Former President Donald Trump on Wednesday filed class-action lawsuits against Facebook, Twitter and YouTube arguing his suspension from those platforms violates the First Amendment.
However, legal experts say that argument has little chance of succeeding in court since the First Amendment constrains only the government, and not private entities.
The First Amendment specifically says "Congress shall make no law ... abridging the freedom of speech, or of the press," and the Supreme Court has extended that protection against all government agencies and officials — executive, legislative and judicial, as well as federal, state and local, per the National Constitution Center.
This protection does not include private individuals or organizations, such as Facebook, Twitter and Google, which owns YouTube. But Trump is arguing that certain private businesses have become "state actors" and therefore are required to abide by the First Amendment. Trump claims:
Defendant Facebook has increasingly engaged in impermissible censorship resulting from threatened legislative action, a misguided reliance upon Section 230 of the Communications Decency Act ... 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, and as such, Defendant is constrained by the First Amendment right to free speech in the censorship decisions it makes regarding its Users.
But the Supreme Court, in an opinion authored by Trump-appointed Justice Brett Kavanaugh, declared in 2019 that media platforms are not state actors.
Trump and his supporters have long lambasted social media companies for so-called "cancel culture" and their disparate treatment of conservative voices. The former president's removal from Facebook, Twitter and YouTube for inciting the Jan. 6 insurrection at the Capitol fueled this outcry.
"We're demanding an end to the shadowbanning, a stop to the silencing, and a stop to the blacklisting, banishing and canceling that you know so well," Trump said at a press conference Wednesday.
In addition to arguing a First Amendment violation, Trump's lawsuits are also seeking a ruling that declares unconstitutional the so-called Section 230, a decades-old federal law that protects online platforms from lawsuits regarding content moderation decisions.
Evan Greer, director of Fight For the Future, whose organization advocates for Internet freedom and privacy, said that from a legal perspective this lawsuit is likely to go nowhere.
"While it's silly to pretend that the moderation decisions of Big Tech don't have a significant impact on free expression, the First Amendment enables private platforms to make exactly the kind of moderation decisions they wish to make as non-government entities," she said.
Greer and other critics of the lawsuits also pointed out the legal action was likely a fundraising tactic for Trump, who is considering another presidential run in 2024.
Shortly after announcing the lawsuits, Trump's joint fundraising committee sent a text saying, "Pres Trump: I am SUING Facebook & Twitter for UNCONSTITUTIONAL CENSORSHIP. For a short time, 5x-IMPACT on all gifts! Donate NOW."
At the press conference, Trump also encouraged his supporters to go to a website where they could join the class-action lawsuits. However, that site redirects users to one for the America First Policy Institution that only includes a promotional video and links to donate.
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Kosar is a resident scholar at the American Enterprise Institute, a conservative think tank, and co-editor of the recently published "Congress Overwhelmed: Congressional Capacity and Prospects for Reform" (University of Chicago Press).
Unless you were hiding under a rock you heard that Rep. Liz Cheney of Wyoming was pushed out of her Republican leadership position in the U.S. House of Representatives.
In both instances, the cause of the schisms is the party's continued embrace of Donald Trump, and its refusal to hold the former president accountable for sowing distrust in the 2020 election results and stoking protests that culminated in the Jan. 6 invasion of the Capitol.
In a speech on the floor of the House, Cheney said Trump's refusal to accept the results of the election threatened the stability of the republic. "Today we face a threat America has never seen before; a former president who provoked a violent attack on this Capitol in an effort to steal the election, has resumed his aggressive effort to convince Americans that the election was stolen from him." She cited the various instances of newer democracies around the world backsliding into authoritarianism.
The gentlelady from Wyoming subsequently told the press she believed the nation needs a GOP that is "based upon fundamental principles of conservatism" and that she would "do everything I can to ensure the former president never gets anywhere near the White House."
The group of GOP dissenters struck a similar note in their declaration. "When in our democratic republic, forces of conspiracy, division, and despotism arise, it is the patriotic duty of citizens to act collectively in defense of liberty and justice."
That Trump has brought the GOP to this difficult place is no surprise. He never has been a committed member of the Republican Party. His partisan registration has flipped frequently, and he long was a large donor to Democrats. To him, party registration appears to be no more than a means to end: acquiring office.
Additionally, the GOP schism we see erupting is a regular feature of the two-party system. As scholar James Sundquist long ago explained, America's political parties regularly undergo realignments due to various factors, such as demographic shifts, the rise of new issues and the emergence of new candidates. Consider the Democratic Party's shift over the past 25 years. Bill Clinton helped turn a pro-union party into a "third way" coalition that worked with Wall Street. Sen. Bernie Sanders of Vermont and Rep. Alexandria Ocasio-Cortez reversed that development and have inserted the far left "social" in the Democrats governance agenda.
Current Republican leadership has viewed the present situation as a choice: Win back control of Congress and the presidency by keeping the petulant Trump in the GOP tent by humoring his claims, or do the right thing and cast him out. Many observers have been calling for the party to take the latter course. Some have argued for the party to purge itself of all the rabid Trump supporters. Historian Matthew Dallek observed that the respectable right distanced itself from the John Birch Society and other extremists in the 1960s.
Yet, America's two-party system strongly incentivizes trying to keep politicos and their voters in the fold. Sen. Lindsey Graham of South Carolina, who a few months ago said he was done with Trump, recently put the GOP situation succinctly: "If you look at a political analysis, there's no way this party is going to stay together without President Trump and his supporters. There is no construct where the party can be successful without him."
Moreover, there is a brute sociological fact: Issues that resonate with a slice of the electorate, even if they offend the majority, tend to get picked up by one party or the other. In the 1990s, the GOP sidelined Patrick Buchanan and his America First platform, which featured criticism of excessive immigration, minorities and free trade. Trump campaigned on these very same themes, which neither party wanted to champion.
This is why, as Sundquist observed, "[s]ince the founding of the Republic, except for a few brief intervals, the American political system has been based on competition between two major parties." (Which is to say nothing of the various policies that entrench the two-party system.)
Hence, Cheney and the 100 GOP dissenters have set themselves a short-term and a long-term challenge. First, they need to sufficiently imperil the GOP's electoral calculations that they can extract from party leadership a promise: Under no circumstance can Trump be the nominee. They might achieve this by continuing to talk about Jan. 6, wooing GOP campaign donors to withhold their dollars and convincing voters to deregister from the party. In short, be a spoiler.
The long-term challenge is far more vexing: What to do about those voters who are attracted by Trump and Trumpy candidates? There are no easy answers here — not in a two-party system.
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Public figures live on within the words they are remembered by. To understand the effect they had on history, their words need to be documented.
No one is absolutely sure of exactly what Abraham Lincoln said in his most famous speech, the Gettysburg Address. Five known manuscripts exist, but all are slightly different. Every newspaper story from the day contains a different account.
In the case of modern presidents, for the official record, we rely on transcriptions of all their speeches collected by the national government.
But in the case of Donald Trump, that historical record is likely to have a big gap. Almost 10 percent of his public speeches as president are excluded from the official record. That means a false picture of the Trump presidency is being created in the official record for posterity.
In 1957, the National Historical Publications Commission, a part of the National Archives, recommended developing a uniform system so all materials from presidencies could be archived. They did this to literally save presidential records from the flames: Warren G. Harding's wife claimed to have burned all his records, and Robert Todd Lincoln burned all his father's war correspondence. Other presidents who had their records intentionally destroyed include Chester A. Arthur and Martin Van Buren.
So the government collects and retains all presidential communications — including executive orders, announcements, nominations, statements and speeches. This includes any public verbal communications by presidents, which are also placed in the Compilation of Presidential Documents.
These are part of the official record of any administration, published by the National Archives. In most presidencies, the document or transcript is available a few days to a couple of weeks after any event. At the conclusion of an administration, these documents form the basis for the formal collections of the Public Papers of the President.
As a political scientist, I'm interested in where presidents give speeches. What can be learned about their priorities based on their choice of location? What do these patterns tell us about administrations?
For example, Barack Obama primarily focused on large media markets in states that strongly supported him. Trump went to supportive places as well, including small media markets such as Mankato, Minn., where the airport was not even large enough to accommodate the regular Air Force One.
I found something odd when I began to organize my own database of locations for Trump's speeches. I was born and raised in Louisville, so I pay attention to Kentucky. I knew that on March 20, 2017, he addressed a rally in Louisville — a meandering speech that touched on everything from coal miners to the Supreme Court, China to building a border wall and the "illegal immigrants" who were, he said, robbing and murdering Americans.
But when I looked at the compilation a few months later, I couldn't find the speech. No problem, I thought. They are running behind and will put it in later.
A year later, it was still not there. Furthermore, others were missing. These were not any speeches, only the rallies. By my count, 147 separate transcripts for public speaking events are missing from Trump's official records — just above 8 percent of his presidential addresses.
A 1978 law says administrations must retain "any documentary materials relating to the political activities" of the president or his staff if such activities "relate to or have a direct effect upon the carrying out" of the president's official or ceremonial duties.
An administration may exclude records that are purely private or don't have an effect on official duties. All public events are included, such as quick comments on the South Lawn, short exchanges with reporters and all public speeches, radio addresses and even public telephone calls to astronauts aboard space shuttles.
But Trump's widely attended rallies, and what he said at them, have so far been omitted from the public record his administration supplied to the Compilation of Presidential Documents. And while historians and the public could make transcripts from publicly available videos, that still does not address the need to have a complete official collection of the 45th president's statements.
Federal law says presidents may exclude "materials directly relating to the election of a particular individual or individuals to Federal, State, or local office, which have no relation to or direct effect upon the carrying out of ... duties of the President."
This has been interpreted to mean an administration could omit notes, emails or other documentation from what it sends to the compilation. While many presidents do not provide transcripts for speeches at private fundraising events, rallies covered by America's press corps do not likely fall under these exclusions.
Government documents are among the primary records of who we are as a people.
These primary records speak to Americans directly; they are not what others tell us or interpret for us about our history. The government compiles and preserves these records to give an accurate accounting of the leaders the country has chosen. They provide a shared history in full, instead of an excerpt or quick clip shown in a news report.
Since 1981, the public has legally owned all presidential records. As soon as a president leaves office, the National Archivist gets legal custody of all of them. Presidents are generally on their honor to be good stewards of history. There is no real penalty for noncompliance.
But these documents have so far always been available to the public — and they've been available quickly. Internal documents like memos or email face a rigorous archival review that lasts years before they are even accessible. All public speeches of every president since Bill Clinton have been available online. Until Trump, there was nothing missing.
By removing these speeches, Trump is creating a false perception of his presidency, making it look more serious and traditional than it was.
That Louisville speech, for example, is still among the missing.
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Foraging for voter fraud has found scattered crimes across North Carolina — but they occurred five years ago, when Donald Trump won the presidency, not when he says he was cheated out of re-election last fall.
Federal prosecutors in Raleigh have announced charges against 24 more non-citizens since last year, with several new cases brought last week. But only two have recently been accused of voting illegally, bringing to 21 the number of foreigners who appear to have wrongly cast ballots in 2016 in one of the premier battleground states. All the others were charged with falsely claiming citizenship, or falsifying immigration papers, in order to register to vote.
But the Justice Department has made no allegations of a conspiracy to tilt the outcome. And given the minuscule numbers involved, such a scheme would not have been worth the effort, no matter the purported beneficiary.
Trump bested Hillary Clinton by 174,000 votes in North Carolina in 2016, while fellow Republican Richard Burr won reelection to the Senate by 267,000 votes. Last year, Trump took the state's 15 electoral votes by a smaller but still decisive 75,000 votes.
The state GOP went on an extensive social media campaign after the election in support of Trump's wholly unsubstantiated allegations of fraud in states he lost. In fact, one of the most palpably improper actions of the campaign took place when the president encouraged North Carolinians to vote twice, once by mail and once in person — to test the resilience of the state's election system, he asserted.
The 43 people who have been charged — after a highly publicized and aggressive investigation — are listed as being from Mexico and several Central American countries as well as France, Yemen, Iraq and Nigeria.
Between his appointment by Trump and the 2018 midterm election, U.S. Attorney Bobby Higdon used subpoenas, issued on behalf of Immigration and Customs Enforcement, in an effort to obtain millions of voting records from the state Board of Elections and more than 40 counties in the half of the state under his jurisdiction.
The state board rebuffed the demand, labeling it overly broad and unreasonable, while voting rights activists said they suspected a partisan fishing expedition. After extensive negotiations, two years ago the state agreed to turn over its records for about 800 people.
The federal prosecutor's office, under new management since the start of the Biden administration, did not connect the charges to the documents they received.
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