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The comedy and tragedy of Trump's new lawsuit against Facebook
On Wednesday morning, former President Donald Trump appeared at his golf club in Bedminster, New Jersey, and announced he was filing class-action lawsuits against Facebook, Twitter, and Google. The lawsuits themselves are a joke, alleging the companies violated Trump's First Amendment rights based on preposterous legal theories. Paragraph 3 of the lawsuit against Facebook, for example, asserts that the social media company should be considered a "state actor."
Defendant Facebook has increasingly engaged in impermissible censorship resulting from threatened legislative action, a misguided reliance upon Section 230 of the Communications Act, 47 U.S.C. § 230, and willful participation in joint activity with federal actors. Defendant Facebook’s status thus rises beyond that of a private company to that of a state actor. As such, Defendant is constrained by the First Amendment right to free speech in the censorship decisions it makes regarding its Users.
Trump's attorneys are forced to make this claim because they are alleging Trump's First Amendment rights are being violated. That argument would only apply if Facebook was the government. But Facebook is not the government. Trump's attorneys make identical claims about Twitter and Google. A judge won't need to read any further to dismiss the lawsuits.
Trump's lawsuit also claims that Section 230 of the Communications Decency Act of 1996, which provides platforms civil immunity for most content moderation decisions, is unconstitutional. The lawsuit claims that Section 230 was "deliberately enacted" to induce Facebook to censor Trump.
Section 230(c)(1) and 230(c)(2) were deliberately enacted by Congress to induce, encourage, and promote social medial companies to accomplish an objective—the censorship of supposedly “objectionable” but constitutionally protected speech on the Internet—that Congress could not constitutionally accomplish itself.
At the time Section 230 was enacted, Facebook did not exist and Mark Zuckerberg was 12.
While the text will not have much legal consequence, it is a reflection of the mindset and priorities of a person who continues to have tens of millions of devoted followers. A large section of the lawsuit against Facebook is devoted to complaining about Facebook's efforts to promote accurate information about vaccine safety and efficacy:
94. Facebook’s “COVID and Vaccine Policy” states Facebook does “not allow false claims about the vaccines or vaccination programs which public health experts have advised us could lead to COVID-19 vaccine rejection” and other “false claims” that “could lead to negative outcomes.”
95. The Policy clarifies that what Facebook means by “false” is not actual or factual falsity, but rather whether the claim contradicts or challenges the pronouncements or recommendations propounded by public health authorities, including the CDC.
99. When Facebook states or implies that Users who espouse a different narrative regarding the safety and efficacy of the vaccination are spreading “false” information, it is an act of bad faith. It is necessary in society for people to have a robust exchange of ideas, yet Zuckerberg and Facebook have worked closely with government actors to silence any opposing views.
The Trump administration's effort to deliver an effective vaccine to the American people as quickly as possible, known as Operation Warp Speed, should be the signature achievement of Trump's presidency. Instead, once Trump left office, he has done little to encourage his supporters to get vaccinated.
Now, Trump is publicly demanding that Facebook allow his supporters to spread false information about vaccines on the platform. Tragically, millions of Trump supporters have gotten the message and refuse to get vaccinated. As a result, many people will die unnecessarily.
Trump undermines his own success
When the Trump administration prioritized vaccine development, it worked. By December 2020, effective vaccines were identified and quickly approved for use. Trump touted the achievement in a December 8 press conference:
We’re here to discuss a monumental national achievement. From the instant the coronavirus invaded our shores, we raced into action to develop a safe and effective vaccine at breakneck speed...In order to achieve this goal, we harnessed the full power of government, the genius of American scientists, and the might of American industry to save millions and millions of lives all over the world.
...Every American who wants the vaccine will be able to get the vaccine. And we think by spring we’re going to be in a position that nobody would have believed possible just a few months ago. (Applause.) Yeah. Amazing. Really amazing.
In a December 22 appearance on Fox News, Dr. Anthony Fauci said "Operation Warp Speed will go down historically as a highly successful endeavor, which allowed us to do things with regard to the timing of it and the effectiveness of it in a way that a few years ago people never would have imagined."
But as it sunk in that Biden would be taking his place in the Oval Office, Trump appears to have lost interest in encouraging the use of vaccines. Both he and Melania Trump were vaccinated while still at the White House in January but they didn't tell anyone about it. He didn't even acknowledge being vaccinated until late-February. Fauci called the decision to get vaccinated in secret "a lost opportunity because he could have gotten a lot of people who are hesitant about getting vaccinated, vaccinated."
During a March appearance on Fox News, Trump said that he would "recommend" the vaccine to "a lot of people that don’t want to get it" because "it is something that works." But, Trump equivocated, adding, "we have our freedoms, and we have to live by that. And I agree with that also."
In April, Trump said that he was asked to film a PSA to promote vaccinations. Some of Trump's advisers reportedly encouraged him to do so. But he has not appeared in such an ad to date.
Today, vaccines are widely available in the United States and about two-thirds of adults have received at least one shot. But more contagious variants mean that unvaccinated people are still at risk and cases are beginning to rise again in many places. Trump supporters are among the least likely to be vaccinated.
The politics of vaccine hesitancy
A new Washington Post poll, released over the weekend "showed 93 percent of Democrats say they’ve either received a vaccine or plan to, while just 49 percent of Republicans say the same." When you drill down into the data, the pattern grows even starker. "States that voted for Donald Trump in 2020 have almost uniformly seen lower densities of vaccinations than states that voted for Biden," the Washington Post reported. Biden's margin of victory in a state is strongly correlated with the rate of vaccination.
A separate poll, released on June 29 by YouGov, found that Trump is highly influential among those who reject the COVID vaccine. Among those who reject the vaccine, 53% trust medical advice from Trump, compared to 9% who trust Fauci and 14% who trust the CDC.
In other words, Trump still has a chance to build on the success of Operation Warp Speed, effectively end the pandemic in the United States, and save many lives. He can reach people that don't trust Biden, Fauci, or the CDC. But his new lawsuits suggest Trump has other priorities.