Jed Rubinfeld, WSJ, Jan. 4, 2023
Elon Musk says the Twitter Files prove a profound and systematic violation of the First Amendment. Commentators on the left insist they’re a “nothingburger.” This dispute ought to be resolved in court. But how?
The wrong way would be more First Amendment lawsuits against Twitter by targets of censorship such as journalist Alex Berenson. Mr. Berenson was suspended in 2021 for disputing public-health orthodoxy about Covid vaccines. Although Twitter reinstated Mr. Berenson’s account before Mr. Musk took over the company, a judge dismissed the First Amendment claim without even allowing discovery, declaring it “implausible” that the federal government was heavily involved in the company’s censorship decisions. That assumption was wrong. We now know that federal agencies were deeply enmeshed in Twitter’s censorship, from high-level policy making to targeting specific posts.
But because of two recent developments, there are no real remedies available to a plaintiff in such a case. First, a Supreme Court decision, Egbert v. Boule (2022), virtually guarantees that a plaintiff in these circumstances couldn’t recover monetary damages. Second, Mr. Musk’s takeover of Twitter precludes injunctive relief. If the company no longer works with federal agents to censor speech and is welcoming back the past targets of such censorship, there’s nothing to enjoin. ….SOURCE