Attorneys for former president Donald Trump are pressing an appellate court to revive his lawsuit accusing Twitter of violating the First Amendment by banning him after the January 6 riot at the Capitol.
In papers filed late last week, Trump's lawyers argue that recent revelations about Twitter's content moderation efforts support the inference that the company “served as a censorship proxy for the government.”
The new papers rely heavily on the so-called “Twitter Files” -- formerly confidential material about editorial moves that occurred before CEO Elon Musk took over last year. Musk made that material available to freelance journalists who reported on some of those editorial decisions, including the brief suppression of a New York Post story about Hunter Biden's laptop.
Trump's lawyers argue to the appellate court that the Twitter Files support the claim that Twitter “entered into a covert collaboration with the government to censor disfavored viewpoints and silence speakers who departed from the party narrative.”
The former president's papers mark the latest development in a legal battle dating to July of 2021, when Trump and other conservatives sued Twitter allegedly violating the First Amendment by blocking him from their platforms. (Twitter subsequently reinstated Trump, but he has yet to resume using the platform.)
U.S. District Court Judge James Donato in the Northern District of California threw out the lawsuit against Twitter in May, ruling that the First Amendment prohibits the government -- but not private companies like Twitter -- from engaging in censorship.
Trump then appealed that ruling to the 9th Circuit, arguing that Twitter was effectively acting as an arm of the government when it banned him from the platform.
“Powerful Democratic legislators threatened to use their official authority to impose Draconian legal consequences against defendants and other social media companies if they did not censor disfavored speakers and speech,” Trump's lawyers argued to the appellate court in their initial round of papers.
Trump's counsel pointed to several examples of elected officials either calling for Trump to be banned from social media, or calling for changes to Section 230 of the Communications Decency Act -- the law that protects platforms from liability over users' speech. For instance, Trump's lawyers point to a statement made by Vice President Kamala Harris in October of 2019 (when she was still a Senator), calling for Trump's Twitter account to be suspended, and to Rep. Nancy Pelosi (D-California)'s warning that tech companies' legal protections could be in jeopardy, unless they acted with more “responsibility.”
Twitter countered that Trump's appeal should be rejected for several reasons, including that his lawsuit is moot because his account was reinstated.
The company also urged the 9th Circuit to reject claims that the ban was due to pressure by the government.
“Mere attempts by public officials to persuade private actors cannot amount to coercion,” Twitter argued. “Individual legislators, however powerful, cannot single-handedly amend or repeal Section 230 or any other law.”
But Trump's lawyers argue in their new filing that the Twitter Files point to an “unlawful government-Twitter partnership.”
“Motivated by fear of losing its Section 230 immunity and under pressure from federal officials and law enforcement, Twitter entered into a covert collaboration with the government to censor disfavored viewpoints and silence speakers who departed from the party narrative,” Trump's lawyers contend.
Trump was also banned by Facebook and YouTube after January 6, and sued those companies as well. Those matters are currently stayed, pending an appellate ruling in the lawsuit against Twitter.
The 9th Circuit is expected to hear arguments later this year in San Francisco.