Papers and newscasts mentioned that former President Donald Trump filed class action lawsuits Wednesday against Facebook, Twitter and Google over their suspensions of his accounts.
Three thoughts immediately came to mind; one in particular persists.
Thought #1: The First Amendment
The first, the suit’s lack of merit, has been mentioned widely elsewhere, citing various experts. As Paul Barrett, deputy director of NYU’s Center for Business and Human Rights was quoted in the Washington Post, Trump has the First Amendment “exactly wrong”. Facebook and Twitter have a First Amendment right to “determine which speech their platforms project and amplify – and that includes excluding speakers who incite violence…”
Indeed, the interesting question is whether, as many argue, such platforms have a duty to exclude such speech as crossing the line from speech into harmful conduct.
Thought #2: Irony
This was an offshoot of the first: the obvious irony of this purported conservative beseeching the Judicial Branch of the Federal Government to tell private companies how to run their businesses. (They must provide him accounts?) At least these defendants are large, powerful entities that can take care of themselves, compared to the countless individuals and small businesses ruined by dealings with him over decades.
As pointed out in prior posts, the Donald is “conservative” only when – and to the extent – it serves his immediate, personal interests. Any notion of his being a champion of the First Amendment is simply laughable.
Thought #3: Imagine the Discovery
But, most of all, the overriding thought was: Oh, how I would love to do discovery in defending these lawsuits! Lawyers for the defendants must be salivating at the prospect. They, along with prosecutors and investigators waiting in the wings, might almost hope the cases aren’t summarily tossed like the 60+ frivolous election cases. After all, this could be fun.
A Little Background
Before they go to trial, parties in legal cases both reveal and seek information reasonably available about the case they’re in. That applies to both the facts and legal arguments. The process for doing so is called “discovery”. Robust discovery is encouraged and often required.
It’s good for TV and movies to have last-minute “OMG!” surprises at trial. (Hey there, fans of Perry Mason.) It’s good public policy, however, to have parties better understand their opponents’ cases – and their own – earlier. Among the advantages of clarifying legal and factual issues up front are increasing the chances of (a) settling the case and (b) having a focused trial result in justice when the suit can’t settle.
Important point: We value discovery so highly that its scope is very broad. Generally, you don’t have to prove information would be admissible at trial in order to obtain it in discovery, for example.
Typically, all three methods of pre-trial discovery are under oath: interrogatories – where parties answer each other’s sets of questions; depositions – where witnesses testify; and (my favorite) requests for admissions – where parties must either admit or deny assertions made by the other party.
So…
It follows that anything arguably relevant is fair game for development via discovery. There are some very interesting items of relevance to the suspending of these accounts, given the events of January 6. Surrounding, but not necessarily limited to, January 6.
An obvious defense – perhaps the obvious defense – available in these lawsuits is that the plaintiff and his followers were misusing the defendants’ platforms to engage in dangerous, criminal, even seditious, conduct. The insurrection, horrendous in itself, is also both culmination of prior activity and precursor to future threats. (What exactly is to happen, by the way, when DT is NOT restored to the presidency in August?)
So, prepare those interrogatories, draft requests for admissions, and by all means schedule multiple depositions. And remind everyone that perjury is still a crime worth prosecuting.
Why’d He Do It?
This plaintiff has employed diversionary tactics often in the past. When something negative is brewing, outrageous statements and actions meant to distract are automatic. With various state and federal prosecutors poring over records, the organization being indicted, and Rudy Giuliani’s law license being suspended in New York, the seriously negative is just beginning to percolate. Perhaps he thought a pre-emptive strike in which he portrays himself as a victim might help.
On the other hand, maybe he just wanted his bullhorn back. He isn’t the lead story much anymore. It’s awful.
Finally, it may just be his latest fund raising scam.
Regardless, he may have been better off this time staying away from courtrooms and litigation. He’s going to be seeing more of each than he’d like, some on the criminal side, soon enough.
Ken Bossong
© 2021 Kenneth J. Bossong