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.

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  1. Section 230 needs to be reformed not stripped. Specifically get rid of the censorship protections then it would be good.

    1. It has never been against the law for private entities to engage in what you mistakenly refer to as “censorship”, so in what manner would section 230 provide protection? From other laws that don’t exist?

      Perhaps you could elaborate on what you mean by “censorship protection”?

      1. God, I hope you’re not an attorney IRL.

        1. He’s probably a pretty “good” one, actually. Attorneys in general spend truckloads of money on education and practice for years to hone to perfection the art of acting dumb.

      2. Section 230 let’s confers liability protection to online platforms decions to censor or not censor, as they see fit. That liability protection was conferred because it was thought that free and open discourse online without fear of liability for the platform owner would provide the also benefit the public too.

        If congress thinks the public is not deriving the promised benefit of free and open discourse, then it’s certainly up to them if they want to withdraw the benefit they conferred on the platform operators, or possibly change the terms of the liability exemption.

        1. They do censor, because they fear removal of those protections, and subsequent collapse of stock prices.

          It is no coincidence this election involved a host of candidates, each trying to outdo each other in how to hurt the tech giants for not stopping harrassment, with the loudest cries coming to silence the harrassing tweets of their political opponents. Which was done.

          This is censorship, because the people running these companies are not doing it out of a sense of civic duty, but for fear of being cost billions of dollars.

        2. “as they see fit.”

          Funny, that’s not what it actually says: “any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable”

          What if they see fit to censor in bad faith?

          1. I think you’d have a hard time proving in court that removing material that is clearly, demonstrably false because the defendant feels that it is in the interest of public a service to curtail the spread of misinformation is acting in “bad faith”.

            But, good luck with that.

            1. The material that was removed was not all “clearly, demonstrably false”. Some of it was, in fact, clearly, demonstrably true.

              Despite that, the “bad faith” hurdle is quite high. Even removing demonstrably true material does not necessarily meet it. I think that’s as it should be but I do understand why folks like Brett could reasonably disagree and argue for a lower threshold of “bad faith”. You, however, are not helping things by implying that only false information was removed.

      3. For him to so opine, he would have to have some idea of what § 230 actually says, which he clearly does not. He would then have to have some conception of what the First Amendment actually says, which he clearly does not.

          1. I’m pretty sure that David was suggesting that AmosArch wouldn’t be able to answer your questions because he, not you, doesn’t understand section 230.

          2. Mr Clem: Matthew Slyfield is correct; I was impugning AmosArch’s knowledge, not yours.

      4. If you actually read the law, Part (1) is great. Platforms should not be held accountable simply because users said something bad.

        Part (2) is direct protection of censorship and not so great. Since progs have established that it is a horrific violation of human rights if 1/10000000000000000000000000000000000000000×10^Graham’s Number bakers don’t bake a SSM cake, it wouldn’t be too out of the way to hold that oligarchies that completely control the ability of a person to have a voice on the internet cannot just up and deplatform someone whenever they feel like it.

        1. Who “completely control(s) the ability of a person to have a voice on the internet”?

          Facebook, twitter, etc. do not completely control the internet by any stretch of the imagination. Maybe they would like to, but they don’t.

          There are many thousands of places on the internet to voice your opinion, and you always have the ability to run your own server.

        2. Pretty funny to see someone complaining on a blog hosted by none of the major social media platforms that somehow the big social media platforms “completely control the ability of a person to have a voice on the internet”.

  2. Hmm, I wonder if some of the commenters will suggest sanctioning Prof. volokh’s colleagues for bringing a frivolous lawsuit. I mean, the court says that they don’t even have a cognizable injury.

    1. LOL. Popping the popcorn as we speak!

    2. Get back to me when the plaintiffs have filed and lost this suit over 50 times in various courts. Then we can discuss the frivolity or lack thereof.

      1. Oh, and I’m not really sure if it counts as a loss if you sue to have an executive order overturned and the court states on the record that the EO has no actual practical effect .

        What the court said, in essence, is this EO doesn’t apply to you, so go ahead and ignore it. It’s meaningless as far as you are concerned.

      2. What a fun rhetorical trick to lump a whole bunch of plaintiffs filing a whole bunch of suits in a whole bunch of courts about a whole bunch of different issues as “the plaintiffs” and “this suit.” We’re gonna apply that standard even-handedly from here on out, right?

        1. Who were the plaintiffs? Anyone the Guliani team or the Sydney Powell team could find to hang their complaint on. Plus Texas and a bunch of state’s attorneys general in the tank for Trump.

          Did I miss anyone?

          It’s the same song, played over and over again. And rejected at a rate of 1 for 60.

          Don’t kid yourself that this was “a whole bunch of plaintiffs filing a whole bunch of suits in a whole bunch of courts about a whole bunch of different issues”.

          Sane entities with competent lawyers will not file additional suits seeking to overturn this EO as long as the status quo stands. Not so much with the election clownshow lawsuits.

          1. Don’t kid yourself that this was “a whole bunch of plaintiffs filing a whole bunch of suits in a whole bunch of courts about a whole bunch of different issues”.

            Glory be — there’s a list right here. Assembled by Wikipedia editors I’m very comfortable are not all in the tank for Trump, and containing — wait for it — “a whole bunch of plaintiffs filing a whole bunch of suits in a whole bunch of courts about a whole bunch of different issues.”

            If you’re feeling the need to pull all of the complaints and explain to the class your theory about how they’re in fact all the same parties and covering all the same issues, knock yourself out. But I think I’ll trust my lying eyes on this one.

            1. Point taken.

              There were a lot more clowns in that little car than I expected.

    3. Frivolous litigation is the use of legal processes with apparent disregard for the merit of one’s own arguments. It includes presenting an argument with reason to know that it would certainly fail, or acting without a basic level of diligence in researching the relevant law and facts.

      Do you think that’s what happened here?

      1. Why not cite Rule 11, which dictates that any complaint represents to the Court that:

        (1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;

        (2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;

        (3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery;

        It is generally understood that this incorporates an objective standard as to what is or is not warranted by existing law.

        On the merits here, if you think about it, the complaint is extraordinary. All that happened is that the president said to review the relevant regulations as they relate to a statute and see if a change is warranted. An Article III court is seriously going to enjoin that? Administrative agencies can be barred from even considering whether their current regulations are appropriate in light of the statutory law and current realities? I have a hard time believing that any lawyers with minimal competence could even contemplate that.

        What if a Congressman says, “Section 230 of the CDA is not working. We need to reform it, or maybe abolish it. Let’s hold hearings on that and decide what changes, if any, to make to the current law.”

        Can a private entity sue to enjoin a Congressional committee from holding such hearings? I would have thought that anything but a resounding NO is frivolous.

        1. I have a question about rule 11. How does a judge make a determination on (1) above in actual practice? Just curious about that.

          1. Someone has to make a motion for sanctions under Rule 11. Or the judge can make his/her own motion, called sua sponte.

  3. I feel sorry for the poor government lawyers who had to say in their briefs and oral argument that the order they were defending was meaningless and toothless without being so obvious about it that they would piss off their clients.

    1. You understand neither the judge’s ruling nor the order. All the order said was to review the regulations in light of the law and the new phenomenum of censorship. That an agency looks into something does not yet mean anything will change, nor what the change will be. A court cannot yet rule on somethign that has not happened, and we don’t even know what the end result will be.

      But it is not “meaningless” because it is the first step in determining what changes, if any, should be made. This is especially important because the Trump administration has been tripped up many times for acting to quickly and not following the Administrative Procedures Act.

  4. I hope Bite Me & Her Arse enjoy having every one of their EOs litigated…

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