A couple of weeks ago, Donald Trump filed putative class-action lawsuits against Facebook, Twitter, and YouTube (and their top executives) alleging that the social media companies violated the First Amendment when they banned Trump from their platforms.
Constitutional scholars promptly noted that the First Amendment applies only to governmental actors, not to private companies, and the complaints did not state a claim. No one’s ever confused me with a constitutional scholar, but that sounds about right to me.
Other commentators joined the fray, talking about discovery. If these lawsuits proceed into discovery, then Trump will have to give deposition testimony about his conduct before and after January 6. Although Trump says that he’d be happy to give that testimony, he’s bluffing. Cooler heads will prevail, and he won’t agree to testify under oath in civil cases against social media companies.
Within a year, either the courts will dismiss these lawsuits on First Amendment grounds or Trump will voluntarily dismiss the cases before his deposition is taken. You heard it here first.
But here’s another angle about which pundits have not yet spoken: Typicality.
People who are speaking to the general public can talk only about the First Amendment and discovery, because those are topics that the general public can understand. Given my audience here at Above the Law, I can dig (just slightly) deeper. I assume that most readers of Above the Law know that cases can proceed as class actions only where the members of the class are sufficiently numerous, legal issues are common to the class, the class representative’s claims are typical of the claims of others in the class, and the putative class representative is an adequate representative of the class.
I’m focusing here on the third requirement of Federal Rule of Civil Procedure 23(a): The so-called “typicality” requirement. I have two thoughts.
First, I bet it’s terribly hard to prove that Trump’s claims are “typical” of other members of the putative class. Facebook and Twitter probably throw people off their platforms for a multitude of different reasons, and those reasons almost surely vary from person to person. Trump was suspended, I assume, because he fomented insurrection (or some such thing). Other members of the putative class were probably suspended because — and here I’m just guessing — they spewed racist or sexist stuff, they advocated the violent overthrow of the government, they published links to child pornography or directions on how to construct nuclear or biological weapons, and God knows what else. This is one of many areas where my imagination probably isn’t up to the task, but discovery will surely reveal that each person is banned from social media platforms for very individualized reasons.
Second, as a practical matter, why does Trump want himself to be deemed “typical” of this class? This class surely includes people from both ends of the political spectrum. I’m confident that Twitter and Facebook ban bomb-throwing anarchists and riotous communists of the left as quickly as the platforms ban white supremacists and would-be autocrats of the right. Trump would be asking a court to decide that he was “typical” of a class of people that almost surely consists largely of lowlifes that the average person wouldn’t care to associate with, let alone be deemed typical of.
So here’s my bet: These cases will be dismissed, either by a court or by Trump voluntarily, before Trump’s deposition is taken. But, if I’m wrong, the typicality analysis will pose both a legal obstacle and a public relations nightmare for Trump. Trump’s claims probably can’t be typical of this class, and he probably doesn’t want a court to hold that they are. That’s yet another reason why these lawsuits are doomed to fail.
Mark Herrmann spent 17 years as a partner at a leading international law firm and is now deputy general counsel at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Drug and Device Product Liability Litigation Strategy (affiliate links). You can reach him by email at email@example.com.