When Section 230 of the Communications Decency Act of 1996 was enacted, no one could have foreseen the power social media companies would wield 20 years later, according to an attorney working with former President Donald Trump.
“Lawmakers had no idea we'd be living in the atmosphere we are today,” said John Coale, Trump's lead attorney. “These companies didn't exist and Mark Zuckerberg was in middle school when the law was passed.”
Coale represents Trump over YouTube's decision to de-platform the former president on Jan. 12, 2021.
“We're waiting, waiting, waiting,” Coale told the Southern California Record. “The judge is figuring out what to do.”
Originally filed in the Southern District of Florida, the case was transferred and is currently pending before U.S. District Judge Jeffrey White in the Northern District of California.
"If it's dismissed, we'll go to the Ninth Circuit, which I've always believed this case, in the end, will be decided in the U.S. Supreme Court so whatever happens at the district level will be appealed either by us or them," Coale said.
In a brief in opposition to YouTube's motion to dismiss, the plaintiff's counsel argued that the streaming video company had violated the First Amendment rights of Trump and other class members of the lawsuit.
“YouTube is a state actor and Congress basically delegated what they couldn't do themselves, which is censorship, and therefore they have violated free speech rights,” Coale said.
The suit claims that Trump and putative class members were banned using non-existent or broad, vague, and ever-shifting standards.
“While YouTube's ban and prior restraint of the plaintiff are well documented, the untold stories of the putative class members are now stirring the public conscience," the suit claims. "Defendants have also mounted an aggressive campaign of censorship against a multitude of the putative class members through censorship resulting from legislative coercion and collusion with federal actors.”
Trump is requesting a preliminary injunction that would restore his ability to stream video on YouTube.
“It's not Trump-centric,” Coale said of the complaint. “He was the president of the United States and was banned. So, he has the best factual situation. The lawsuit is about preventing these companies from picking and choosing. I don't even know if he wants to get back on YouTube but he should have the opportunity to be on Twitter, Facebook, or YouTube just like everybody else and not to be censored."
Trump has since launched his own social media site called Truth Social, according to media reports.
His complaint asks the court to declare Section 230(c)1 and (c)2 an unconstitutional delegation of authority.
“We think it needs to be amended,” Coale added. “It’s fine for things like child pornography to make sure that doesn't happen but a catch-all phrase, which they have run with to censor anything they don't like, has to go."
The catch-all phrase in Section 230 that Coale is referring to states, "...and other objectionable material."
“The problem with it is that it’s very subjective,” he said. “Very few people envisioned that we would have social media as we do and nobody predicted or thought we would ever be in such a hyper-political situation.”