(p. A17) The media has panned Donald Trump’s First Amendment lawsuits against Facebook, Twitter and YouTube: “sure to fail,” “as stupid as you’d think,” “ridiculous.”
. . .
But the central claim in Mr. Trump’s class-action lawsuit—that the defendants should be treated as state actors and are bound by the First Amendment when they engage in selective political censorship—has precedent to back it up. Their censorship constitutes state action because the government granted them immunity from legal liability, threatened to punish them if they allow disfavored speech, and colluded with them in choosing targets for censorship.
. . .
A growing body of evidence suggests that social media companies have voluntarily worked with Democratic officials to censor content the latter disfavor. In Brentwood Academy v. Tennessee Secondary School Athletic Association (2001), the high court held that state action exists if the private party’s conduct results from “significant encouragement, either overt or covert,” or if the private party is a “willful participant in joint activity with the State or its agents.”
According to allegations in other pending lawsuits, Twitter formed “trusted partner” relationships with state officials to remove content identified by the officials as election misinformation—when in reality the content was simply critical of state policies.
In September 2020 Mr. Zuckerberg acknowledged that Facebook “works with” the Centers for Disease Control and Prevention to remove Covid-related content. The company’s official policy states that it is “advised” by public-health authorities about what Covid content should be blocked. For months, while officials including Anthony Fauci proclaimed that the Wuhan lab-leak theory was “debunked” and a “conspiracy theory,” Facebook blocked any mention of that theory as “misinformation.”
But after Dr. Fauci and the administration retreated from this position, Facebook almost immediately lifted its ban. Recently published email exchanges between Mr. Zuckerberg and Dr. Fauci reveal no evidence of direct instruction from the government on this point but make a case for Facebook’s willful participation in a joint activity with the government.
For the full commentary, see:
(Note: ellipses added; italics in original.)
(Note: the online version of the commentary has the date July 11, 2021, and has the same title as the print version.)