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Op-Ed: If you care about the First Amendment, this class action is for you

Last week, White House press secretary Jen Psaki candidly stated that President Joe Biden’s administration was “making sure social media platforms are aware of the latest narratives…” of what the government deems to be “misinformation.” This statement and accompanying comments from President Biden and Surgeon General Vivek Murthy underscore the very crux of the class action lawsuit former President Donald J. Trump and other censored Americans recently brought against Big Tech. Psaki also elaborated that the Biden administration works to “create robust enforcement strategies that bridge their [Big Tech] properties and provide transparency about rules.” This acknowledgment of the government’s role and involvement in choosing which posts Big Tech should censor goes to the factual assertions President Trump has made in the class action lawsuit.

When I stood with President Trump to unveil the America First Policy Institute’s support of his class action lawsuit against Facebook, Twitter, and YouTube, many on the left quickly dismissed the suit by saying these are private companies and not government actors. They failed to understand that Big Tech’s actions and government involvement have evolved recently to the point where the government empowers Big Tech to violate our rights. As former President Trump stated upon filing the lawsuit, “If they can do it to me, they can do it to ANYONE — and in fact, that is exactly what is happening.” It’s no wonder then that Harvard Law Professor Alan Dershowitz has stated, “This is the most important First Amendment case of the 21st Century.” Our government cannot sit idly by while Big Tech tramples on our freedoms.

Psaki’s statements further illustrate the Biden administration’s work with Facebook and the other platforms to jointly determine what constitutes misinformation and then censor individuals’ viewpoints. These coordinated actions undercut any remaining pretense that these companies are independent actors. Again, to quote Psaki when she explained that the White House had “increased disinformation research and tracking within the Surgeon General’s office. We’re flagging problematic posts for Facebook that spread disinformation.” This is collusion, and these Big Tech giants can no longer be allowed to escape the First Amendment. Collaboration between the current administration and social media giants is further evidenced by Psaki’s comments if you are removed by one platform, you should be removed by all. Where is the “private company” in this statement?

And that should concern every American who values free speech. This isn’t a partisan issue. Americans of every political stripe should be gravely concerned about the precedent this sets for curtailing our freedoms.

The Constitution constrains Congress from passing laws that would abridge the First Amendment rights of Americans. And when Big Tech companies serve as state actors, an arm of the government, they must be treated as the government is. This means being bound to the same First Amendment restraints that the Constitution applies to the rest of government.

Unlike most other private corporations, Facebook and other tech giants are dependent on protections from the federal government. Section 230 of the Communications Decency Act gives Internet companies immunity from many types of lawsuits if they agree to moderate their content in a neutral manner. Initially passed into law in 1996 when these social media giants didn’t even exist, Congress intended Section 230 to protect children by allowing Internet companies to take down information that exploited them.

There is nothing “neutral” about Big Tech’s actions to censor Americans with whom the liberal elites disagree, especially when this censorship occurs at the direction of the government. Just ask the thousands of censored Americans who had their social media accounts flagged for misinformation when merely sharing news stories or expressing their opinions. In the short two weeks since the America First Policy Institute launched, we have received over 50,000 stories from Americans eager to share their experiences about being arbitrarily canceled by Big Tech. For all Americans who believe in the First Amendment: This lawsuit is for YOU.

Pam Bondi serves as the Chairman of the Constitutional Litigation Partnership at the America First Policy Institute. She previously served as the 37th Florida attorney general from 2011 to 2019 and was the first woman elected to the office.

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