The U.S. Department of Justice Defends Section 230’s Constitutionality

The DOJ stirred up some chatter when it announced that it was defending Section 230’s constitutionality in Trump’s lawsuits against the social media services. I wasn’t sure why so many people were buzzing about the move. The DOJ had previously defended 230’s constitutionality before (in the Newman and Divino cases), and honestly I’ve never seen any credible argument against Section 230’s constitutionality. The DOJ has now filed its briefs in the Trump v. Twitter and Trump v. YouTube cases (I assume the DOJ will file a similar brief in the Facebook case now that it’s transferred to the Northern District of California), and the briefs lay out the constitutionality case clearly and succinctly. (I’m quoting the Twitter brief; the YouTube one is quite similar).

First, the DOJ observes that courts have already plowed this ground:

Courts routinely reject constitutional challenges to Section 230(c). See, e.g., Green v. AOL, 318 F.3d 465, 472 (3d Cir. 2003); Winter v. Facebook, Inc., 2021 U.S. Dist. LEXIS 224836, at *12-13 (E.D. Miss. Nov. 22, 2021); Lewis v. Google LLC, 461 F. Supp. 3d 938, 952-53 (N.D. Cal. 2020), aff’d, 851 F. App’x 723 (9th Cir. 2021); La’Tiejira v. Facebook, Inc., 272 F. Supp. 3d 981, 994-95 (S.D. Tex. 2017); Parker v. PayPal, Inc., 2017 U.S. Dist. LEXIS 130800, at *16-17 (E.D. Pa. Aug. 16, 2017).

A couple other possible citations: Richard v. Google and ADFI v. Lynch (the latter omission is a little curious because the DOJ definitely knows about this case since it was the defendant!).

Then, the DOJ summarizes:

Section 230(c) does not regulate Plaintiff’s speech. Instead, the statute establishes a content- and viewpoint-neutral rule prohibiting liability for certain conduct by providers of interactive computer services. Although Plaintiff’s Motion barely addresses his constitutional challenge to Section 230(c), Plaintiff appears to contend that Section 230(c) is unconstitutional because it allegedly “encourages” Twitter to “censor constitutionally protected speech.” But Section 230(c) does not mandate any action on the part of Twitter, which remains a private entity…While it is of course true that the statute shields providers from liability for choosing to exclude content from their platforms, it affords comparable protection to providers who are sued for allowing content to appear. It thereby allows those providers the freedom to decide whether to remove content on their online platforms without fear of liability

The brief also explains why two railroad cases, the Skinner and Hanson precedents, don’t apply. For example, “As courts in this district have already concluded, the federal regulations in Skinner bear no relationship to Section 230(c)” (cite to Divino).

In a footnote, the DOJ says: “The President has expressed support for reforms of Section 230(c)—but whether the statute is constitutional as applied to the facts presented here is distinct from the question whether Section 230(c) remains good policy.” Yes, Trump tried TWICE to eviscerate Section 230, first through his burn-it-down EO and then by vetoing the NDAA because it didn’t repeal Section 230. So he is now trying to obtain via the courts what he could not achieve through his (characteristically inept) administrative and legislative efforts. As for 230’s merits, the DOJ has made it clear that they would love to eviscerate 230 too…even though they are the only entity in the world that always has an automatic bypass to Section 230…

The DOJ also adds that the courts should sidestep the 230 challenge due to the constitutional avoidance principle, because Trump’s cases seemingly can be dismissed on many grounds beyond Section 230.

There remains no doubt Trump’s cases will fail. I can’t wait.