TR Daily CDT Sues to Overturn Trump’s Section 230 Content Liability EO
Tuesday, June 2, 2020

CDT Sues to Overturn Trump’s Section 230 Content Liability EO

The Center for Democracy & Technology has filed a lawsuit with the U.S. District Court for the District of Columbia raising First Amendment challenges to President Trump’s recent executive order aimed at limiting liability protections for Internet intermediaries.

Last week, just day after Twitter appended a “get the facts” notice to tweets by President Trump stating that mail-in voting will lead to “fraudulent” ballots and “a rigged election,” the president signed an executive order calling for regulations to limit Internet intermediaries’ ability to claim the liability shield for third-party content in section 230 of the 1996 Communications Decency Act if they remove or limit access to content. It also calls for the attorney general to propose legislative language to change section 230 and says that the Federal Trade Commission—which is an independent agency not subject to administration directives—“shall consider taking action, as appropriate and consistent with applicable law, to prohibit unfair or deceptive acts or practices in or affecting commerce, pursuant to section 45 of title 15, United States Code. Such unfair or deceptive acts or practice may include practices by entities covered by section 230 that restrict speech in ways that do not align with those entities’ public representations about those practices” (TR Daily, May 28).

In its lawsuit (case 20-1456), CDT argues that the executive order “violates the First Amendment in two fundamental respects: 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. 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.”

It cites precedents for a number of First Amendment principles that it says the executive order violates, including a prohibition on government officials “from using government power to retaliate against an individual or entity for engaging in protected speech,” a prohibition on “the use of government power to chill individuals or entities from engaging in protected speech,” and a bar on “the government from trying to censor lawful speech—such as the online speech of ordinary Americans—through the threat of liability or reprisals directed at intermediaries, the companies that provide the platform for Americans’ online speech.”

It adds, “The processes prescribed by the Order would circumvent the role of Congress and of the courts in enacting and interpreting 47 U.S.C. [section] 230 (‘Section 230’)—a critical protection for online speech—and purport to empower multiple government agencies to pass judgment on companies’ content moderation practices. The Order clouds the legal landscape in which the hosts of third-party content operate and puts them all on notice that content moderation decisions with which the government disagrees could produce penalties and retributive actions, including stripping them of Section 230’s protections. It invokes government authority to set in motion processes to limit legal protections applicable to private actors and to coordinate legal actions by State Attorneys General against online service providers, and threatens withdrawal of government advertising funds. The effect of the Order will be to reduce Americans’ ability to speak freely online and access the wide range of information and views that are available today.”

CDT continues, “President Trump’s retaliatory motivation and his goal of chilling future protected speech that is inconsistent with his views render the Executive Order violative of the First Amendment.”

CDT says, “The Order will interfere significantly with the freedom of speech of all Americans. Intermediaries that host content online will be forced to shape and apply their content moderation policies according to government officials’ desires, depriving Americans of access to online forums free from government interference with their constitutionally protected speech. And those intermediaries will be chilled in exercising their own First Amendment right to comment upon and to moderate the online content that they host.”

It asks the court to “declare that the Executive Order violates the First Amendment and is therefore invalid, and issue an order prohibiting government officials from engaging in the acts specified in the Order.”

CDT argues that the executive order injures it “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. [section] 230, and the free speech rights of online content platforms and individuals that the Executive Order places under attack.”

It adds, “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.” —Lynn Stanton, [email protected]

MainStory: FederalNews Courts FCC FTC InternetIoT

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