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Free Speech

President Trump's § 230 Executive Order Doesn't Do Enough To Be Challengeable


So Judge Trevor N. McFadden held Friday, in Center for Democracy & Technology v. Trump (D.D.C.) (see also a similar earlier decision, Rock the Vote v. Trump (N.D. Cal.)).

[The Executive Order] is most notable at this point for what it does not do. It imposes no obligation on CDT (or any other private party), but it merely directs government officials to take preliminary steps towards possible lawmaking. CDT's claimed injury is not concrete or imminent and is thus insufficient to establish Article III standing. Even if CDT managed to clear the standing hurdle, it faces redressability and ripeness problems too….

Order 13,925 expresses the Trump Administration's policy that "[f]ree speech is the bedrock of American democracy" and that "large online platforms, such as Twitter and Facebook, as the critical means of promoting the free flow of speech and ideas today, should not restrict protected speech." The Order asserts that "[o]nline platforms are engaging in selective censorship." It explains that § 230(c) of the Communications Decency Act—which, as relevant here, provides immunity from liability to online platforms for restricting some content on their sites—should be clarified.

Some of Order 13,925's provisions implicate federal agencies. For example, the Order directs the Secretary of Commerce to "file a petition for rulemaking with the Federal Communications Commission (FCC) requesting that the FCC expeditiously propose regulations to clarify" the scope of § 230(c). It also instructs the Federal Trade Commission ("FTC") to "consider taking action, as appropriate and consistent with applicable law, to prohibit unfair or deceptive acts or practices in or affecting commerce," to "consider whether complaints [about online platform censorship] allege violations of law," and to "consider developing a report describing such complaints."

Order 13,925 includes other directives aimed at government officials. It instructs "[t]he head of each executive department and agency" to "review its agency's Federal spending on advertising and marketing paid to online platforms" and then requires the Department of Justice to "assess whether any online platforms are problematic vehicles for government speech due to viewpoint discrimination, deception to consumers, or other bad practices." The Order also charges the Attorney General with "establish[ing] a working group regarding the potential enforcement of State statutes that prohibit online platforms from engaging in unfair or deceptive acts or practices" and "develop[ing] a proposal for Federal legislation that would be useful to promote the policy objectives of this order." …

"To establish Article III standing, an injury must be concrete, particularized, and actual or imminent; fairly traceable to the challenged action; and redressable by a favorable ruling." Organizations, like individuals, must satisfy these elements….

First, concreteness…. CDT has not met its burden to show an injury to its interests…. CDT has not alleged that Order 13,925 has "perceptibly impaired" its "ability to provide services." It claims that because of the Order it will have to "devote substantial resources to": "participating in the planned FCC rulemaking proceeding," "monitoring federal agencies' reports," "tracking any FTC action," "participating in any proceedings that the Commission institutes," and "engaging with federal and state policymakers."

This is plainly deficient. Circuit precedent is "clear that an organization's use of resources for … advocacy is not sufficient to give rise to an Article III injury," "whether the advocacy takes place through litigation or administrative proceedings." CDT's alleged injury—resources spent monitoring federal agencies, participating in their proceedings, and working with lawmakers—is one to its advocacy work, which is not a cognizable injury….

Additionally, CDT's allegations fail to show Article III standing because the injury it claims is not "actual or imminent" but "conjectural or hypothetical." While "[a]n allegation of future injury may suffice if the threatened injury is certainly impending, or there is a substantial risk that the harm will occur," "allegations of possible future injury are not sufficient."

Recall that Order 13,925 does not apply to private parties (including CDT). It only sets a course of government processes into motion. Cf. Rock the Vote v. Trump, No. 20-cv-06021-WHO, 2020 WL 6342927, at (N.D. Cal. Oct. 29, 2020) ("None of these actions [directed by Order 13,925] 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."). For example, it directs various government actors to "file a petition for rulemaking … requesting that the FCC expeditiously propose regulations," to "review … Federal spending," to "consider taking action," to "consider developing a report," to "establish a working group," and to "develop a proposal for Federal legislation."

CDT is correct that it need not wait for an injury to occur to sue. But a future injury cannot be "speculative." It must be "certainly impending" or there must be a "substantial risk" that it will occur.

To be sure, the government might issue regulations that CDT does not like. But it is just as possible that it will not. "Article III standing requires more than the possibility of potentially adverse regulation," put into place by third-party actors not before the Court….

CDT seems to acknowledge as much, arguing that "[r]egardless of how the FTC or FCC ultimately decide to exercise their discretion in response to the Order's directives, CDT is injured by the ongoing expenditure of resources to combat" the Order. But that argument runs headlong into the Supreme Court's decision in Clapper, in which the Court rejected as "unavailing" the plaintiffs' "contention that they have standing because they incurred certain costs as a reasonable reaction to a risk of harm." Ditto here. CDT "cannot manufacture standing merely by inflicting harm on [itself] based on [its] fears of hypothetical future harm that is not certainly impending." …

CDT's failure to satisfy Article III's standing requirement is enough to dismiss its complaint under Rule 12(b)(1). But even if it had satisfied Article III, its claim would be prudentially unripe…. The ripeness doctrine "prevent[s] the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies" and "protect[s] the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties." "A claim is not ripe for adjudication if it rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all." …

CDT's claim is unripe. First, the issues are not fit for judicial decision. CDT contends that its First Amendment claim is ripe because its "injuries flow from the Order itself" in the form of a threatened "chill on online speakers and content hosts.". But Order 13,925 places no obligations on any private party. It merely directs government officials to take initial steps in government processes that might (but may not) eventually lead to law governing private parties….

The parties will also not suffer hardship as a result of any delayed consideration of CDT's claim. CDT, as well as the third-party online platforms that it contends are harmed, are under no obligation to take (or not take) any action as a result of Order 13,925. There could be legal consequences flowing from Order 13,925 down the road: the FCC could issue regulations adopting the Order's interpretation of the "narrow purpose" of § 230; the FTC might "prohibit unfair or deceptive acts or practices" of some online platforms; or the Attorney General might "propos[e]" federal legislation that eventually becomes law. But it is not the Court's role to decide a case based on such hypotheticals….

There's more, for which you can read the opinion. Disclosure: Some of my colleagues at Mayer Brown LLP were counsel for the Center for Democracy & Technology.