Trump is beginning a difficult uphill battle against big tech censorship
LOS ANGELES — When Donald Trump was accused by multiple women of alleged sexual improprieties, I dismissed the accusations as unserious. I said that if the women were serious, they would make their accusations in a court of law, not the court of public opinion. In a court of law, there is a discovery phase. If people are caught lying, they face criminal charges. The women never went to court because they wanted to avoid discovery at all costs.
With Trump suing the tech companies, I’m afraid the roles are reversed. I believe he has a weak case. My main concern is that he would get eaten alive in the discovery phase. However, this being a class-action suit, brought by many plaintiffs, it is not just the standing of the former president to bring the suit. It will also be all those, like Communities Digital News, who will seek to join the suit. They may very well be able to prove actionable damages, even if the court rejects the President’s plea.
These tech companies very well could be evil. Yet one of the main aspects of lawsuits is the deep pocket theory.
The deep pocket theory says that you sue the people with the most money. The problem with this is that those are the very people who can also afford the best legal defense teams. So the deep pocket theory cuts both ways. In the cases that involved women suing Trump for alleged sexual improprieties, Trump had deep pockets. He could use his vast wealth to bankrupt his accusers. In the current situation, Trump still has a few billion dollars to support his lawsuit.But the tech companies are worth trillions. Trump is actually the little guy in this dispute. They can outspend him.
I don’t see how he wins this battle.
Underestimating Donald Trump has proven foolish. But in this lawsuit, he has an uphill climb. The U.S. Supreme Court is conservative. While a couple of the conservative justices are itching to take on big tech, a majority of this court is known for wanting to avoid anything controversial. Justice Roberts himself is well known for forcing legislators to legislate and demanding that the courts not be used to clean up congressional messes.
This means that until and unless Congress passes a law repealing section 230, the SCOTUS may wish to defer a decision rather than be seen as engaging in judicial activism.
Court cases take years.
The best hope for those angry at the big tech companies is to push for legislative action in Congress. But any move in this direction is also unlikely to reach a legal, proper and satisfying conclusion. After all, it remains a given that both Democrats and Republicans are internally split on the issue. Leftist Democrats hate the big tech companies. But other Democrats love the censorship as long as it is Republicans who are being censored.
On the other side of the aisle, at least some Republicans want to go after the big tech companies. But other Republicans are very reluctant to have the government interfere in the private sector. Unlike guns and taxes, regulation of big tech does not fall neatly along ideological lines.
Yet on the flip side of this dilemma, there could be enough bipartisan anger at these tech companies to get a bipartisan bill passed in Congress. Nevertheless, there is no guarantee that President Joe Biden would sign it. And if he vetoes it, it remains doubtful that there is enough support to override a veto. One issue is that most Democrats and even a few Republicans simply hate Trump’s guts. They would reflexively abandon a policy they agree with just to spite him.
So even if the message to break up the big tech companies turns out to be the right one, many who would otherwise support this regard Trump as the wrong messenger. But again, we must remember that Trump is very good at winning battles in the court of public opinion. But ultimately, that still means nothing in a court of law.
About the Author:
Brooklyn-born, Long Island raised, and now living in Los Angeles, Eric Golub is a politically conservative columnist, blogger, author, public speaker, satirist, and comedian. But he lives for football. Particularly the Raiders.