CDT First Out The Gate In Suing To Block Donald Trump's Silly Executive Order On Section 230
from the go-go-1st-amendment-go dept
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.
Filed Under: 1st amendment, cda 230, donald trump, executive orders, free speech, retaliation, section 230
Comments on “CDT First Out The Gate In Suing To Block Donald Trump's Silly Executive Order On Section 230”
"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"
I am not a lawyer, but …..
This seems to me as though it is an abuse of power. I thought there were words on paper, that everyone agreed to, stipulating that abuse of power will not be tolerated and yet here we are. It makes those words on paper seem worthless, even worse than worthless because many people actually believed that shit.
Not only is it an abuse of power but also an abuse of the EO, as it was not intended as a tool for personal vendetta but rather a tool to expedite emergency action (not powers) during a crisis. I fail to see the crisis in section230, perhaps it is because I see no bias of only conservative voices.
Re: Re:
Conservative voices have an anti-liberal bias. We should outlaw conservative voices.
This comment has been flagged by the community. Click here to show it.
Re: Re: Re:
"Conservative voices have an anti-liberal bias. We should outlaw conservative voices."
We should outlaw the idiotic outlawing of shit just because we do not like it. That sort of thing is juvenile and pointless, sort of like Donald’s tweets.
Re: Re: Re: Re:
You really couldn’t spot the sarcasm in that comment? Seriously?
Re: Re: Re:2 Re:
I do now ….. poe’s law I guess.
This comment has been flagged by the community. Click here to show it.
Re: where
I dont see those words words written anywhere, "don’t abuse power". It’s certainly an excellent concept, but one that lacks specificity. You can’t pass a law which says "dont abuse power" anymore than you can pass a law that says "everyone must act nicely".
That being said, Trump’s executive order certainly seems retaliatory, but is there some kind of law against retaliation? If a foreign country tried to hack into a computer system to alter the outcome of an election, I would love for the authorities to retaliate by cutting off the offending nation. Sometimes you desire retaliation.
Re: Re: where
"I dont see those words words written anywhere"
Did you look?
If I recall correctly, there was a recent case in which the president was impeached. Of course you recall that.
On December 13, 2019, the House Judiciary Committee voted along party lines to pass two articles of impeachment: abuse of power and obstruction of Congress
Donald Trump
This comment has been flagged by the community. Click here to show it.
Re: Re: Re: where
Of course, the Senate then voted that "abuse of power" was not an impeachable offense, and he was acquitted. Again, it’s a nice concept, but you need to cite some kind of violation of a statute. Simply saying "abuse of power" means that you don’t agree with the outcome, which truly is how you feel, but is not legally actionable.
Re: Re: Re:2 where
Oh please ….. do I have to bring up Nixon? He quit because he was not a crook.
Not legally actionable you say ……..
Impeachment of U.S. officials
Re: Re: Re:3 where
Of course Koby is not going to explain the not legally actionable claim
Re: Re: where
In this case, there is the first amendment, and a major reason for its existence is to stop the government shutting down any opposition.
This comment has been flagged by the community. Click here to show it.
Re: Re: Re: where
Okay, so now that we’re past that "retaliation" thing, we can get to the heart of the matter, which is the 1st amendment and not "retaliation". If you can explain where in the EO that speech is wrongly limited, I’d be glad to listen. But instead, it’s mostly a shot against section 230 so it’s not about the 1st amendment.
Re: Re: Re:2 where
"But instead, it’s mostly a shot against section 230 so it’s not about the 1st amendment."
Do you ever get tired of being this dumb?
Re: Re: Re:3 where
"Do you ever get tired of being this dumb?"
I think the poster is being disingenuous rather then simply being ignorant. Insufficient data to ascertain dumbness.
Re: Re: Re:4 where
Oh, every now and then Koby brings a point to the table…
…but when it comes to section 230 you can rely on him to lie as if he was paid to do so.
He knows damn well that section 230 is about property rights and yet is all too happy to advocate that a platform hitting some magical limit of popularity should mean said private platform has to become nationalized.
Why he is skittering around that issue and trying to deflect the question with everything from straw men arguments to false equivalence is, by now, no longer relevant.
I personally have taken to just evaluating his argument and then flagging it – because it no longer carries the excuse of ignorance and hasn’t, for a long time.
Re: Re: Re:5 where
" private platform has to become nationalized."
Interesting, as I had not considered the poster named Koby to be a socialist.
Re: Re: Re:6 where
People can claim to be anything, but it’s what they advocate for and what they do that tells us what they really are.
Re: Re: Re:6 where
"Interesting, as I had not considered the poster named Koby to be a socialist."
He most definitely isn’t. ALL of his other comment history suggests, very strongly, that he’s otherwise libertarian.
And yet he cheerfully holds one wordwall after the other whenever section 230 comes up with the argument that when a private platform hits some magical limit it should stop being a private platform.
It’s literally the argument that if a bar is sufficiently popular the bar owner shouldn’t be empowered to show rowdy patrons the door. And that if you used your home for parties and someone brought a soapbox and a bullhorn you should be forced to let the bastard camp your living room until he himself felt he had enough.
Either Koby lives in a permanent state of cognitive dissonance held at bay with iron-clad compartmentalization or he has a strong vested interest in forcing Twitter and FB to not show obnoxious posters the door.
Re: Re: Re:2 where
That’s not correct. 230 is a clarification of what the 1st Amendment protects, not new law. 230 is all about the 1A.
Tear down 230 and 1A still exists with all the same protections it always afforded, including all those things 230 clarified. Just because 230 might be gone doesn’t mean Twitter and friends aren’t still free to continue acting as they have. It will just allow a bunch of grandstanding lawsuits to move forward only to die to 1A after costing Twitter a bunch of lawyer money. (ahem) Exactly what 230 was written to avoid.
This comment has been flagged by the community. Click here to show it.
Re: Re: Re:3 where
Apparently, the courts were unconvinced. In Stratron Oakmont v Prodigy, the courts found Prodigy liable for defamation because it was moderating the messages posted to its platform. The 1st Amendment did not help.
Thus the CDA of 1996 was written in order to counteract the court decision. Section 230 completely contradicted what was previously determined in court, and was very much a new law. There is no first amendment right to section 230 protection.
Re: Re: Re:4 where
The Prodigy decision was determined to be incorrect after the fact. 230 explained "the way it should be" and is based entirely on 1A.
And there again is the wrong bit. 1A gives people the right to express their 1A rights on their own property. This applies to Twitter and it’s owners as well as all Americans. How they choose to filter or moderate what their property repeats is completely protected by 1A. We just needed 230 to get people who don’t understand 1A to maybe finally understand.
I don’t see how that’s such a difficult concept.
This comment has been flagged by the community. Click here to show it.
Re: Re: Re:5 where
Who determined it to be wrong? To my knowledge there was no re-review. A state supreme court said otherwise, and the federal supreme court declined to overrule. I dont even see where the defense attempted to assert 1st amendment protection in the case. Obviously if they did, it failed.
So the lawmakers disagreed, and they did the proper civics thing and passed a new law to change the outcome. But know that there was no successful 1st amendment protection ever established to protect moderators from liability. Only through a change in federal law did that occur.
Re: Re: Re:6 where
Congress did. You know… the legislative branch of our government? Yeah, the one that governs federal law. And they did so on 1st Amendment grounds with a specific goal in mind.
If there was no 1st Amendment there would be no 230.
Re: Re: Re:6 where
See Cubby, Inc. v. CompuServe Inc, which happened in 1991, four years before Stratton Oakmont, Inc. v. Prodigy Services Co:
In both cases, the defendants where sued for defamation and the first case should have set the precedent which would have resolved the second case as soon as it hit the courts. That didn’t happen which made all internet services with UGC end up in a catch-22 situation: moderate or not – you will get sued regardless. Section 230 clarified the situation which allowed the internet services to make choice regarding moderation without the risk of getting sued.
Now, you where saying?
Re: Re: Re:7 where
"Now, you where saying?"
It is almost as if one should take everything Koby says with a grain of salt.
Re: Re: Re:8 where
"It is almost as if one should take everything Koby says with a grain of salt."
Not everything. But there are certainly multiple topics where his standard argument is a pack of lies and false assumptions propping up a straw man. And every time section 230 is mentioned he wants it gone for…reasons he can’t back up without again lying through his teeth about what it does and what the lack of it would do.
In the end what he’s really after is that with 230 out of the way people would no longer have the right to show guests in their own property the door.
He’s advocating that the bar owner shouldn’t be allowed to throw people out for pissing on his floor or shouting at his other patrons. That’s basically his agenda here.
Re: Re: Re:9 where
But what will he do when all the bars close their doors, which will happen because they to close because of the loss of protection, or because they lose all their customers because of the loudmouths
Re: Re: Re:10 where
Well, they have special bars where only exclusively connected individuals are allowed to congregate.
Re: Re: Re:11 where
More likely they will complain how unfair it is that people will not hang around and listen to them, and say that that proves there is a bias against their politics.
Re: Re: Re:10 where
"But what will he do when all the bars close their doors, which will happen because they to close because of the loss of protection…"
His suggestion so far is that the other patrons should all be given the authority to show people they thought were obnoxious, the door. Imagine, for a second, every bar having a permanent population consisting of that one camping troll who outlasted the rest.
This topic is where Koby becomes incredibly strange. He usually comes off as an outspoken libertarian but whenever people discuss section 230 he swings around with arguments lifted from the worst collectivist claptrap old east german commissars would have been proud to trot out.
He’s either suffering from a very odd sort of compartmentalization effect or he has a powerful vested interest in overturning section 230.
Re: Re: where
That being said, Trump’s executive order certainly seems retaliatory, but is there some kind of law against retaliation?
In this case yes, and I’m glad you asked. It’s called ‘the first amendment’, you might have heard of it? Something about the government not being allowed to try to punish people for their speech.
Sometimes you desire retaliation.
And those with the maturity of adults are able to push past that and not lash out like angry children.
This comment has been flagged by the community. Click here to show it.
Re: Re: Re: where
Okay, so now that we’re past that "retaliation" thing, we can get to the heart of the matter, which is the 1st amendment and not "retaliation". If you can explain where in the EO that speech is wrongly limited, I’d be glad to listen. But instead, it’s mostly a shot against section 230 so it’s not about the 1st amendment.
Re: Re: Re:2 where
Wrong. And copy-pasta. If you’re going to spam incorrect information at least be original in your postings.
This comment has been flagged by the community. Click here to show it.
Re: Re: Re:3 where
Hey, you were the one that repeated the nearly identical 1st Amendment response 40 mins after Anonymous Coward up above. But yeah, swap over to that other line if you want, now that you see it.
Re: Re: Re:4 where
Nice try. "Nearly identical" was necessary because it’s a simple concept that you just don’t seem to grasp and you keep posting misinformation. But at least I didn’t copy+paste my response in some childish effort to be heard, i.e. "Notice me, Senpai!".
Re: Re: Re:2 where
Okay, so now that we’re past that "retaliation" thing, we can get to the heart of the matter, which is the 1st amendment and not "retaliation"
No, we’re most certainly not ‘past that ‘retaliation’ thing’, as the president of the US lashing out against a private company because they had the audacity to fact check him is something that should concern anyone who can see past the current moment and realize that government officials abusing their power for personal reasons is not in any way an acceptable action, all the more so when the means are an attack on the first amendment speech of others.
If you can explain where in the EO that speech is wrongly limited, I’d be glad to listen.
If you can’t see how an EO intended to punish a private company for their speech, and pressure that company and others into not exercising their free speech rights on their platforms in the future is a first amendment issue that’s kinda on you.
But instead, it’s mostly a shot against section 230 so it’s not about the 1st amendment.
As I have noted in the past in response to another of your comments, repeating a falsehood does not a truth make.
Re: Re: where
That being said, Trump’s executive order certainly seems retaliatory, but is there some kind of law against retaliation?
I see that you have deliberately misconstrued what other commenters have said about this, but let me lay it out for you in big letters since you seem to have trouble with the small ones: RETALIATION AGAINST PROTECTED SPEECH IS A VIOLATION OF THE 1st AMENDMENT.
When multiple commenters pointed you to the 1st amendment you kept saying that meant we were "past the retaliation." But you’re either very very stupid or very very ignorant. Or you’re playing that for reasons that are beyond me.
Retaliating against protected speech is a straight up violation of the 1st Amendment.
"Threatening penalties for future speech goes by the name of ‘prior restraint,’ and a prior restraint is the quintessential first-amendment violation."
And that’s exactly what this lawsuit is arguing.
Re: Re: where
"I dont see those words words written anywhere, "don’t abuse power"."
THAT is your argument against a president – the highest form of elected official – signing executive orders for his own personal benefit?
That "hey, there’s no law against it"?
Beati pauperes spiritu…
Re: Re: Re: where
I wonder what goes through a persons mind when they think "abuse" is just fine if there is no law against that particular abuse.
Re: Re: Re:2 where
I suppose that if Koby feels any of the 4 definitions above constitute core conservative values then his idea that there’s an anti-conservative "bias" going on might make some sense to him.
Still doesn’t explain why someone who usually argues like a confirmed libertarian would swing a hammer-and-sickle banner shouting "Private Property Is Stealing From the Public" and propagate for the abolition of private property as long as the collective feels that said property is interesting enough…
Abuse of power in this administration is like going a little fast at the Indianapolis 500
I think I need to stock up on popcorn for this one
When trump says he is kidding...
https://abcnews.go.com/Politics/trump-kidding-border-wall-colorado-twitter-fires-back/story?id=66501176
Trump says he was kidding about a border wall in Colorado, Twitter fires back
https://www.thedailybeast.com/trump-says-he-was-joking-when-he-asked-about-injecting-disinfectants-and-uv-light-to-treat-virus
Trump Claims He Was Joking When He Very Seriously Asked About Injecting Disinfectants and UV Light
I Believe him, he is a clown..
Iv suggested that he SHUT up and get those He hired for the positions to discus and notify us of the problems.. Thats their job, isnt it??
Re: When trump says he is kidding...
"Trump says he was kidding about a border wall in Colorado"
Now Trump is building a wall around the white house – lol, the comments are funny. One says that Mexico just might pay for that wall.
where does he live??
https://www.washingtonpost.com/lifestyle/style/president-trump-tried-to-register-to-vote-in-florida-using-an-out-of-state-address/2020/06/03/687d0014-a4f2-11ea-b473-04905b1af82b_story.html?utm_campaign=wp_main&utm_medium=social&utm_source=twitter
"President Trump originally tried to register to vote in Florida while claiming his “legal residence” was in another part of the country — Washington, D.C. — according to Florida elections records."
I dont think he knows?
Re: where does he live??
And now we know how Trump knows there is so much voter fraud… he tries to perpetrate it apparently. And we know those with his mentality love projection, so if he’s cheating, everyone voting by mail must be cheaters as well (and everyone not voting for him of course)…
So the only non fraudulent votes are those cast in person for Trump. Glad we could clear that up for you, see you at the Polls for 2020…
Re: where does he live??
In some countries the law specifies that what counts as your legal residence is the state (or the equivalent) where you spend a majority of your "down time".
So…perhaps it isn’t so far-fetched that Trump thinks Florida is his home state, he certainly spent a lot of time at Mar-a-Lago… ¯(ツ)/¯
Hope
The Complaint filed by CDT seems well-reasoned and well-spoken.
Experienced attorneys will conduct the defense, but on what basis? Trump’s argumentation is shadow-boxing. He dances in circles, attacking nothing. If he had half a brain, he’d be dangerous.