"It's a Tweet with a Filing Fee, Not a Lawsuit"

A funny line from a commenter.

It was said by our commenter ah…Clem about Donald Trump's lawsuits against the social media platforms, but it's generalizable to any lawsuits brought by prolific tweeters (and maybe to other lawsuits, too). [UPDATE: ah…Clem reports that credit should go to Mike Dunford on Twitter, but now that I've searched for it on Twitter, I see an earlier version on Nov. 5, 2020, from @AriannaEditrix.]

As it happens, I think that Trump's lawsuits have a kernel of a plausible legal theory, for reasons I discussed in my "When Government Urges Private Entities to Restrict Others' Speech" post: If the government pressured social media companies to block Trump using sufficiently coercive pressure, then the blocking might involve state action and might thus violate the First Amendment, though I'm skeptical that the allegations in the lawsuit cross that (vaguely defined) boundary. But in any event, I liked the commenter's line.

Comments

[Orbital Mechanic]

It is hard to get over the Trumpism worldview that cases are decided solely on who appointed the judge or what their proclivities are, and the merits of the case are basically played out as a media contest.

[whey_standard]

As with most Trumpisms, it takes something that’s kinda true (on the margins the judicial philosophy of the judge matters, and on novel issues, preference for outcome can motivate a decision between choices of equal logical merit) and applies it to things it’s simply untrue of: that all cases are just about the politics of the judge. It leads to highly predictable results, with many of those that follow Trump going on wild rides of whether a judge is brilliant and independent or a deep state hack.

[whey_standard]

I mean, that lawsuit alleges that the federal government compelled Twitter to take adverse action against the embodiment of federal executive power which … doesn’t make a whole lot of sense. It tries to thread the needle by arguing some members of Congress threatened to remove Section 230 liability protection (oddly most of those calls come from legislators sympathetic to Trump) if they didn’t censor him, but then it also argues Section 230 is itself unconstitutional … so not really clear why it would matter if Congress does remove it.

[IPLawyer]

Is that what Eugene means by “a kernel of a plausible legal theory”?

[ah....Clem]

It’s a kernel of a plausible theory in the same sense that Russell’s teapot is a plausible theory of astronomy.

[ah....Clem]

I wish that I could claim that it was original, but as with so many other things on the internet I stole it from somebody else.

Give the credit to Mike Dunford; he elaborates in this thread:

https://twitter.com/questauthority/status/1412803143130353678?lang=en

[Rev. Arthur L. Kirkland]

” As it happens, I think that Trump’s lawsuits have a kernel of a plausible legal theory ”

Of course. The Heritage-Republican-Federalist-Bradley-National Policy-conservative-Trump-Koch-Chamber world would not have it any other way. A libertarian facade is no match for right-wing imperatives.

[Dr. Ed 2]

American law recognizes the judge-made theory of someone being “an agent of the police” and hence that person having a higher Constitutional duty.

All it’s going to take is a judge to recognize the same thing here.

After all, if a private actor can violate fourth amendment rights because of the actor’s relationship with the state, a private actor can also violate first amendment rights for the same reason — and corporations are persons…..

[Ben of Houston]

Until this week’s statements by Biden, I didn’t think the Trump argument had a snowball’s chance. However, at this point, when Biden is making explicit and public threats against social media companies to silence his political opponents for him, this became substantially more believable.

As I’ve said before, there’s nothing unprecedented or really that unusual about the Biden White House, aside from the complete dropping of pretense and subtlety. Where his predecessors would hint and suggest, Biden is demanding outright.