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Trump Battles Facebook, Twitter Without Aid of Free Speech Pros

July 7, 2021, 10:40 PM

Former President Donald Trump’s free speech fight with Twitter, Facebook, and Google rests on a pair of trial lawyers best known for their work in major personal injury cases—not First Amendment disputes.

John P. Coale, a litigator who has taken on the tobacco and gun industries, is leading the team that filed three separate First Amendment lawsuits against the companies Wednesday. He’s joined by John Q. Kelly, a Connecticut litigator who successfully sued O.J. Simpson for wrongful death on behalf of the estate of Nicole Brown Simpson.

Coale and Kelly bring decades of experience in high-profile court cases, but they haven’t previously focused on constitutional law and the kinds of free speech questions raised in the new suits. Legal scholars are already dismissing Trump’s lawsuits, which advance the unusual argument that social media companies are de facto government actors subject to First Amendment restraints on limiting free speech.

“Public relations seems a greater motivation than actual legal analysis,” Martha Minow, a Harvard Law professor who is among several constitutional law scholars that have questioned the argument, told Bloomberg Law.

The suits, which Trump is seeking to bring as class actions, allege the tech companies are violating the First Amendment by using their platforms “to regulate the content of speech over a vast swath of the internet.” They ask the court to strike down Section 230 of the 1996 Communications Decency Act, which shields social media outfits from liability for user-posted content.

Constitutional law scholar Erwin Chemerinsky called the suits “frivolous.”

“Facebook, Google, and Twitter are private entities and the First Amendment does not apply to them,” Chemerinsky, dean of the University of California Berkeley School of Law, told Bloomberg Law. “This is not an open question.”

Minow said via email that Section 230 serves an important purpose in keeping government out of debates over private speech.

“Even if the legal hurdles to treating private entities as government actors were overcome, the result would put the courts in the middle of the millions of content moderation decisions made each week—a worrisome consequence on practical and values grounds as well as legal ones.”

Trump Reaches Outside Orbit

Coale and Kelly mark a departure for Trump, who has turned to an increasingly small group of attorneys for advice and representation in recent years. The lawyers didn’t immediately respond to requests for comment.

Coale, the husband of former Fox News host Greta Van Susteren, is known for his role in massive litigation against major tobacco companies that resulted in a $368 billion settlement in 1997.

He historically had leaned toward Democrats in political contributions, including $2,800 to Democratic Rep. Cheri Bustos (Ill.) last year and $30,000 to Democratic PAC Generation Forward in 2015, according to Federal Election Commission records. But Coale also reportedly helped former Alaska Gov. Sarah Palin form a political action committee and in 2018 gave $20,000 to the Maryland Republican State Central Committee, among other recent GOP donations.

Kelly’s litigation experience centers on civil wrongful death and related cases. He was the lead attorney in the the 1997 case against Simpson, the football star who was acquitted on murder charges over the death of his ex-wife and Ronald Goldman but ordered to pay more than $33 million in the civil lawsuit.

Kelly also represented Beth Holloway related to the disappearance of her daughter, Natalee Holloway, while on spring break in Aruba. He represented the estate of Kathleen Savio in a wrongful death suit against Savio’s husband, Illinois police officer Drew Peterson.

The pair is joined by former Trump administration official Carlos Trujillo, who served as U.S. Permanent Representative to the Organization of American States.

Trujillo was a state lawmaker in Florida for eight years before joining the administration. He founded South Florida law firm Trujillo, Vargas, Gonzalez and Hevia, before running for office.

Other lawyers on the team include Michael Jones of Ivey, Barnum & O’Mara, and Andrew Vargas, Louis Gonzalez, Michael Baldwin, and Rene Delombard, all of whom are part of Vargas Gonzalez Baldwin Delombard.

Tech ‘Villains’

The lawsuits come as some of Trump’s most vocal supporters in Congress are also taking aim at large tech companies.

“Big Tech are the latest villains in the greatest story ever told: The American story,” Trump said in a statement announcing the lawsuits. “They assault our First Amendment rights, stoke the flames of division, and relentlessly pursue the censorship and cancellation of anyone who disagrees with them. Now, we are taking the fight to them on behalf of ALL Americans.”

House Republicans led by Rep. Jim Jordan (Ohio) released an “Agenda for Taking on Big Tech” on Wednesday that argues for making it easier to sue companies like Twitter, Facebook, and Google-owned YouTube.

“Big Tech’s Bad,” Rep. Jordan wrote in a June Tweet “Don’t give them more power. Break them up.”

The Trump lawsuits are backed by the America First Policy Institute, an advocacy group whose leaders include Larry Kudlow, Trump’s White House economic adviser, and Linda McMahon, who ran the Small Business Administration under the former president.

Brooke Rollins, who was acting domestic policy council chief during the final months of the Trump administration, former energy secretary Rick Perry, and national intelligence director John Ratcliffe are also among the Trump alumni working for the group.

The case is Trump v. Twitter Inc., S.D. Fla., No. 21-cv-22441, 7/7/21.

To contact the reporters on this story: Ruiqi Chen in Washington, D.C. at rchen@bloombergindustry.com; Chris Opfer in New York at copfer@bloomberglaw.com

To contact the editors responsible for this story: Rebekah Mintzer at rmintzer@bloomberglaw.com; Andrew Childers at achilders@bloomberglaw.com