Suing big tech // Attorney John Coale, who brought a lawsuit on behalf of Donald Trump and others against Twitter, Facebook and YouTube for banning Trump from their platforms, explains the legal underpinnings of his complaint

John Coale with Donald Trump
Personal injury lawyer John Coale is the lead counsel in former President Donald Trump’s class-action lawsuit against Big Tech companies Google, Facebook and Twitter. In the suit, which seeks unspecified damages, Trump wants the federal judges to overturn Section 230 of the Communications Decency Act, which shields the Silicon Valley titans from the content that they publish. The suit specifically alleges that the companies’ censorship of him is unconstitutional.

Numerous constitutional experts, including Republican senators, have said that this lawsuit will probably fail because these are private companies. What do you maintain is its legal basis?

The legal basis is that Congress, or the federal or state governments, cannot delegate what they cannot do themselves. None of these agencies has the right to censor people. One of the tests of this that the Supreme Court put together over the years is coercion. When you saw the congressmen and senators yelling at the CEOs of these companies, “You’d better do something about misinformation!” “You’d better do something about hate speech!” and “You’d better do something about Donald Trump!” well, they can’t do anything, and they’re not allowed to threaten them either. But they did it anyway, threatening that the companies could be broken up, they could lose their immunity and bad things could happen to them. The Supreme Court says that you cannot coerce private companies to do things without those companies becoming government actors.

But didn’t Congress expressly grant these Internet companies immunity?
When they were given immunity—which happened 25 years ago—Mark Zuckerberg was in middle school; these companies did not exist. The immunity was intended to protect the Internet companies from being implicated in cases of child endangerment and the like. But they grew into a monster that was never intended, and now because they have immunity they are “encouraged” to do things that Congress cannot do. We believe we can prove that they’ve done enough things to become government actors.

The other thing they cannot do is that the CDC, Dr. Fauci and everyone else has every right to his own medical opinions, but they cannot encourage and help private companies like Facebook and Twitter censor people who disagree with their views of the virus, or whatever it happens to be. They are once again offloading things that are unconstitutional by the federal government, the CDC, Dr. Fauci and the NIH, and we can prove this in emails that were sent between them as well as public statements showing that that was going on. So in my view, we have passed the test established by the Supreme Court that makes a private company into a government actor. Once we get past that hurdle, the First Amendment and free speech applies, and they’re in trouble.

Certainly, once they become a governmental agent the First Amendment applies. But do you think that in this current environment, based on precedent and the comments made by various justices, you can prevail?

I do. They were doing these kinds of things previously, but it got out of control in 2019 and continued until the present day. There’s something in constitutional law called prior restraint. That means that if I’m the government and I think you’re going to say something I don’t like, I take away your First Amendment right and say, “You can’t say that, and I’m using the law to say that you can’t.” That’s what happened when the government wanted to suppress the Pentagon Papers. The New York Times was going to publish them, but the government told them they couldn’t do it. So they went to the Supreme Court, and the Court ruled that they could publish them because the government can’t prior restrain them.

To read more, subscribe to Ami