Can a private company be sued for a First Amendment free speech violation if it restricts the speech of another private party?
Yes, but the plaintiff must prove that the party who committed the offense was acting for the government.
Donald Trump raised the issue when he and other plaintiffs sued Twitter when the social network permanently suspended Trump’s account on January 8, 2021 after his supporters stormed the Capitol two days earlier. In the company’s announcement, Twitter specifically cited two of Trump’s tweets which it said were “highly likely to encourage and inspire people to replicate the criminal acts that took place on the US Capitol” on January 6.
Trump claimed the ban was a violation of his First Amendment rights under the federal Constitution.
But wait, the First Amendment is a constitutional obligation owed by the government to private citizens, not by a private party to another citizen. This is precisely what the judge in the Trump case decided when he dismissed the lawsuit.
There is an exception so that a private party is not subject to First Amendment violations against another party. This is where the private party acts as a government entity. This doctrine provides that, in certain situations, governmental authority dominates an activity to such an extent that its participants must be deemed to act with the authority of the government and, therefore, be subject to constitutional restrictions.
Private entities are presumed to act as such, and maintaining the boundary between the private sphere and the public sphere, with all the consequent constitutional obligations, is of great importance. Proving that a private party was acting on behalf of the government is therefore considered by the courts to be a difficult legal route. The judge in the Trump case concluded that Trump’s legal plow was too dull to bite. Trump alleged no facts convincing the judge that Twitter was acting as a government entity when he terminated his account.
There were no allegations that Twitter was forced or threatened by any government agency or actors to terminate Trump’s account, the kind of facts the courts have found where the state acts through parties private. Trump essentially made a flippant allegation that Democrats and Trump’s political opponents in Congress were conspiring with Twitter to ban him.
Trump also asked the judge to declare unconstitutional the federal Communications Decency Act, which states that online service providers such as Twitter cannot be held responsible for content posted by users. The judge rejected this claim because Trump had no legal standing (legal prejudice) to challenge the act
Trump could not show that Twitter “would not have de-platformed the plaintiff” without CDA legal immunity for content.
The judge allowed Trump to edit his claims to add factual allegations that Twitter was a state actor, but warned it would be doubtful he could.
Many Republican-controlled state legislatures have recently passed laws prohibiting their elementary schools from teaching certain topics concerning race in the United States.
Expect First Amendment challenges from teachers or districts to such laws. These are clearly state actions, and the benefits of these legal challenges are, unlike Trump’s, likely to be extremely sharp.
Brett Kepley is an attorney with Land of Lincoln Legal Aid Inc. Send your questions to The Law Q&A, 302 N. First St., Champaign, IL 61820.