As President Trump accuses Twitter of suppressing free speech, a federal court has ruled you can’t actually sue a social media company for violating the First Amendment.
The reason? The First Amendment is designed to stop the government from curtailing free speech, not private companies, according to the DC Circuit Court of Appeals.
The court’s ruling on Wednesday was made in response to a lawsuit from the legal group Freedom Watch and Laura Loomer, a right-wing pundit who has been banned from Twitter and Facebook over anti-Muslim posts she made.
Back in 2018, they filed a complaint, claiming Apple, Facebook, Google and Twitter have been breaking the law by conspiring to suppress conservative viewpoints. A year ago, a federal court dismissed the complaint, and on Wednesday, the DC Circuit Court of Appeals reached the same conclusion, ruling that none of the tech companies named violated the US Constitution.
“In general, the First Amendment ‘prohibits only governmental abridgment of speech,’” the judges wrote in their ruling. “Freedom Watch contends that, because the Platforms provide an important forum for speech, they are engaged in state action. But, under Halleck, ‘a private entity who provides a forum for speech is not transformed by that fact alone into a state actor.’”
The lawsuit also tried to argue that the tech companies are in violation of antitrust laws, citing their control of American social media and their bans on certain right-wing pundits. But the judges remained unconvinced, and pointed to Freedom Watch’s failure to supply proof of a coordinated conspiracy.
The judges also wanted evidence that the tech companies acquired their influence through anticompetitive conduct. However, the ruling notes: “The only anticompetitive conduct that Freedom Watch alleges (without supporting factual allegations) is that the Platforms conspired against it to suppress conservative content, but not that the Platforms conspired to acquire or maintain monopoly power.”
The ruling is a setback for conservative critics who argue tech companies should remain completely neutral on political debates, even though misinformation can be involved. On Wednesday, President Trump himself made a similar claim when blasting Twitter for fact-checking his tweets about mail-in voting causing election fraud.
“Republicans feel that Social Media Platforms totally silence conservatives voices. We will strongly regulate, or close them down, before we can ever allow this to happen,” Trump threatened in a tweet.
However, under the First Amendment, the President has no power to constrain the free speech of a private company, says the American Civil Liberties Union. “The First Amendment also clearly prohibits the President from taking any action to stop Twitter from pointing out his blatant lies about voting by mail,” said ACLU Senior Legislative Counsel Kate Ruane in a statement.
Still, the debate about whether the First Amendment should apply to private companies will likely rage on at a time when internet giants such as Google and Facebook are expanding their influence over the internet. In the meantime, Freedom Watch’s founder Larry Klayman told Politico he plans to press on with his lawsuit, despite the dismissal.
“We’re going to obviously move for en banc reconsideration and go to the Supremes, if we have to,” Klayman reportedly said.