Regardless of what one thinks of former President Trump, or his use of social media, the lawsuits he filed today against Twitter, Facebook, and Google's YouTube are not frivolous. They claim that the immunity from liability granted to social media companies by Section 230 of the Communications Act, in effect, converts these private firms into 'state actors' for First Amendment purposes because the immunity grant amounts to a delegation of authority by Congress that facilitates the companies' censorship actions. If the state action theory is correct, then the Big Tech companies would not be able to censor posts — or deplatform persons — based on the content of their lawful speech.
In his recent Biden v. Knight First Amendment Institute concurring opinion, Justice Thomas lent credence to the "state actor" theory upon which Trump’s lawsuit is based, and other respected scholars have done so as well. While the claim is not frivolous, I'm not convinced at this point that Section 230's grant of immunity, standing alone, is sufficient to make the Big Tech social media companies state actors. It is certainly possible, however, that if the case makes it to the discovery phase, Trump could uncover a trove of emails from various congressional officials urging the social media companies to take certain actions which the firms quickly took. That would make the case even more interesting, and the claim stronger.
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