Trump’s Lawsuit Against BigTech – Is it Viable?

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by Martin Armstrong

Anything Trump does the media will call a joke. This lawsuit they all claim Trump will lose. But their bias blinds them to two important points one of which he makes which is that they are acting under the color of law which means that the First Amendment would apply to a private person or entity. Big Tech is claiming they can do as they like because the constitution only applies to the government – not them. This may be true ordinarily, but not if someone is acting with the sanction of the government. In other words, you hire someone to kill somebody and they claim you did not kill anyone. The assassin did so under your orders so you are still liable for the murder.

This is a very loose example of what would be acting under the color of law. The central claim in Mr. Trump’s class-action lawsuit states that the defendants should be treated as state actors (under color of law) and are bound by the First Amendment when they engage in selective political censorship. This is a valid claim. Their censorship constitutes state action because the government granted them immunity from legal liability. They have clearly engaged in selective censorship nullifying free speech. That is not a frivolous claim, but I question if Trump’s lawyers have really done a good job on this issue.

Section 242 of Title 18 makes it a crime for a person acting under color of any law to willfully deprive a person of a right or privilege protected by the Constitution or laws of the United States.

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Secondly, Trump has sued Facebook and Twitter for violating his First Amendment rights. If you actually look at Section 230, it does NOT authorize censorship of political speech or canceling someone because they were against vaccines or Fauci. We typically hear that Section 230 of the federal Communications Decency Act of 1996 preempts any such state laws and shields Big Tech 100% from any lawsuits. However, that line of thought is what Big Tech wants people to believe, and it benefited Democrats sho they pretended they were correct.

However, read the statute and you will see that this is one massive misapplication of Section 230. This section only shields Big Tech from civil liability suits regarding the censorship of sexually obscene or excessively violent material. They have embarked on a political agenda that is the same method of the Communist revolutions to silence all opposition. In the vast majority of cases, political speech and cultural commentary are not sexually obscene or excessively violent.

Trump has challenged Section 230 as unconstitutional. I would argue that it is unconstitutional as applied and the censorship is in violation of 230(b)

(b)Policy
It is the policy of the United States—
(1)to promote the continued development of the Internet and other interactive computer services and other interactive media;
(2)to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation;
(3)to encourage the development of technologies which maximize user control over what information is received by individuals, families, and schools who use the Internet and other interactive computer services;
(4)to remove disincentives for the development and utilization of blocking and filtering technologies that empower parents to restrict their children’s access to objectionable or inappropriate online material; and
(5)to ensure vigorous enforcement of Federal criminal laws to deter and punish trafficking in obscenity, stalking, and harassment by means of computer.

The “intent” of Congress was NOT to allow censorship of free speech. Therefore, how Big Tech is using Section 230 is unconstitutional as applied to their practices. Most people do not know that back in 2019, BEFORE Covid,  settlement was reached in a lawsuit brought against YouTube by the state of New York and the Federal Trade Commission (FTC), which required YouTube to pay $170 million for violating the Children’s Online Privacy Protection Act of 1998 (COPPA). The settlement not only resulted in the fine but a bunch of new rules that content creators must comply with.

I do not see Section 230 as unconstitutional on its face, only as applied by Big Tech.

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