The Best Lawsuits

In July, Donald Trump held a batshit presser to announce that he was filing a bunch of batshit LOLsuits against Twitter, YouTube, and Facebook for tortiously deplatforming him in violation of his sacred First Amendment rights. And he filed them in federal court in Florida, despite all three platforms having forum selection clauses in their terms of service that require all claims to be adjudicated in California and under California law.

The theory of these cases — if indeed this drivel rises to the term — is that the tech platforms are actually the government, and thus when they booted him, it was mean Democrats doing unlegal censorships. Not deterred by facts or logic, Trump also argued that he himself was the government, and thus could not be constrained by mere terms of service and forum selection clauses like a common mortal.

"Defendant's Motion [to transfer the case to California] should be denied because the forum selection clause in Defendant's TOS does not apply to Plaintiff, who at all times relevant to this dispute was the sitting President of the United States and the head of the Executive Branch of the federal government," he argued in the Twitter case.


Astute observers will note that "this dispute" was filed in July, when the plaintiff was most definitely not "the sitting President of the United States." And even if he were, that would make this a case of the government censoring itself, and thus not an issue of First Amendment law. But we don't need to engage in a meta-analysis here, since the thing is just garbage on its face.

Certainly the courts thought so, with US District Judge Michael Moore bouncing the YouTube suit off his docket on October 6.

"To begin, the Court need not reach the issue of whether the United States or its officials can be bound by a forum-selection clause because, in this case, there is no federal agency or entity that is a party to this case," he wrote, noting that "Plaintiff Trump agreed to the TOS in his individual capacity, has brought this suit in his individual capacity, and is seeking the restoration of his YouTube account in his individual capacity."

US District Judge Robert Scola Jr. was even more scathing yesterday when he yeeted the Twitter suit, going through the five statutes and cases cited by Trump's crack legal team and pointing out that not one of them had anything to do with the instant claim.

Even assuming that Trump was using his account in his official capacity, Trump has not advanced any legal authority to support his contention that he satisfies the second requirement of the exemption: that he is "legally unable to accept the controlling law, jurisdiction, or venue clauses. . ." The response in opposition cites several regulations to show that Trump was legally prohibited from accepting the forum selection clause at issue. (Resp. in Opp'n, ECF No. 58 at 9.) However, after a careful review of the citations, the Court finds that not one prevents Trump for accepting the forum selection clause.

Trump's tweets were collected at the National Archive, so Twitter's forum selection clause, which he both agreed to and sues under as a private citizen, doesn't apply? GTFOH.

Nor were the judges impressed by the plaintiff's attempt to Florida-ize the cases by adding a nonsensical claim under the Florida Deceptive and Unfair Trade Practices Act. Without professing an opinion as to whether Florida's consumer protection law applies to social media platforms (it doesn't), both judges expressed confidence that their California brethren would be well-equipped to interpret Florida statute if the need should arise.

The motion to transfer the Facebook case is still pending, probably because the court hasn't stopped laughing at the affidavits submitted last week from Alan Dershowitz and Corey Lewandowski splaining how the court just has to order Zuck to give Trump back his account right now or else.

Dersh reminds the court that he used to teach at Harvard, gestures feebly in the direction of the the complaint and says, "I believe the allegations of the Complaints which I have reviewed raise serious, substantial legal issues some of which have not been heretofore litigated." He's also worried that "Unless preliminary relief is granted, it is likely that the censorship imposed by Facebook and Twitter will impact the 2022 elections." Not for any specific reason, you know, he just feels it in his kishkes and wants the court to do something about it.

As for Lewandowski, who was recently banished from Trumpland, he's very sure that "President Trump's continued absence from YouTube, Facebook, and Twitter constitutes a prior restraint in the vitality of the 'marketplace of ideas' in American politics." Which has fuck all to do with the law, but perhaps we should cut Corey a break since he "runs 400 miles a week, and that's why he can last for 8 hours in bed," so he's probably pretty tired.

In summary and in conclusion, this is some weak shit lawyering, and now Trump is going to have to prosecute his weak shit claims in even more hostile territory. Bang up job, boys.

[Trump v. Facebook, Docket via Court Listener / Trump v. Twitter, Docket / Trump v. YouTube, Docket]

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Liz Dye

Liz Dye lives in Baltimore with her wonderful husband and a houseful of teenagers. When she isn't being mad about a thing on the internet, she's hiding in plain sight in the carpool line. She's the one wearing yoga pants glaring at her phone.

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