President Trump’s fight for his Twitter account is back in the news after he filed a motion for a preliminary injunction arguing that blocking him from the social-media platform violated the First Amendment.
Is it even possible for Twitter to violate the First Amendment when it’s not a government agency? Generally speaking, the answer is no: a private actor cannot violate the First Amendment, because the First Amendment is a limitation on government action.
But every rule has its exceptions, and Trump is trying to exploit those exceptions here. There are three primary exceptions at play:
- The government can be held responsible for private actors’ conduct when it coerces them into acting. Blum v. Yaretsky, 457 U.S. 991, 992 (1982). Here, Trump is arguing that the government coerced Twitter into shutting down his account, and that this coercion amounted to a First Amendment violation by Twitter itself.
- The government can be held liable a private entity acts based on “significant encouragement” from the government. Blum at 992. As an alternative theory, Trump is arguing that Section 230’s promise of immunity for blocking decisions amounted to signficant encouragement.
- Finally a private actor can be held responible for a civil-rights violation when it undertakes a “joint activity” with the government. United States v. Price, 383 U.S. 787, (1966) (“To act `under color’ of law does not require that the accused be an officer of the State. It is enough that he is a willful participant in joint activity with the State or its agents.”). As a second alternative, Trump is arguing that Twitter was working directly with the federal government to identify “disfavored speech” that should be blocked.
So Trump’s lawyers aren’t just making up rules, but these arguments are all still prety weak, for a few reasons.
First, as far as I know, the Supreme Court has only permitted liability against the government in coercion/encouragement cases, but Trump is arguing that this rule permits him to hold the private actor accountable. There is some support for this theory, see, e.g., Carlin Communications, Inc. v. Mountain States Telephone & Telegraph Co., 827 F.2d 1291, 1295 (9th Cir. 1987) (“With this threat, Arizona “exercised coercive power” over Mountain Bell and thereby converted its otherwise private conduct into state action for purposes of § 1983.”), but I don’t know that it’s widely accepted.
Second, and probably more importantly, Trump fails to address a serious “bad fact”: that he was still president when Twitter blocked him. This means he is essentially accusing himself of coercing or encouraging Twitter to block his account.
If the courts are going to extend the First Amendment to allow liability against private actors, I doubt they’re going to do it on these facts.