A federal appeals court panel displayed skepticism on Wednesday regarding the revival of former President Donald Trump’s lawsuit against Twitter, now known as X, over his ban from the platform two years ago.
Challenging Twitter’s Ban
The three-judge panel of the 9th Circuit Court of Appeals heard arguments from Trump’s lawyers, who contended that Twitter/X acted under the influence of members of Congress and other U.S. government officials when it deplatformed Trump in January 2021. This move followed the storming of the Capitol by thousands of Trump supporters, during which Trump’s tweets, including one stating he would not attend Joe Biden’s inauguration, were deemed likely to incite further violence.
Doubt from the Judges
Two of the three judges expressed skepticism about whether the statements from a small group of House members and senators were sufficient to plausibly threaten the social media companies with legal consequences.
Judge Mark Bennett noted that the number of Congress members making these statements was minimal and questioned the assertion that such statements could cause the federal government to take action. He stated, “I don’t know of any case that stands for that proposition.”
Legal Crusade Against Social Media Companies
Elon Musk, the new owner of Twitter/X, reinstated Trump on the platform in November 2022. Trump, however, continues his legal battle against the company. This effort is now led by former 9th Circuit Chief Judge Alex Kozinski, a libertarian attorney.
Kozinski, despite his controversial past, has pursued Trump’s Twitter lawsuit with vigor. He has argued that the evidence from a separate lawsuit by the attorneys general of Missouri and Louisiana provides substantial proof of pressure on social media firms and government involvement in their content decisions.
Challenges to Trump’s Position
Judge Jay Bybee, a former colleague of Kozinski, referred to him simply as “counsel” during the arguments and seemed less skeptical about Trump’s lawsuit than Judge Mark Bennett. Bybee did suggest that a 9th Circuit ruling in May, denying relief to Robert F. Kennedy Jr. in a similar suit against Sen. Elizabeth Warren, could undercut Trump’s position.
Bybee also raised the possibility of delaying the appeal until the Supreme Court rules on cases involving the constitutionality of Florida and Texas laws aimed at preventing social media censorship.
Complex Legal Landscape
Trump filed lawsuits against Twitter, Facebook, and Google’s YouTube in July 2021. These suits targeted the platforms’ suspensions of his accounts following his alleged role in inciting the violence on January 6, 2021. U.S. District Court Judge James Donato dismissed Trump’s suit against Twitter in May 2022, ruling that the company was not acting as an arm of the state when it suspended Trump. Litigation for Trump’s suits against Facebook and YouTube remains on hold pending the outcome of the Twitter case appeal.
Twitter, under Musk’s leadership, has introduced changes to its content moderation policies and restored Trump’s account. However, the case continues as other political and anti-vaccine activists joined Trump in the lawsuit, and not all their accounts have been reinstated.
Twitter maintains that it has the right to make content decisions without legal liability for acting as a government agent.
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