In a move that is garnering some "negative press covfefe," earlier this week Donald Trump filed suit against Twitter, Facebook and YouTube. The suits--filed in the Southern District of Florida--follow Trump's suspension from the platforms after a series of posts that the platforms believe encouraged or supported the violence perpetrated at the January 6 riot at the US Capitol. The suits, all of which are prospective class actions on behalf of those similarly blocked, argue that the platforms were operating as state actors--and thus violating the First Amendment--when they banned users.

Trump will face a rough road, made more difficult by one of his own nominees to the Court. In 2019, Justice Brett Kavanaugh issued an opinion in Manhattan Community Access Corp. v. Halleck, finding that the First Amendment didn’t apply to the operator of public access channels that had suspended producers on the basis of their content. As Kavanaugh found there, opening up a media platform to the public did not transform a private company into a state actor. And, of course, the First Amendment prohibition on censorship only applies to state actors and not to private companies. The twist in this case, as Trump has alleged it, is that the platforms are state actors in part because they acted in coordination with federal officials, including the CDC and President Biden's transition team, including by appearing at hearings. Specifically, Trump claims that the platforms bowed to pressure from Democrats to censor conservative speech after Democrats threatened to strip away the protections afforded to social media networks by Section 230 of the Communications Decency Act.

That brings us to potentially the bigger reach in these lawsuits, which is Trump's claim that Section 230 is unconstitutional. Section 230 provides immunity from liability for providers and users of an "interactive computer service" which--like the social media platforms Trump is suing--publish third-party content. This is not the first time that Trump has taken aim at Section 230. He previously signed an executive order--later rescinded by President Biden--that would have stripped away some of its protections. The new Trump lawsuits allege that Section 230 itself represents a government endorsement of unconstitutional censorship, given that it was allegedly crafted to intentionally censor speech that is otherwise protected by the First Amendment.

A District Judge in San Francisco recently dismissed similar arguments in a case also brought against Facebook, and previous efforts to cast social media platforms as state actors have failed. It remains to be seen if Trump's lawsuits can gain more traction.