When you use Google—a target of Trump’s lawsuits—to search for information about his recently-filed social media lawsuits, you find headlines declaring “As Stupid as You’d Think” and “Trump Files Sweeping, Nonsensical Lawsuits.” Even if true, the clear bias is not helpful for a reader who would like to think for herself.

Admittedly, the arguments are not slam dunks, but that’s precisely the point the suits are making: social media companies have been shielded so tightly that the shield itself raises constitutional questions. Six short months ago, a Columbia Law School professor put forth the same argument, met with far less fanfare. The conversation is worth revisiting.

Trump’s lawsuits make one primary claim: Twitter, Facebook, and YouTube are acting as, essentially, government agents, and so they are subject to the First Amendment. The First Amendment does not allow the government to regulate private viewpoints and heavily limits the government’s ability to impose its message onto yours. When you use Twitter, elements of Trump’s allegation feel valid. For example, any post one writes about a vaccine generates an unnecessary link to the CDC website, basically changing the message. Any post about the lab-leak theory was blocked until the Biden Administration finally said it was plausible. And outside of the user experience, the federal influence and control are hard to miss. The big social media companies are constantly before Congress, being told to take this action or that, or else face repercussions. Trump’s lawsuit provides details on each of these connections. 

The federal government’s “control” over social media companies stems from a law, Section 230 of the Communications Decency Act. Section 230 shields internet platforms from liability when they host problematic content (like obscenity) and, more controversially, when they take down a wide range of “objectionable” content. The protection is so strong that Congress has, in theory, unconstitutionally blessed large-scale censorship. Not only have they blessed censorship, but they’ve blessed it on platforms that basically act as common carriers. Since a common carrier is a business that operates as a service to the public, the law usually operates to require that common carriers serve the public in a nondiscriminatory fashion.

The government cannot bless censorship that it could not itself engage in; as the Columbia Law professor noted, “Some Southern sheriffs, long ago, used to assure Klansmen that they would face no repercussions for suppressing the speech of civil-rights marchers. Under the Constitution, government cannot immunize powerful private parties in the hope that they will voluntarily carry out unconstitutional policy.”

Even if Trump’s lawsuits are not winners, the earlier article set forth a potential solution to solve what can feel like free reign by Big Tech. Courts could minimize the legal protections afforded social media companies by reading Section 230 narrowly. Big Section 230 advocates argue the internet’s existence is owed to protecting them from every lawsuit—for discrimination, hosting child pornography, or hosting terrorism propaganda, for example. That was never actually true—and is especially not true today. Internet companies, especially large platforms like Twitter and Facebook, are extremely sophisticated. If they can survive Europe’s onerous data privacy laws, they can survive a closer look at their censorship practices, and can be slapped down when they take action inconsistent with, for example, their terms of service.

Yesterday’s lawsuits have a long road ahead of them, but that’s precisely the issue. And hey, common threats of yesterday—lead in paint, asbestos in insulation—are today dwindling facts, propelled by major lawsuits. We can hope that censorship and viewpoint discrimination suffer the same fate.