Time and time again, we have said–and courts have ruled–that social media platforms have the First Amendment right to ban users. We have argued that banned users cannot successfully sue platforms for acting as government censors without showing that the platforms willfully and fully ceded their editorial discretion to the government. But nevertheless, the lawsuits keep getting filed.
This time, former President Trump is the lead plaintiff in yet another “must carry” lawsuit, this one against Twitter. And we have again filed an amicus brief that explains how editorial freedom online benefits users by encouraging diverse forums for speech. (Twitter has also argued that the case is moot since it restored Trump’s account.)
Trump and the other plaintiffs claimed that Biden administration officials’ threats to amend Section 230 unless Twitter deplatformed Trump (not coincidentally, Section 230 provides immunity to platforms from these very lawsuits) transformed Twitter into a “state actor.” Government coercion and involvement in private companies’ content moderation practices raise serious concerns. But in most situations, those concerns are best directed at the government itself.
Even if officials urged Twitter to act against certain users, Twitter cannot be liable unless it abandoned its editorial principles and adopted the government’s decisions in their place. Only under these well-defined and limited circumstances should a court find that Twitter is a “state actor,” we told the court. The facts alleged in this case do not support that finding.
In many cases, the government is free to talk to Twitter, and Twitter is free to listen or not listen. As our brief argues, treating Twitter as a state actor and subjecting it to lawsuits would actually violate Twitter’s own First Amendment right to be free from governmental, including judicial, interference.