Trump Evades First Amendment Suit Over Social Media Order

Donald Trump
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The Center for Democracy & Technology doesn't have standing to sue President Donald Trump over his executive order that targets social media sites for the alleged censorship of conservative voices, a D.C. federal judge has ruled.

The CDT in June sued the Trump administration over his May 28 executive order on online censorship. Trump's order, which he issued shortly after Twitter started flagging his tweets for misinformation, says social media is the modern day equivalent of a public square and it's "fundamentally un-American and anti-democratic" to let powerful social media companies "censor" opinions.

CDT argues the order implicates the constitutionally-protected freedom of speech. "First, the Order is plainly retaliatory: It attacks a private company, Twitter, for exercising its First Amendment right to comment on the President’s statements," states the complaint. "Second, and more fundamentally, the Order seeks to curtail and chill the constitutionally protected speech of all online platforms and individuals — by demonstrating the willingness to use government authority to retaliate against those who criticize the government."

U.S. District Judge Trevor McFadden isn't convinced, finding not only that CDT lacks standing but also that its complaint isn't ripe, and on Friday he granted Trump's motion to dismiss the complaint.

McFadden, a Trump-appointee who took the bench in 2017, seems perplexed that the CDT would argue the order injures its interests. "The Order expresses 'the policy of the United States to foster clear ground rules promoting free and open debate on the internet. ... CDT asserts a similar mission — to 'advocate in favor of First Amendment protection for speech on the Internet.'"

He continues, with no mention of CDT's argument that the president only alleges conservative and Republican voices are being censored, "One would think that CDT would applaud the President’s desire to prevent online censorship. But no matter. The Court will take CDT at its word and assume that Order 13,925 directly conflicts with its interests."

McFadden finds that D.C. Circuit precedent holds use of resources for advocacy isn't sufficient injury to establish and says CDT "has shown that it is engaging in business as usual." He also finds that any alleged injury is merely hypothetical because the order only directs government officials to "take preliminary steps towards possible lawmaking."

"To be sure, the government might issue regulations that CDT does not like," McFadden writes in the decision, which is posted in full below. "But it is just as possible that it will not. ... If such speculative future government action could support an injury in fact, it is hard to imagine what would not satisfy that requirement."

He also finds that because CDT hasn't shown its own injury it's not able to assert standing on behalf of third-parties. "Online behemoths like Twitter and Facebook command armies of attorneys and lobbyists," McFadden adds. "They do not need CDT to carry their water for them."

McFadden says that he lacks the authority to issue injunctive or declaratory relief against the president and that, even if he could, it wouldn't affect any rules or regulations the FCC or Congress may adopt because of Trump's order, and he finds CDT's claim is unripe because the government hasn't actually taken any action in response to the order yet.

A group of voters' rights advocacy organizations earlier this year filed a suit with similar First Amendment concerns, and a California federal judge also found they lacked standing to sue.