Byron P. answered • 07/15/21
LAW SCHOOL AND BAR EXAM TUTORING WITH REMARKABLE EXAM TECHNIQUES
(1) Free Speech and State Actors:
> Former President Trump claims a violation of his Free Speech rights by the denial by private companies of his access to social media.
> Generally, the First Amendment [Free Speech clause] only applies to restrictions on Speech imposed by Federal and State governments (and their respective units such as Administrative Agencies which develop restrictive rules & regulations in much the same way as the legislatures; governmental units include Municipalities, Counties, and Regional Authorities).
Who can violate a party's Free Speech Rights?
> Typically, non-government actors have the right to serve or deny access to service to any private companies and individuals it so chooses. Contrast Masterpiece Cakeshop at 584 U.S.___(2018) [SC No. 16-111]. Nor is 42 USC 1983 the exception, as the statute only addresses those who act "under color of law".
> Federal actors (departments, agencies, and their officials) are similarly constrained, but under a different case- Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotic, 403 U.S. 388 (1971). A suit predicated on Bivens is often referred to as a "Bivens Action".
> State officials are not permitted to violate fundamental US Constitutional Rights. Further, the courts will earmark State employees and independent contractors as "State Actors".
> The actions or omissions of private companies and individuals implicating the First Amendment are very limited. Individuals may become "State Actors" by accepting and taking on duties and responsibilities traditionally the province of "government" [it quacks like a duck so it must be a duck]. Questionable actions by private individuals may also be subject to Constitutional regulation- as State Actors- if they conspire or collude with government officials to violate a citizen's Constitutional Rights.
> Over many years now, the U.S. Supreme Court has been perplexed by the question of whether the Federal Constitution permits restraints by private parties on the Constitutional rights granted to U.S. residents. Rare incursions into this patch of brambles have been based on the Article 1 Commerce Clause. The Commerce Clause, in this context, is of unique interest because it is used to constitutionally regulate establishments by simply observing that virtually all establishments have fixtures and products that came from or through another state.
> There are also Federal and State Statutes and Regulations that penalize private non-state actors that provide accommodations to the public while discriminating against some by refusing food, lodging, or the like based on race, color, creed, or national origin.
*Stay tuned as the Supreme Court ponders its next move in this highly nuanced area of the Law.
(2) Civil Procedure (Class Actions):
> The Trump-Twitter action is styled a class action. Many have urged that the Trump-Twitter case may not be framed in this manner because the class cannot be rationally identified and, if it could, class members do not share a common nucleus of plausible facts, a common chain of causation, common laws, common applications of laws to facts, common injuries, or indistinguishable justifications for denial of access.
> The Federal and State Rules of Civil Procedure permit the division of the "Master" class into boiling cauldrons of subsumed classes.
> Theoretically, one subclass might be denied access for posting unsupported factual allegations while another subclass might be composed of those who were denied access because of excessive spam. A third subclass might be populated by those that are denied service because they regularly post prohibited adult content.
> Consider a formulation based on subclasses of those temporarily denied access and those permanently banned. Perhaps there could even be a subclass of those who appealed their bans within the confines of the social media enterprise (and pursuant to its draconian "Terms of Service") but failed in the attempt.
> Others doubt whether Trump can, under any circumstances, be an "Adequate Representative" of the Class. In which subclass might Trump belong? And, who will be the named adequate representative on behalf of other subclasses?
> Perhaps most importantly, can Trump be a representative of the Master class or any subclass since his standing (injury in fact) differs so substantially from other possible class members.
> Would he be a subclass of one?
> No other putative Master class member is a former President or seeks to spread the word that he is the titular chief of the Republican Party and will be the President, once again, in 2024?
*Diligently follow the news to see which of the above views will be rejected; or whether Trump will be able to jump all the daunting legal hurdles he surely faces.
** For my Law Students and Bar Applicants: The above disputations again underscore that due consideration of current events will solidify the law you are learning (by making it your own), with nary the slightest glance toward the poisonousness of rote memorization. Current events are a valuable mnemonic.
