Constitutional Challenge to Trump’s Anti-230 EO Fails–Rock the Vote v. Trump


This is one of two lawsuits challenging the constitutionality of Trump’s anti-Section 230 executive order from May. Because the EO said a lot (mostly lies) but did very little, the main question is whether anyone has the requisite standing. The court summarizes the standing difficulties in this lawsuit:

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.

Injury-in-fact. The plaintiffs can’t show that the Internet services have been injured 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.” This is because the EO didn’t really do anything:

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….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

The EO tells other parts of the federal executive branch how to interpret Section 230, but the court says that an EO can’t do this: “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.”

The fact the EO told agencies to review their ad spend also is inconsequential, because “plaintiffs have not alleged any credible facts regarding the ad spending social media companies may or may not receive from federal agencies and have not identified any concrete steps that have been taken to withhold such potential spending.”

Lack of Causation. Even if the Internet services have suffered an injury-in-fact, the plaintiffs didn’t show how that causes them injury. In particular, the plaintiffs haven’t shown that the EO actually changed the services’ content moderation practices. Instead, “Twitter has placed fact-check notices and links on several other election-related tweets from the President in the last few weeks.”

Redressability. Because the plaintiffs didn’t show changes to content moderation practices, an injunction wouldn’t change anything. And the FCC and DOJ are already working on burning down Section 230 as the EO asked them to do, which the court won’t stop.

Implications. Trump’s EO was a terrible attempt at governance. Its objectives were to rally Trump’s voters, work the refs (which this lawsuit targets, but it’s unclear how the refs responded to the threat), and distract from the many other dumpster fire problems that Trump and his administration have personally caused. It accomplished all of those goals on the day it was released, even if no one ever actually does anything in response to the EO. Furthermore, the EO has helped coordinate other kakistocrats in their efforts to burn down Section 230, such as the moves by the FCC and DOJ to contribute to the propaganda about Section 230 and use taxpayer dollars to advance Trump’s reelection campaign narratives. So long as Congress isn’t disciplining the Trump administration at all, there is one–and perhaps only one–proven way for us to signal how we feel about garbage government efforts like Trump’s EO: VOTE OUT TRUMP AND HIS CONGRESSIONAL ENABLER CLOWNS. I hope we will make greater progress towards “tikkun olam” starting Nov. 4.

JARGON WATCH: This is one of only 8 cases in Westlaw’s caselaw database to use the phrase “content moderation.” Another just came out on Tuesday: U.S. v. Lacey, 2020 WL 6290489 (D. Ariz. Oct. 27, 2020). The other 6: YYGM v. Redbubble, Prager U. v. Google, Davison v. Facebook, US v. BazaarVoice, and US v. Sedelsky (2 opinions).

Case citation: Rock the Vote v. Trump, 2020 WL 6342927 (N.D. Cal. Oct. 29, 2020)