Twitter v. Trump, Part 3: Trump’s Best ‘Free Speech’ Claim Against Twitter

July 28, 2021 Updated: August 6, 2021

Commentary

“We’ve increased disinformation research and tracking …. We’re flagging problematic posts for Facebook that spread disinformation. … It’s important to take faster action against harmful posts. As you all know, information travels quite quickly on social media platforms; sometimes it’s not accurate. And Facebook needs to move more quickly to remove harmful, violative posts,” said White House Press Secretary Jen Psaki on July 15.

What gets the Biden administration into legal trouble for this conduct may be a line of case precedents that began with a finding of racial discrimination by Joe Biden’s home state of Delaware.

This is the third and final installment in a series on the legal and constitutional issues raised by former president Donald Trump’s lawsuit against Twitter.

We begin with the Delaware racial discrimination case. It was Burton v. Wilmington Parking Authority (pdf), decided by the Supreme Court in 1961. The Wilmington Parking Authority was a state agency. It owned an off-street automobile parking garage and leased part of the premises to Eagle Coffee Shop.

Eagle Coffee Shop refused to serve African-Americans. This was before the passage of the federal Civil Rights Act of 1964, and Delaware law then permitted restaurants to discriminate based on race.

The Constitution’s 14th Amendment requires each state to grant all persons equal protection of the laws. Even in 1961, therefore, it was unconstitutional for Delaware to discriminate based on race. However, in the Burton case, the state argued that the coffee shop was a private entity, entitled to make its own decisions.

In response, the African-American plaintiff argued that this was not a private decision because the state was colluding with the coffee shop’s discriminatory conduct.

The court considered several factors. Militating against a finding of collusion was that the entrance to the Eagle Coffee Shop fronted directly on the street, so it was clear that the coffee shop was an entity separate from the state garage. Moreover, most of the building was not used for parking, but leased out to private establishments that could pursue their own policies. And the state’s leases did not explicitly require the tenants to discriminate.

On the other hand, the state owned the underlying land. The state negotiated the leases and could have assured non-discrimination. The state was responsible for building maintenance and repairs. And the revenue from the leases was central to the viability of the parking garage project.

Based on these facts, the court found collusion: “The State has so far insinuated itself into a position of interdependence with Eagle,” the court wrote, “that it must be recognized as a joint participant in the challenged activity ….” A private company, in conjunction with the state, had violated the Constitution.

In the 1973 case of Norwood v. Harrison (pdf), the Supreme Court held that government may not aid private activities that would be unconstitutional if the government performed them directly. This seems to be an obvious deduction from the Burton case.

In 2001, the court decided Brentwood Academy v. Tennessee Secondary School Athletic Association (pdf). The justices found that a private entity was so “entwined” with government that its unconstitutional actions could be attributed to the government.

If you’re familiar with business practice, you may recognize the underlying principle at work in these cases. It’s one of several principles governing those business entities known as joint ventures. When one or more persons or entities pursue a business opportunity as joint venturers, then—in absence of a statute to the contrary—each participant is bound by the others’ actions. (A more trendy term for the relationships in Burton, Norwood, and Brentwood Academy is “public-private partnership.”)

Trump and his co-plaintiffs allege collusion between the federal government and Twitter. If their allegations are true, then the collusion is even more flagrant than in any of the foregoing Supreme Court cases.

Trump and his co-plaintiffs have not yet proved their allegations, but White House Press Secretary Jen Psaki has just helped them out: The comments quoted at the beginning of this essay tend to show active cooperation between the Biden administration and social media to suppress ideas the administration doesn’t like.

A day later, Psaki helped the Trump case further: “We are regularly making sure social media platforms are aware of the latest narratives dangerous to public health that we and many other Americans are seeing across all of social and traditional media.”

Psaki was referring specifically to social media postings on COVID-19. But I doubt the collusion and pressure stops there. My political career taught me the following maxim: Where there is smoke, there usually is more smoke. After all, the Biden administration likely deems discussion of certain other issues as “disinformation” or “dangerous” or “harmful.” The irregularities in the 2020 presidential election come to mind.

There’s additional evidence of collusion between social media and the Biden administration and other federal officeholders affiliated with the Democratic Party. For example:

  • Social media companies admit they follow government guidance on pandemic issues and suppress the views of dissenters.
  • There’s a close identity between the “progressive” agenda and the Biden administration and who and what gets canceled and censored.
  • As listed in the Trump complaint, powerful Democratic officeholders have demanded repeatedly that Trump be banned from social media, often backing their demands with threats of retaliation for non-compliance. Some of those officeholders are now uniquely able to enforce their demands—particularly Joe Biden and Kamala Harris.

Unlike in Trump’s hastily dismissed election challenges, in this lawsuit he will have an opportunity to conduct “discovery”—that is, fact-finding supported by subpoena. If the plaintiffs actually do uncover systematic efforts by the Biden administration and other Democratic officeholders to suppress freedom of speech and freedom of the press, this will be the most egregious abuse-of-power scandal in recent times.

Robert G. Natelson, a former constitutional law professor, is senior fellow in constitutional jurisprudence at the Independence Institute in Denver and the author of “The Original Constitution: What It Actually Said and Meant” (3rd ed. 2014).

Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.

Rob Natelson
Rob Natelson
Robert G. Natelson, a former constitutional law professor, is senior fellow in constitutional jurisprudence at the Independence Institute in Denver, and a senior adviser to the Convention of States movement. His research articles on the Constitution’s meaning have been cited repeatedly by justices and parties in the Supreme Court. He is the author of “The Original Constitution: What It Actually Said and Meant.”