Discover more from Understandably by Bill Murphy Jr.
Can't win if you don't play. Also, 7 other things worth your time.
I’ve been asked more than I expected to weigh in on the decision of Twitter etc. to cancel President Trump’s accounts.
I wanted to think a few days first, because this is complicated. Also, law school was kind of a while ago, now.
But, O.K. Be sure to stay tuned for the surprise at the end.
Back of the envelope, I see at least three legal issues at the start—plus a “forget what the law technically is, here’s what it should be” issue.
First, I keep hearing that Twitter is violating Trump’s First Amendment rights under the U.S. Constitution. That’s almost certainly wrong, because the First Amendment doesn’t guarantee free speech; it only says that you have the right not to have the government interfere with your speech.
It says nothing at all about private people or companies. You could maybe argue that the interpretations of this are outdated, and that federal freedom of speech should apply to social media.
But that would be a very uphill battle. It’s almost not worth mentioning here.
Second, however, all is not lost. Twitter is based in California, and its user agreement explicitly says California law applies. Well, it turns out that California’s state constitution has a much more robust freedom of speech protection than the federal constitution.
Famously, there’s a line of cases going back to 1980 about whether privately owned California shopping malls can stop people from engaging in political speech on their property.
It’s tricky trying to sum up 40 years of caselaw in one sentence, but what the heck: Basically, no they can’t. In California, more or less, the fact that a public forum is privately owned doesn’t matter; you can hold your rally there.
So, that means there’s likely a good faith argument that a privately owned California company like Twitter can’t stop you from speaking — certainly not because they don’t like the content of your political message.
Can you imagine the irony if California turns out to be Trump’s Twitter savior?
Third, there’s contract law. Go to the Twitter terms of service, and they explicitly say that they’re creating a contract with users. Well, there are a few legal theories about contracts that might work here for Trump.
One that jumps out to me is the doctrine of reliance. Basically, if you reasonably believe you’re entering into a contract with someone, and you change your actions in reliance on that belief but they later renege, you might have a case for damages.
Here, I’d argue Trump reasonably relied on Twitter: posting 56,571 tweets over more than a decade, and amassing 88.7 million followers. He used their service, instead of say, starting his own.
Anyway, that’s all about what the law arguably is. But we should also talk about policy. Overall, it’s really uncomfortable for private companies to have so much power over speech. Go to the questions though—
Should private companies have the right to delete content inciting violence or insurrection? (I think yes.)
But, do you really want them unilaterally reviewing individual pieces of content to make the call on their own? (Oh wait, maybe not.)
And what does due process look like if you object? (Man, I have no idea, except just to sue in federal court.)
Anyway, I was talking this through yesterday. At one point, I said, Well, if I were Trump’s lawyer, I’d sue immediately in the U.S. District Court in San Francisco, and ask for an emergency order temporarily restoring Trump’s accounts while the case is pending.
I think you might well get some version of that temporary order pretty fast, especially since Trump is a sitting head of state and —
Wait a minute. I suddenly had a realization, and here’s the surprise. Where are the lawsuits?
Why the heck does it fall to me, a middle-class, non-practicing lawyer / newsletter writer in New Jersey to identify the legal straws at which Trump might grasp?
Where the heck are his lawyers? Why haven’t they filed suit? (I searched the federal courts’ PACER system, and also just asked around on Twitter. Nobody has any info that I can find about Trump suing.)
I don’t honestly know if he’d win. And sure, there’s a lot going on; heck he’s about to be impeached for the second time. Still, if you were silenced like this, wouldn’t you run to court?
There was an old lottery slogan: “You can’t win if you don’t play.” I think the same thing applies here.
There’s at least an issue worth fighting in court here, and even if you totally dislike Trump, it would be good to get it settled.
But it doesn’t really matter what I think, because I don’t have standing to sue. The person who does have standing once set a record by tweeting 200 times in one day. And yet, he hasn’t done a thing.
7 other things worth your time
Parler sued Amazon after AWS deplatformed it, “alleging an antitrust violation, breach of contract and interference with the company's business relationships with users.” See? This is what you do. Plus those are some other good theories I should have thought of for Trump. (CNN)
Democrats say the House will vote on a resolution calling on Vice President Pence to remove Trump under the 25th Amendment, and they’ll bring an article of impeachment for inciting insurrection against Trump to the floor tomorrow. (NBC News)
Several Capitol police officers are being investigated for “involvement or inappropriate support” of the rioters who attacked the Capitol last week. (The Washington Post)
In a move reportedly designed to make it harder for President-elect Biden to normalize relations with Cuba, the administration named the country a state sponsor of terror on Monday. (NPR)
The FBI is warning of armed protests and more violence at the state capitols in all 50 states and Washington, associated with the inauguration. (BBC)
Bill Belichick, coach of the New England Patriots, declined the White House’s offer of the Medal of Freedom, citing “the tragic events of last week.” (ESPN)
Alabama beat Ohio State, 52-24, to take its third national championship in the College Football Playoff era. (Fox News)
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