The U.S. District Court for the District of Columbia has dismissed for lack of jurisdiction the Center for Democracy & Technology’s challenge of President Trump’s executive order aimed at limiting Communications Decency Act section 230’s liability protections for third-party content hosted or transmitted by Internet intermediaries such as Facebook, Inc., and Twitter, Inc.
The court said that CDT did not have standing to challenge the executive order, which "imposes no obligation on CDT (or any other private party), but … merely directs government officials to take preliminary steps towards possible lawmaking. CDT’s claimed injury is not concrete or imminent and is thus insufficient to establish Article III standing. Even if CDT managed to clear the standing hurdle, it faces redressability and ripeness problems too," the court said. It also rejected the notion that CDT could gain standing by representing the interests of companies like Facebook and Twitter.
A spokesperson for CDT told TR Daily, "We're reading the decision and doing some planning. It is important that organizations be able to challenge unconstitutional executive orders."
The executive order (EO 13295) directed the National Telecommunications and Information Administration to file the petition with the FCC, directed the Justice Department to make legislative recommendations to Congress about section 230, directed federal agencies to review their online advertising with an eye toward moving off of platforms that practice viewpoint censorship, and directed the Federal Trade Commission, which is an independent agency not under the authority of the president, to take any appropriate actions related to false and deceptive acts or practices by entities covered by section 230 (TR Daily, May 28). NTIA filed the petition in July (TR Daily, July 27), and FCC Chairman Ajit Pai said in October that he plans "to move forward with a rulemaking" to clarify section 230.
In its lawsuit (case 20-1456), CDT had argued 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."
In finding that CDT’s claimed injury is not concrete, District Judge Trevor N. McFadden said, "CDT has not met its burden to show an injury to its interests. To begin, there does not appear to be a ‘direct conflict’ between Order 13,925 and CDT’s stated mission. 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 ‘advocat[e] in favor of First Amendment protection for speech on the Internet.’ … 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. … It still has not established an Article III injury."
CDT’s argument that the executive order will force it to devote "substantial" resources to tracking various agency actions and participating in the FCC rulemaking proceeding "is plainly deficient. Circuit precedent is ‘clear that an organization’s use of resources for . . . advocacy is not sufficient to give rise to an Article III injury,’" Judge McFadden said.
He noted that in a case decided by the U.S. Court of Appeals for the District of Columbia Circuit in 2015 (Turlock Irrigation District v. Federal Energy Regulatory Commission), "conservation groups challenged a federal agency’s decision to require a hydroelectric river project to be licensed as a single unit, rather than as part of another project. … The groups alleged that they suffered injury, in part, because they would incur costs in ‘actively participat[ing] in both licensing proceedings." Id. at 23. The D.C. Circuit held that the groups’ ‘decision to expend more of its resources by participating in both . . . licensing proceedings is the type of alleged harm that we have repeatedly held does not qualify as an injury in fact.’"
In addition, Judge McFadden said that CDT’s claimed injury "is not ‘actual or imminent’ but ‘conjectural or hypothetical.’" The executive order "does not apply to private parties" but rather directs government agencies to take steps "that may or may not lead to additional regulations, restrictions, or liability at some uncertain point in the future," he said.
As for CDT’s argument that it can assert standing on behalf of third-party platforms injured by the executive order, the judge said that not only does such an argument not absolve CDT from the requirement to prove its own Article III injury, "it fails to show that the platforms cannot protect their own interests. … Online behemoths like Twitter and Facebook command armies of attorneys and lobbyists. They do not need CDT to carry their water for them."
"CDT also lacks standing because any purported injury is not redressable through the injunctive or declaratory relief it seeks here," Judge McFadden said. He noted that a 1992 Supreme Court plurality opinion in Franklin v. Massachusetts "reiterated that ‘in general,’ the Court lacked jurisdiction to issue an injunction against the President ‘in the performance of his official duties’—calling this relief ‘extraordinary’ such that it should ‘raise judicial eyebrows.’"
He also cited Circuit and Supreme Court precedent in opposition to subject the president to declaratory relief.
Instead, he suggested, CDT could bring its case against "subordinate officials."
He also pointed out that injunctive relief would not redress CDT’s claimed injuries because the FCC or Congress could still adopt on their own authority the changes sought by the executive order.
Finally, Judge McFadden said that even if CDT had standing, "its claim would be prudentially unripe."
"First, the issues are not fit for judicial decision. CDT contends that its First Amendment claim is ripe because its ‘injuries flow from the Order itself’ in the form of a threatened ‘chill on online speakers and content hosts.’ … But Order 13,925 places no obligations on any private party. It merely directs government officials to take initial steps in government processes that might (but may not) eventually lead to law governing private parties," he said. —Lynn Stanton, [email protected]
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