Trump’s Big Tech lawsuit: Freedom of speech vs. the First Amendment

Donald Trump’s lawsuit against major social media companies pits freedom of speech squarely against the First Amendment. There can be no doubt that these social media giants are denying the former president his freedom of speech, while also denying his viewers and listeners the opportunity to hear and read what he has to say. But these media companies are claiming that the First Amendment protects their right to deny free speech to those with whom they disagree. Specifically, they assert a First Amendment right to censor Trump and others. 

The danger of this “new censorship” — not by government but by private companies that effectively control the marketplace of ideas — is precisely that it may well be protected by the very amendment designed to keep the marketplace of ideas open to diverse views. Hence the paradox — and the uphill battle that Trump may face in persuading the courts that his non-constitutional free speech right to communicate with his millions of followers should trump the constitutional right of social media companies to censor.

In general, the courts have sided with the private companies and have defended their right to censor speech with which they disagree. For example, in 1974, the Supreme Court unanimously held as unconstitutional a Florida statute requiring newspapers to give candidates the right to respond to negative editorials about them. It ruled that the First Amendment prohibits government from requiring the media to publish anything they choose not to publish.  

Under this view of the First Amendment, the government is precluded from interfering with media decisions, even if those decisions curtail the free speech of others. The decision of the Miami Herald to refuse to publish a response to its editorial effectively curtailed the free speech of the candidate and those who were denied the opportunity to read what he had to say in the pages of that newspaper. But the decision of the Supreme Court to not interfere with that editorial decision enhanced the right of the Herald to publish only what it chose to have its readers exposed to on its pages. 

Some — including me — would argue that the Herald was wrong in how to exercise its First Amendment right by refusing to publish the response. But a constitutional right, like that which is contained in the First Amendment, necessarily includes the right to be wrong.  

The Miami Herald precedent and those that followed it came long before a small number of social media behemoths assumed so much control over the marketplace of ideas. At least one justice — Clarence Thomas— has indicated a willingness to consider whether these media giants should be treated as common carriers that are subject to some governmental regulations. But media companies are different than buses. The product they sell is public speech and press, which are expressly protected from government regulation by the First Amendment. 

The conflict between free speech and the First Amendment arises when these private companies use the First Amendment as both a shield and a sword selectively to censor free speech. The conflict becomes most acute when a small number of private companies are powerful enough to essentially shut down the marketplace of ideas — which the First Amendment was designed to keep open — to certain views.

The argument for allowing some regulation of these companies is strengthened by the fact that they already are subject to regulations that benefit them, namely Section 230 of the Communications Decency Act of 1996 that exempts them from certain liabilities to which other media are subject. They welcome this positive governmental regulation while understandably opposing negative regulation. But being exempted from some government regulation does not, by itself, turn a private institution into a state actor. Major League Baseball has been granted a legislative exemption from antitrust laws, yet it continues to be treated as private for other purposes. 

Congress can, of course, ameliorate the problem it caused when it granted tech platforms such broad, unconstitutional exemption from defamation and other liabilities. It could and should limit the exemptions only to media platforms that do not censor lawful speech that they deem offensive. But the Big Tech companies are lobbying hard against any such limitation, and it’s unlikely to be enacted. 

The powerful combination of monopoly (or, in this case, “du-“ or “tres-opoly”) power, combined with its special exemption, have led many Americans to want to do something to change what they regard as an untenable status quo, which they see as incompatible with the spirit  if not the letter of the First Amendment. Hence, this lawsuit.  

The hard question is whether the proposed remedy — giving the government power over private media companies — is more dangerous than the disease of too much censorship power in the hands of too few unaccountable media oligarchs. The Supreme Court may have to address that important question if the Trump case reaches it, as well it may.

Alan Dershowitz, professor emeritus for Harvard Law School, served on the legal team representing President Trump for the first Senate impeachment trial. Dershowitz is the author of numerous books, including “The Case Against the New Censorship,” and his podcast, “The Dershow,” is available on Spotify and YouTube. Follow him on Twitter @AlanDersh.