The former president is obscuring the very real legal problems he has with imaginary ones he wants.
Just like you, Donald Trump has some big summer plans, though his are probably more grandiose: He’s going to be reinstated to the presidency by August, and he’s going to sue Facebook, Twitter, Google’s YouTube, and their respective CEOs for violating his First Amendment rights. The first of these is impossible. The second, which Trump announced during a press conference this morning, is only marginally more likely to succeed.
These two expectations share something in common beyond improbability: Both are examples of the former president trying to warp reality to better fit his desires. In the real world, Trump lost the 2020 election; in his fantasy world, he was cheated out of a victory but will still manage a return. In the real world, Trump and his company face troubling legal challenges; in his fantasy world, Trump is trying to overshadow those cases with one he’d rather be fighting.
“I stand before you this morning to announce a very important and very beautiful, I think, development for our freedom and our freedom of speech and that goes to all Americans,” he said at his club in Bedminster, New Jersey. “We’re demanding an end to the shadow-banning, a stop to the silencing, blacklisting, canceling, and shaming you know so well.”
Trump’s legal case, which demands the restoration of his social-media accounts and punitive damages, has very little chance of prevailing in court. The defendants are private companies not bound by the First Amendment. Trump’s legal argument hinges on the claim that Section 230 of the Communications Decency Act, a law passed by Congress in 1996, effectively makes the tech companies government actors. One could try to explain this argument in more detail, but it wouldn’t make any more sense.
The question is not whether Trump was banned by Facebook and Twitter but whether he has any legal recourse. Conservatives have long complained that the platforms are throttling their posts, but they haven’t produced any significant evidence to back that up. A useful Twitter feed created by Kevin Roose of The New York Times shows just how much conservatives dominate Facebook’s most popular posts on a daily basis. Trump is not banned from Twitter and Facebook because he is conservative (to the extent that he has any ideological commitments beyond himself), but because he used those platforms to foment violence and spread disinformation—a habit that eventually became too embarrassing and politically hazardous for the sites to bear.
Portraying himself as a defender of free speech is particularly rich for Trump, because he has long been an unabashed opponent of First Amendment protections for others. As a private citizen, he often sued reporters for statements they made about him; as a candidate, he called for changing libel laws to make defamation claims easier. As president, he sought to use the Justice Department to pursue his critics.
Talking about the merits of this new case, however, is mostly beside the point. Trump said during his press conference that he was not looking to settle and intended to see the cases through in court. Don’t put any money on that. Throughout his career, Trump has often threatened to sue and even filed lawsuits, but the litigation goes nowhere—not necessarily because of any problems with the merits, but because the downsides for Trump outweigh the benefits, as the eminent First Amendment lawyer Floyd Abrams explained to me in 2018, when Trump threatened to sue the author Michael Wolff.
In the discovery phase of the suit against these tech companies, should it go forward, defendants could demand information about Trump’s actions on January 6 and whether he incited the insurrection that day. Trump has prudently avoided disclosing much about what he did that day, and there’s no way he’d speak about the fiasco for a doomed lawsuit. As the legal commentator Harry Litman notes, the case might not even make it that far: It could be thrown out of court before discovery, because private companies cannot violate the First Amendment.
In short, the case is—like so many of Trump’s past frivolous suits and threats of suits—a publicity stunt, but it’s a stunt with an edge of anxiety. The former president has long recognized litigation’s power to change narratives. In his earliest turn in the press, when his family’s company was charged with racial housing discrimination, he countersued the government. Twitter and Facebook banned him back in January, but today’s announcement didn’t come until nearly a week after indictments of the Trump Organization and its chief financial officer were unsealed in court in New York.
Those indictments are something of a disappointment for Trump’s detractors, as they do not target the former president himself. But although they may be, as the president says, politically motivated and unusual, the charges are also extremely convincing, based on claims made by the Manhattan district attorney and the New York attorney general. Last week’s indictments may only be the beginning, too. Enterprising prosecutors can find many other areas to investigate, and Trump’s initial reaction was dour and fatalistic, my colleague David Frum wrote. Elsewhere, Trump faces two major defamation lawsuits and a handful of other cases that vary both in seriousness and likeliness to succeed.
Trump seemed to be having a good time during his press conference today. His rambling remarks included digressions about defunding the police, Anthony Fauci, and the prowess of lawyers for tobacco companies. The fantasy world in which his First Amendment theories are strong is alluring, but it cannot erase or eclipse the real legal issues he faces.
David A. Graham
