July 13, 2020

CDT First Out The Gate In Suing To Block Donald Trump’s Silly Executive Order On Section 230

By Mike Masnick
The Center for Democracy and Technology appears to be the first out of the gate in suing Donald Trump to block his silly executive order on Section 230. In the aftermath of the EO being issued I know some people wondered if it was actually worth suing over, since it actually did so little in practice. But, as I discussed in this week’s podcast, it can still be used to create havoc.

The basic argument in the lawsuit is that the executive order is clearly retaliatory against Twitter for its 1st Amendment protected speech in fact-checking the President, and thus violates the 1st Amendment:

A private company engaged in constitutionally protected speech on its own online
platform by including a label on President Trump’s tweets on May 26, 2020, and linking to
information regarding the subject matter of President Trump’s tweet, thereby expressing its
viewpoint and adding to the discourse on its platform regarding the subject matter of the
President’s tweets.

Two days later and after a series of public attacks directly focused on the company’s
exercise of free speech, President Trump retaliated on May 28, 2020, by issuing the “Executive
Order on Preventing Online Censorship,” expressly mentioning the company by name six times.
The company’s constitutionally protected speech was the proximate or “but for” cause of President
Trump issuance of the Executive Order. President Trump also issued the Executive Order to
pressure the company into removing its constitutionally protected speech from its online platform
and to coerce other Internet intermediaries into refraining from similar constitutionally protected
speech on their own platforms, and into prohibiting such speech by their users, in the future.

President Trump’s retaliatory acts would deter a person of ordinary firmness from
engaging in First Amendment speech and activity.

The Executive Order was intended to have, and is having or is likely to have, the effect
of chilling the constitutionally protected speech of online content platforms, including Twitter,
Facebook, Instagram, and YouTube that were explicitly named in the Executive Order…. The
Executive 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.

The complaint goes into great detail as to why this is obviously retaliatory, laying out the timeline:

Twitter did not remove the President’s tweets about mail-in voting. Those tweets
remain available to the public. Instead, Twitter provided more information regarding the subject
matter of the President’s tweet.

In response, on May 26, 2020, the President tweeted “@Twitter is now interfering in
the 2020 Presidential Election. They are saying my statement on Mail-In Ballots, which will lead
to massive corruption and fraud, is incorrect, based on fact-checking by Fake News CNN and the
Amazon Washington Post . . . .” “Twitter is completely stifling FREE SPEECH, and I, as
President, will not allow it to happen!”

[….]

On May 27, 2020, the President tweeted at 7:11 a.m., “Republicans feel that Social
Media Platforms totally silence conservatives voices. We will strongly regulate, or close them
down, before we can ever allow this to happen. We saw what they attempted to do, and failed, in
2016. We can’t let a more sophisticated version of that . . . happen again.” “Just like we can’t
let large scale Mail-In Ballots take root in our Country. It would be a free for all on cheating,
forgery and the theft of Ballots. Whoever cheated the most would win. Likewise, Social Media.
Clean up your act, NOW!!!!”

The President continued his targeted attacks by tweeting at 10:22 a.m., “Twitter has
now shown that everything we have been saying about them (and their other compatriots) is
correct. Big action to follow!” At 9:36 p.m., he followed up by tweeting, “Big Tech is doing
everything in their very considerable power to CENSOR in advance of the 2020 Election. If that
happens, we no longer have our freedom. I will never let it happen! They tried hard in 2016, and
lost. Now they are going absolutely CRAZY. Stay Tuned!!!”

On May 27, 2020, White House adviser Kellyanne Conway, appearing on “Fox &
Friends,” spelled out the Twitter handle for Twitter’s head of Site Integrity (a “handle” is the means
of identifying a specific individual via Twitter) and said, “somebody in San Francisco will wake
him up and tell him he’s about to get more followers. This guy is constantly attacking Trump
voters, Trump, Mitch McConnell, you name it.” The handle for Twitter’s head of Site Integrity
is “@[y*****].”

At 10:47 p.m. on May 27, 2020, Twitter’s CEO Jack Dorsey stated on Twitter that he
personally took responsibility for the decision to add a label to Trump’s tweets, adding, “Please
leave our employees out of this.”

On May 28, 2020, the President retweeted Rep. Elise Stefanik’s tweet: “Thanks for the
clarification @jack[.] This makes YOU accountable for allowing the Chinese Communist Party
to abuse this site with mis-information & propaganda spread across the globe – all while the CCP
bans and suppresses their own people from using Twitter!”

Later that morning, at 8:37 a.m., President Trump tweeted, “This will be a Big Day for
Social Media and FAIRNESS!” At 12:44 p.m. he continued, “So ridiculous to see Twitter trying
to make the case that Mail-In Ballots are not subject to FRAUD. How stupid, there are examples,
& cases, all over the place. Our election process will become badly tainted & a laughingstock all
over the World. Tell that to your hater “@[y*****].”

There’s more in the complaint on Trump’s retaliatory efforts, including examples of him retaliating against companies in the past as well.

One question I was concerned about was whether or not CDT actually would have standing to bring this lawsuit, since it’s not an interactive computer service, as targeted by the complaint. CDT argues that it has standing due to its efforts to fight for free speech online, which the order will likely impact:

CDT is a nonprofit advocacy organization that works to ensure that the human rights
people enjoy in the physical world, like freedom of speech, are realized online and that technology
continues to serve as an empowering force for people worldwide. Integral to this work is CDT’s
representation of the public interest in the creation of an open, innovative, and decentralized
Internet that promotes the constitutional and democratic values of free expression, privacy, and
individual liberty.

Critical to CDT’s mission is advocating in favor of First Amendment protection for
speech on the Internet. To that end, among other things, CDT has participated in a number of cases
addressing First Amendment rights and the Internet, including as litigants in CDT v. Pappert, 337
F. Supp. 2d 606, 646, 649-63 (E.D. Pa. 2004) (striking down as unconstitutional a statute that
imposed criminal liability on Internet service providers who failed to comply with requests issued
by the Pennsylvania Attorney General to block access to websites containing child pornography);
challenging, as part of a broad coalition, key portions of the Communications Decency Act (CDA)
in Reno v. ACLU, 521 U.S. 844 (1997) (striking down portions of the CDA prohibiting
transmission of obscene or indecent communications to persons under Age 18 as a content-based
blanket restrictions on speech and facially overbroad in violation of the First Amendment); and as
amicus curiae in First Amendment challenges including Backpage.com, L.L.C., v. Dart, 807 F.3d
229 (7th Cir. 2016) (holding campaign by sheriff’s office to pressure pressuring financial
intermediaries to cease payment processing for online classified advertising website to be an
unconstitutional prior restraint) (See ECF Nos. 29, 34, 35, and 37, No. 15-3047 (7th Cir.)).

CDT has been deeply engaged in law and policy advocacy regarding intermediary
liability frameworks, free speech, and content moderation since the organization was founded in
1994.

The organization devotes significant resources to advocating in favor of individuals’
online free expression rights and the legal frameworks that support them, including evaluating
proposals to amend the proposed laws on free speech online and challenging legislation that
burdens individuals’ fundamental rights, holding public events, and communicating with policy
makers in the Executive and Legislative Branches.

The Executive Order injures Plaintiff CDT by infringing on its interests, including its
interests in enhancing freedom of expression, preserving the unique nature of the Internet, and
limiting government surveillance, and by causing Plaintiff CDT to divert resources to safeguarding
the principles underlying the First Amendment, 47 U.S.C. § 230, and the free speech rights of
online content platforms and individuals that the Executive Order places under attack.

As a result of the Executive Order, CDT will be required to devote substantial resources
to (a) participating in the planned FCC rulemaking proceeding; (b) monitoring federal agencies’
reports regarding and any action by the Department of Justice; (c) tracking any FTC action with
respect to online speech, and participating in any proceedings that the Commission institutes; (d)
engaging with federal and state policymakers with respect to the development of proposed
legislation—as well as informing the public about all of these activities and the potential
consequences for protection of free speech online. These activities will be time-consuming and
resource-intensive, and will require CDT to reallocate resources that it planned to use for other
activities furthering its mission.

I don’t know if this will be enough to convince the court, but I hope it is. CDT has been on the frontlines of so many lawsuits defending free speech on the internet, with many success stories behind it. Hopefully this is another one.

Source:: https://www.techdirt.com/articles/20200604/00205744640/cdt-first-out-gate-suing-to-block-donald-trumps-silly-executive-order-section-230.shtml