Donald Trump has said that he and Twitter are never, never, never getting back together. He insists that he’s perfectly happy to bleat into the ether on his own website, while occasionally “truthing” on his knock-off Truth Social platform. And yet, he’s suing Twitter demanding to have his account reinstated, and has gone so far as to file an appeal after US District Judge James Donato unceremoniously dropkicked his idiotic lawsuit last month.
The theory of Trump’s Twitter LOLsuit and its giggling siblings filed against Meta and YouTube is that the social media platforms were acting as government agents when they nixed his accounts. His lawyers actually argued with a straight face that the tech companies were conscripted into government service after Democrats threatened to ditch Section 230 of the Communications Decency Act. (It never gets any less insane, no matter how many times you type it.)
Never mind that conservatives like Senator Josh Hawley have been among the loudest critics of the law which immunizes internet platforms for user-generated content. Now is not the time to get hung up on the fact that Trump himself vetoed the $740 million National Defense Authorization Act in 2020 because Congress refused to nuke Section 230. That’s neither here nor there! Trump insisted that the tech companies were so terrified of Rep. Adam Schiff that they swung into action to censor conservatives, and that this constitutes a grievous violation of his First Amendment rights.
In the event, Judge Donato was singularly unimpressed with the argument, and, frankly with the lawyering, too. Here he is marveling that a federal practitioner can be unaware that the “Twiqbal” standard requiring that the facts alleged must be actually plausible applies to all federal civil cases.
Plaintiffs make the odd assertion that these pleading standards apply only in antitrust conspiracy actions. Dkt. No. 145 at 6 n.7. Twombly and Iqbal expressed no such limitation, and their standards have been applied to a myriad of Rule 12(b)(6) motions in non-antitrust actions in every federal district and circuit court. A scant minute of online research makes this abundantly clear.
But Trump isn’t going to take this lying down! Today he noticed an appeal to the Ninth Circuit of the dismissal of his case. Those activist liberal judges can’t cancel culture Donald Trump! The man’s got rubes to fleece with claims that he’s raising cash for his legal defense, and he’s not letting some trial judge from the land of fruit and nuts get in his way.
Next stop San Francisco, and then it’s on to SCOTUS. Shit, you can get five justices to bite on anything these days, right?
Trump v. Twitter [Docket via Court Listener]
Elizabeth Dye lives in Baltimore where she writes about law and politics.
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