Donald Trump v. Twitter is a very silly lawsuit. It boils down to “Twitter says I can’t use its platform and that’s illegal because of the First Amendment.” Wise armchair lawyers are desperate to find a Pyramid comments section so they can wisely point out in a wise way that the First Amendment protects you from the government, not from private companies. But Trump’s lawyers are playing four dimensional Chutes & Ladders here: under 47 U.S.C. ยง 230, they argue, Twitter is actually a government actor, because the government has delegated its responsibility to police content on Twitter to Twitter, and technically the government can’t police content, and so Twitter can’t, neener neener neener.
Trump’s lawyers also filed their lawsuit in Florida, where the ex-president lives. Jurisdiction is confusing, but Twitter says users have to file cases against the company in northern California and Trump’s claim that presidents can’t enter into contracts was rejected, so off to California the suit went.
Since its move to California, the case has changed a little bit, but the core concept remains that Trump wants his Twitter account back. Twitter, for its part, has filed a motion to dismiss because his attorneys have not “plausibly pleaded that Twitter’s editorial decisions constituted state action.”
Trump’s attorneys think they have an ace in their sleeve: a memo that says that “platforms often ramp up their efforts against [conservative] content in response to social and political pressure.” There are a couple problems with this ace, though.
First, the memo was not written by Twitter. It as written by congressional staffers for the House Committee on Energy and Commerce. Trump’s lawyers seem to be presenting it as a kind of gotcha, proof that the House is either directing Twitter to silence conservatives or that Twitter is subject to political pressures, neither of which seems to be relevant but what do I know, I’m not a big dollar lawyer working for the ex-president.
But I do see that some big dollar lawyers work for Twitter, and they’ve spotted a second problem with the deck of cards Trump’s legal team is working with. Did you see those brackets a couple paragraphs ago? Where the word “conservative” is inserted into the sentence? Here’s what the original sentence in the memo says (emphasis added by Pyramid):
In advance of the November 2020 election, Twitter expanded the use of its warning labels to limit the spread of election misinformation. In December 2020, Twitter announced it would label misinformation about COVID-19 vaccines. These platforms often ramp up their efforts against misinformation and extremist content in response to social and political pressure.
Oh, buddy. It turns out that particular memo is background for a hearing on “Social Media’s Role in Promoting Extremism and Disinformation.” Now, some of this is definitely of interest to the former president, whose oft-repeated lie that the election was stolen is the cornerstone of modern right-wing extremism in the United States. It would be hard to claim that even the mainstream of the Republican Party does not believe, or at least does not publicly claim to believe, in anti-democratic and pro-authoritarian ideals.
In their filing, though, Trump’s lawyers made this explicitly clear. They are the ones who connected “misinformation and extremist content” with conservatism. The memo they cite refers almost exclusively to conspiracy theories around COVID-19 and vaccination – which Trump himself has been critical of, given that the quick development of COVID-19 vaccines is one of the few highlights of his administration – with the 2020 presidential election receiving just a two-sentence-nod in the entire five page document. Just one of those two sentences was about Twitter’s own election policies, which was mostly about suppressing election-related content until official or authoritative announcements were made, a policy that Fox Business covered pretty uncritically (the policy allowed Fox News to call elections and, if networks disagreed, it would flag these calls as challenged until they could be settled; Fox News called the election for Joe Biden on November 7, 2020). A reasonable reader of the memo would think it was about the far out stuff, like claims that COVID-19 was caused by aliens or that the vaccine would turn you into an alien from Alien, or perhaps the QAnon belief that Trump would be sworn in as the One True President of Real America on March 4, 2021.
Thus, we ask: are Trump’s attorneys arguing that Twitter considers conservativism to be extremism and misinformation, perhaps falsely? Or are Trump’s attorneys arguing that Twitter’s exclusion of extremism and misinformation is uniquely damaging to conservatives because that’s what modern American conservatism is at its core?
Who can say. It’s a mystery.
