Donald Trump Tells The Supreme Court That Social Media Is A Common Carrier; Never Mentions His Own Social Media Site
Last month, Florida officially asked the Supreme Court to review the detailed 11th Circuit ruling which mostly upheld the district court ruling saying that Florida's social media content moderation law was unconstitutional under the 1st Amendment. Earlier this week, NetChoice and CCIA argued that the 11th Circuit was (mostly) correct in trashing the law, but asking the Supreme Court to hear the case anyway to establish that these kinds of laws are clearly unconstitutional.
Although the Eleventh Circuit correctlycondemned S.B. 7072's core provisions, respondentsnonetheless agree with Florida that this Court shouldgrant review. The issues at stake are profoundlyimportant, as this Court already recognized invacating a stay of a preliminary injunction withrespect to a similar Texas law. And the Fifth Circuitrecently upheld that Texas law (over a vigorousdissent), thus creating a square and acknowledgedcircuit split. Other states, moreover, are waiting inthe wings, ready to enact comparable laws that wouldfundamentally reshape social media websites by fiat ifthis Court does not step in now. The best way to putan end to this grave threat to First Amendment valuesis to grant both this petition and respondents' crosspetition to consider the constitutionality of S.B. 7072in its entirety and to bring a swift nationwideresolution to this debate.
Over the last few days, there have been a small flurry of filings from amici, and there will be more coming as well. Not all of the amicus filings are all that interesting, though a few are eye-opening. A bunch of Republican-led states are (unsurprisingly) eagerly arguing that the Supreme Court needs to give them the power to force any website to host Nazi and terrorist speech in the name of the free exchange of ideas" which apparently no longer recognizes the private property owner's right not to host messages they disagree with. That this position is exactly opposite of the one many of these same officials have taken when it comes to putting messages on cakes apparently does not much matter.
Speaking of totally hypocritical arguments, it caught my eye that one of the amicus briefs comes from Donald Trump himself. Now, given that he's the owner of his very own social media website, Truth Social, which regularly engages in totally arbitrary viewpoint discrimination, I wondered if perhaps he might actually argue that websites need to have the freedom to moderate as they see fit.
Except... that's not at all what he does. Perhaps incredibly, the amicus brief does not even mention that Trump owns his own social media platform. The statement of interest only talks about how he currently has lawsuits against Twitter, Meta, and YouTube for banning him. Those lawsuits aren't going too well, and Trump seems to think that a law like Florida's might fix that. That he owns his own competing platform apparently doesn't even merit a single mention.
Amicus Donald J. Trump, 45th President of theUnited States, is the lead plaintiff in class action lawsuits filed against Twitter, Inc., Meta Platforms, Inc.,and YouTube, LLC. Among the causes of action alleged in these cases are violations of the censorshipdisclosure requirements of Fla. Stat. 501.2041(2)(a)(Section (2)(a)" or (2)(a)") and the consistent-application requirements of Fla. Stat. 501.2041(2)(b) (Section (2)(b)" or (2)(b)"). Sections (2)(a) and (2)(b) wereenacted by the Florida Legislature as part of SenateBill 7072 (S.B. 7072"). The decision of the EleventhCircuit in NetChoice, LLC v. AG, Florida, 34 F.4th 1196(11th Cir. 2022) (NetChoice") directly affects both Sections (2)(a) and (2)(b). NetChoice reviewed a districtcourt's order enjoining governmental enforcement ofS.B. 7072. The Eleventh Circuit vacated the districtcourt's injunction as to Section (2)(a)'s disclosure requirements but affirmed the injunction as to Section(2)(b)'s consistency requirement. Amicus Trump has adirect interest in upholding these statutes and submitsthis brief to apprise the Court that Sections (2)(a)and (2)(b) are supported by long-standing common-lawprinciples prohibiting unfair discrimination by common carriers.
The crux of Trump's argument: these sites are all common carriers and cannot discriminate against him for inciting a violent insurrection attempt. There's so much in this filing that seems likely to come back to bite Trump and Truth Social in cases that might eventually get filed against himself. For example, he insists that social media sites are all dumb pipes." Someone might want to tell Devin Nunes that according to his boss, he's not supposed to keep banning people who make fun of Donald Trump.
The conflict between NetChoice and Paxton hingeson their different approaches to the primary functionof social media platforms. In NetChoice, the EleventhCircuit erroneously concluded that social-media platforms aren't dumb pipes': They're not just servers andhard drives storing information or hosting blogs thatanyone can access . . . when a user visits Facebook orTwitter, for instance, she sees a curated and editedcompilation of content." NetChoice, 34 F.4th at 1204.Conversely, Paxton correctly recognized that Platformsare in many ways just that, dumb pipes," because theypermit any user who agrees to their boilerplate termsof service to communicate on any topic, at any time,and for any reason." Paxton, 49 F.4th at 461.
Then there's a long and confused section regarding Section 230 arguing that it is a special privilege" given by the federal government. The brief argues that the immunity given by 230 is unique in that newspapers and television stations get no such protection." Hilariously, though, to prove this, Trump uses two failed defamation lawsuits against news organizations:
By enacting Section230, Congress wanted to promote the continued development of the Internet." 47 U.S.C. 230(b)(1). Thisimmunity is unique to the publishing industry; newspapers and television stations get no such protectionand are plagued by costly and burdensome lawsuits.See, e.g., Palin v. N.Y. Times Co., 2022 WL 599271(S.D.N.Y. 2022) (defamation lawsuit by Sarah Palinagainst the New York Times); Sandmann v. WP Company, LLC, 401 F. Supp. 3d 781 (E.D. Ky. 2019) (defamation lawsuit brought by Covington Catholic HighSchool student Nicholas Sandmann against the Washington Post).
Those seem like... very odd choices as examples. After all, Palin's lawsuit against the NY Times failed, as did Sandmann's lawsuits against a variety of media orgs, though it is true that before the judge tossed out the nearly identical lawsuits against the NY Times, CBS, ABC, Gannett, and Rolling Stone, the Washington Post did settle. But these are actually good examples of why Section 230 is really just about making sure that you have a credible lawsuit against the correct party, and therefore the only real benefit to them is getting rid of frivolous lawsuits faster. That's hardly a special privilege." Also, this argument by Trump and the examples he chooses fail to recognize that the difference between the Palin and Sandmann cases and Section 230 cases is about who is doing the speaking. In the cases he references, the speaking was done by people employed by the media companies. The whole point of 230 is that we don't hold third party speakers liable for what they post on... sites like Truth Social.
From there, Trump's brief goes on a long rambling rant about common carriers - an issue that really isn't directly relevant, given that neither the 5th or 11th Circuits agreed on common carrier language (in the 5th Circuit, Judge Andy Oldham did argue in favor of it, but that section was signed only by himself; he couldn't even get a second judge on the panel to agree with him about common carriers).
Still, Trump leans hard on the idea that social media is obviously a common carrier. The argument is somewhat muddled (perhaps unsurprisingly). It appears to argue (1) that Section 230 is a special privilege, and (2) that special privilege makes it a common carrier, and, therefore, (3) the state can require it to act in certain ways in terms of barring it from blocking certain speech. It leans heavily on weird precedents from centuries ago that definitely do not apply:
In the late 1800s, courts held that specialprivileges such as the grant of eminent domain powersand gifts of public land converted railroads from purelyprivate concerns to common carriers. These specialprivileges were first bestowed in the early 1860s, andby easing access to land they played an essential rolein the completion of the transcontinental railroad in1869. By comparison to one-time gifts and eminentdomain powers, the immunities of Section 230 are farmore valuable. While it would have taken time, the private sector could have provided the funds needed forthe construction of the railroads; contrariwise, onlyCongress could bestow immunity for defamation andother torts. Furthermore, rather than a one-time gift,Section 230 is, in effect, an annuity
Except... this is confused and wrong. Section 230 does not grant them immunity for defamation and other torts." It simply says that they cannot be held liable for the defamation (or other torts) of their users. That's kind of an important distinction that seems to fly way over the heads of Trump's lawyers.
Hilariously, his lawyers (perhaps recognizing how absurd it is to make social media websites common carriers") insist that even if they're common law common carriers, that does not make them subject to all of the regulatory burdens of the Telecommunications Act." Basically we think we can declare things common carriers, but we still don't believe in net neutrality."
From there, Trump's lawyers just make up a bunch of nonsense falsely claiming that Section 230 only allows for moderation based on good faith." This is wrong, as we've explained. Yes, part of Section 230 notes good faith efforts to restrict access to material, but that's only in (c)(2) of Section 230 and not (c)(1) which is what is most commonly used in court to defend moderation decisions. On top of that, multiple courts have made it clear that sites have a 1st Amendment right of editorial discretion to moderate how they see fit, unrelated to Section 230.
These are all things that Trump - who again I will remind you, owns his own social media website which very much benefits from the procedural benefits of Section 230 - should be supporting for his own good. But... instead, we get this nonsense:
Thus, Congress has limited a Platform's immunity to good faith"efforts, and courts have applied this good faith" standard to support claims alleging anti-competitive behavior.... Moreover, the list of factors that a Platform is free to consider in censoringcontent is limited by the statutory language. Inclusionof the catch-all category otherwise objectionable" doesnot mean it can censor content based on anything itclaims to consider objectionable." Construing the termbroadly enough to include any or all information orcontent," would render the statutory list meaninglessand superfluous
That's hilarious, given how randomly and arbitrarily Truth Social bans people.
Believe it or not, it gets funnier:
Nor does Section 230 protect discrimination basedon any other basis unrelated to content-such as pointof view, political influence, skin color, marital status, orfriendship with the Platforms' operators
Remember, Truth Social originally had terms of service that flat out said that annoying Truth Social employees would get you banned? While those terms have since been updated, the company does have a habit of banning people who mock Donald Trump.
Perhaps even more hilariously, Trump then argues that even if a website is a common carrier, it still gets to set whatever rules it wants, and can kick people off for violating them. I'm not joking:
NetChoice's error is illustrated through a recentexample involving Delta Air Lines' carriage policy forbig-game trophies. Conservation Force v. Delta AirLines, Inc., 190 F. Supp. 3d 606 (N.D. Tex. 2016), aff 'd,682 Fed. Appx. 310 (5th Cir. 2017) (mem.). A passengerclaimed that Delta unfairly discriminated against himby refusing to transport his big-game trophy, but theDistrict Court rejected the argument, noting that common carriers were free to set their carriage policiesprovided they applied them equally to anyone usingthe service. Id. at 610 (quoting York Co., 70 U.S. at 112).Applying federal common-law principles, the Conservation Force court properly drew the distinction between common-carrier status (which Delta clearly had,by virtue of its all comers" policy) and the terms of service by which Delta operated its airline (which had tobe fair and uniform). The terms passed muster becauseDelta applied its trophy policy uniformly to all users.
Basically, with absolutely no self-awareness whatsoever, he's arguing that even if a site is a common carrier, as long as it sets rules, it can still ban people. Which... um... would bring us right back around to where we were (more elegantly and more usefully) with Section 230 as currently interpreted.
Reading between the lines, Trump seems to be arguing (hilariously) that he was kicked off of social media because websites were biased against him in an unfair" and arbitrary" manner. At this point, I will once again remind you that a recent study found that Truth Social's content moderation (and, again, Truth Social is never mentioned once in this entire brief) was recently found to have the most arbitrary content moderation of any platform.
Anyway, of course, none of this really matters. Justices Thomas and Alito have already made it clear that they buy this argument, and this amicus brief is playing to them. I do really wonder, though, if these statements will ever show up in cases against Truth Social for its moderation.