The despotism underlying the Trump lawsuit: Just like China

Quixotic lawsuit for ulterior purposes

The filing of frivolous lawsuits is nothing new to the ex-president. The exclusionary policies of Facebook, Twitter and other private companies simply do not constitute state action and are beyond the “free speech” rhetoric of the Trump class action.

Social media companies and website operators are legally entitled to choose who and what appears on their sites without fear of liability, including the right to enforce (even selectively) their terms of use prohibiting speech they find to defame others or to incite partisans to violence. 

Threatened governmental control over social media: Just like in China

The Trump lawsuit smacks of the very same tactical targeting of the conduct of social media companies as used by the Chinese Communist Party and its President Xi. The common feature for presidents Trump and Xi is that high-tech and media organizations themselves should be considered part of the government apparatus with no boundaries at all.

President Xi believes he is a figure of historical significance and requires personal loyalty with anything else being grounds for expulsion from the Communist Party. According to a recent article in Foreign Affairs “he moved rapidly to consolidate his political authority, sideline his enemies, tame China’s once high-flying technology and financial conglomerates, and crush internal dissent.” To achieve these objectives and silence critics, Xi has been especially hostile to Western ideas of journalism and the normative American notion that robust and uninhibited criticism of government officials is an essential aspect of a free society. 

In the last decade, President Xi has taken an extraordinarily strong stand to control internet usage inside China, including Google, Wikipedia and Facebook, all the while advocating censorship as a concept of internet sovereignty.  

Fixated obsessively on controlling criticism, Xi recently said: “All the work by the party’s media must reflect the party’s will, safeguard the party’s authority, and safeguard the party’s unity. They must love the party, protect the party, and closely align themselves with the party leadership in thought, politics and action.” Sound familiar?

The online weaponizing of information by despots

China aspires to be a great cyber power. For example, Brookings authors Doshi, De La Bruyere, Picarsic and Ferguson wrote in their April 2021 article, “China As A Cyber Great Power: Beijing Two Voices in Telecommunications”: “The cornerstone of China’s internet policy, a critical step toward achieving the party’s centenary goals ... (is) to create “a community of common destiny in cyberspace.” 

Despots understand that if you weaponize information, you can retain power and destabilize democracies.    

The common aspect of the China internet policies — and as espoused in the recently-filed Trump lawsuit against social media giants — is that such tech companies should be treated as government actors, compelling access to all comers. Yet, our Supreme Court has long recognized that the government should not require access to private (as contrasted with governmental) informational or media platforms.  

The Trump lawsuit will soon be dismissed and remain a craven appeal to achieve government regulation of social media companies in the name of authorized fake news. While Trump way wish to mimic Xi and be “just like China,” our Constitution, laws and courts stand in the way. This is a cautionary tale for the Biden administration and the U.S. Congress as they up their attacks on Facebook and other social media companies for the spread of “pandemic misinformation” and other subjects they don’t like. No matter the administration, we shouldn’t be like China.

Jim Wagstaffe is a nationally known attorney and First Amendment expert. Jim Hartnett is an attorney and former member of the Naval Security Group.