The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
President Trump's § 230 Executive Order Doesn't Do Enough To Be Challengeable
From Judge William Orrick's opinion yesterday in Rock the Vote v. Trump (N.D. Cal.):
Executive Order No. 13,925 … announces a policy position expressing concern over allegedly biased content management by online platforms such as Twitter and Facebook and directs federal agencies to take various actions to attempt to combat this purported bias. These actions include filing a petition with the Federal Communications Commission ("FCC") to propose rules that would narrow the civil immunities granted to online platforms under section 230(c) of the Communications Decency Act; proposing legislation to Congress that would place additional regulations on platforms; and assessing whether agencies can reduce the amount of money they pay to social media companies for marketing and advertising services…..
Plaintiffs' novel First Amendment claims are a step removed from the typical kind. It is not that plaintiffs claim that their rights to free expression have been violated; instead, it is that the speech of on-line platforms like Twitter and Facebook have been chilled by the Executive Order, and as a result plaintiffs' missions are frustrated and they have had to divert resources to combat misinformation on social media. As discussed below, I conclude that plaintiffs have failed to adequately allege a concrete or personalized injury to themselves traceable to the Executive Order or to show that enjoining or invalidating the Order would redress their alleged injuries ….
To establish Article III standing, "a plaintiff must show (1) it has suffered an "injury in fact" that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." Plaintiffs fail to satisfy each of the three standing requirements ….
First, plaintiffs have failed to establish that they have suffered an injury in fact that is concrete and particularized.
The posture of this case is unusual—plaintiffs do not allege that the Executive Order directly regulates them or their First Amendment rights or that they themselves are the targets of retaliation. Instead, they allege that online platforms are engaged in constitutionally protected speech by curating and fact-checking misinformation online; that the Executive Order was issued in retaliation for the platforms' speech and threatens and punishes platforms for this speech; and that platforms are failing to correct misinformation, to the extent they otherwise would, out of fear of the Executive Order.
Plaintiffs state that they are personally injured as a result of the platforms' failure to check misinformation for two reasons: (1) they have been deprived of their right to receive fact-checking speech from the platforms; and (2) they have been forced to divert resources to combat misinformation that is unchecked by the platforms. Because they are not directly impacted or targeted by the Executive Order, both of their theories of standing require them to preliminarily show some injury to the platforms. This is a difficult showing to make without evidence from the platforms themselves, and plaintiffs have not made this showing.
Plaintiffs have failed to establish an injury-in-fact to the platforms—a first step to establishing injury to themselves—based on a threat of enforcement and a chilling of the platform's First Amendment speech. A plaintiff may establish injury-in-fact based on a threat of enforcement by alleging "an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder." While a plaintiff may establish injury-in-fact based on a government action's indirect "chilling" effect on First Amendment rights, she must still show that the government action is "regulatory, proscriptive, or compulsory in nature" and that she is "either presently or prospectively subject to the regulations, proscriptions, or compulsions" being challenged. Plaintiffs' allegations fail to meet this standard because they do not establish that the Executive Order proscribes the platforms' constitutionally protected speech or that the platforms face a credible threat of prosecution.
The Executive Order does not directly regulate or restrict the speech of online platforms. Instead, it outlines a policy goal of promoting unbiased content management on the internet and orders executive departments and agencies to take various steps that purportedly aim to further this goal. These steps include petitioning the FCC for a rule that might narrow the scope of section 230(c) immunity, proposing legislation that would place additional regulations on online platforms, and encouraging the FTC to bring claims against platforms for deceptive practices.
None of these actions proscribe any constitutional right because they do not restrict or regulate the platforms directly; they are simply steps that may or may not lead to additional regulations, restrictions, or liability at some uncertain point in the future, largely dependent on the actions of independent agencies and branches of government. Any potential enforcement based on these possible future regulations is far too speculative to give rise to a concrete or particularized injury at this point in time. See Laird v Tatum (1972) (noting that a plaintiff's fear that an "agency might in the future take some other and additional action detrimental to [plaintiff]" was not enough to establish injury-in-fact).
At the October 21, 2020 hearing, plaintiffs argued that the Executive Order's provisions directing agencies to interpret section 230(c) in line with the Executive Order and to assess their ad spending on social media were immediate threats sufficient to establish injury-in-fact. I disagree. Section 230(c) provides certain immunities in civil litigation. Executive agencies do not have a formal role in interpreting or enforcing section 230(c), making it unclear how these agencies' internal interpretations of section 230(c) would concretely impact platforms.
Plaintiffs also allege that the Justice Department plans to submit amicus briefs promoting the Executive Order's interpretation of section 230(c) in civil litigation matters, but this is not a concrete or immediate threat. It would remain up to the relevant presiding courts to determine whether to adopt such an interpretation in any particular case.
As to ad spending, while "a loss of funds promised under federal law[] satisfies Article III's standing requirement," the facts alleged here are too vague to establish injury-in-fact. It is not clear how much money, if any, federal agencies spend on social media advertising and, if so, on which platforms. Nor is it clear whether such spending is "promised under federal law" or part of more discretionary agency spending ….
Even if plaintiffs could establish an injury-in-fact to the platforms, they separately cannot show any personal injury traceable to the Executive Order because they have failed to demonstrate that platform speech has been "chilled" or curbed in any way. Where "a plaintiff's asserted injury arises from the government's allegedly unlawful regulation … of someone else, … causation and redressability ordinarily hinge on the response of the regulated (or regulable) third party." When necessary elements of standing "depend[] on the unfettered choices made by independent actors not before the courts and whose broad and legitimate discretion the courts cannot presume either to control or predict" it becomes the plaintiff's burden "to adduce facts showing that those choices have been or will be made in such manner as to produce causation and permit redressability of injury."
Plaintiffs assert that, as a result of the Executive Order, platforms like Twitter have declined to fact-check or correct misinformation on their platforms, which has harmed plaintiffs by (1) depriving them of such speech; and (2) forcing them to spend resources correcting the misinformation themselves. But they have failed to allege facts to support their speculation that the Executive Order has depressed platforms' content moderation activities. Judicially noticeable documents further undermine such a conclusion.
The only facts plaintiffs allege to demonstrate that the Executive Order has stifled planforms' fact-checking activities are: (1) Twitter has not fact checked several of the president's tweets about alleged mail-in voting fraud, which were posted after the Executive Order was issued; (2) Twitter placed a notice on an August 23, 2020 tweet in which the President called mail drop boxes "[a] big fraud"—noting that the tweet "violated the Twitter Rules about civic and election integrity"—but did not include a fact-check link on the tweet; and (3) On October 15, 2020, Twitter reversed a decision to completely block users from sharing a New York Post article regarding Hunter Biden and announced that it would simply place a notice on similar content in the future. These allegations are insufficient to establish causation.
Plaintiffs' own allegations indicate that, prior to the existence of the Executive Order, Twitter only fact-checked President Trump's statements about election fraud once—fact-checking just one out of four tweets in the Spring that plaintiffs allege were false or misleading. Twitter's failure to fact check certain tweets after the Order was issued appears consistent with Twitter's general practice, not a response to the Order.
Similarly, Twitter's decision to place a notice on President Trump's August 23, 2020 tweet and tweets related to the New York Post Hunter Biden story, rather than including a fact-check link or blocking the story entirely, does not plausibly indicate a reduction in its fact-checking activities but a commitment to continue moderating the President's content at its discretion. This conclusion is supported by additional public and judicially noticeable tweets indicating that Twitter has placed fact-check notices and links on several other election-related tweets from the President in the last few weeks.
Plaintiffs have also submitted supplemental information indicating that Facebook limited distribution of the New York Post's Hunter Biden story on the Facebook platform. As plaintiffs have not alleged any facts about Facebook's pre-Executive Order fact-checking behavior, this single instance of Facebook engaging in fact-checking speech further undermines any conclusion that the Executive Order has reduced or chilled platform moderation activities….