Judge Doesn't See Teeth in Trump's Social Media Order

Twitter and Facebook -On Phone - logos of US social networking websites  -Getty -H 2020
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On the eve of the 2020 election as controversy continues to rage about the role of social media companies like Twitter and Facebook in policing misinformation, a California federal judge has rejected a bid to declare as unconstitutional Donald Trump's executive order targeting Section 230 of the Communication Decency Act. That's because, as U.S. District Court Judge William Orrick sees it, Trump's order merely "outlines a policy goal" and doesn't "restrict or regulate the platforms directly."

The lawsuit came from Rock the Vote, Voto Latino, Common Cause, Free Press and MapLight. These groups stepped forward as the Trump Administration made it a mission to prevent so-called "online censorship." According to the complaint, the plaintiffs aimed to ensure broad access to voting while Trump's order "frustrates their missions and will require them to divert scarce resources to combat misinformation."

As these groups see it, Trump had no business narrowing the scope of Section 230 protection and interfering with constitutionally protected speech.

Enacted in the mid-1990s, Section 230 aimed to solve the "Moderator's Dilemma." At the time, digital services worried that if they didn't curb abuse on their platforms, their services would cease to be hospitable forums. On the other hand, these same digital services also worried that if they took stops to curb objectionable content, they'd be held legally responsible for everything that users were posting. Section 230 provides an alternative to doing everything or nothing in the face of bad actors exploiting their platforms. It encourages interactive service providers to be as aggressive as they see fit by stating they wouldn't be treated as the "publisher" of information provided by someone else and that they also wouldn't be held liable for "any action voluntarily taken in good faith to restrict access to... material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable."

Section 230 immunities have become a football to kick around this political season. One side believes the statute provides the shield so that online companies don't do more to regulate hate speech.  The other side looks past the First Amendment and blames Section 230 for ideological repression. Trump, falling into the latter category of Section 230 objectors, promulgated an executive order urging federal agencies to propose rules that would narrow the civil immunities granted to online platforms. Rock the Vote and other groups moved for an injunction.

"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," notes Orrick in his order.

Orrick soon concludes that Rock the Vote and other groups haven't shown particularized injury to establish standing to maintain the suit. Although the judge says that threat of enforcement may suffice, he adds they haven't established that Trump's order "proscribes the platforms’ constitutionally protected speech or that the platforms face a credible threat of prosecution."

At the moment, the Federal Communications Commission has begun rule-making to "clarify" Section 230 protections, but even if such a move survives any change in FCC leadership following the 2020 election, Orrick writes that "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."

Perhaps even more notable given a lot of conversation in public policy circles about the FCC's questionable jurisdiction over Section 230 (sure to be a point for a future court challenge), Orrick adds, "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."

Finally, before denying an injunction and dismissing claims (with an opportunity for an amended complaint), Orrick notes that Trump's toothless order hasn't seemed to sway online platforms at least for now. The judge nods to how Twitter and Facebook have reacted to Trump's tweets about mail-in voting fraud as well as a New York Post story about Hunter Biden's laptop.  See the full order here.