from the no-standing dept
Back in May, you may recall, Donald Trump issued his silly executive order on Section 230 in response to Twitter adding a couple fact checks to blatant conspiracy theory nonsense that Trump was posting. A week later, the Center for Democracy and Technology (CDT) sued over the executive order, arguing that it was unconstitutional, and clearly retaliatory against Twitter.
When CDT filed the lawsuit I noted that the big question would be whether or not CDT could show standing in order to challenge the order, as it would be harder to prove that it impacted CDT directly. CDT argued that because the executive order would divert its attention and resources away from other, more important, fights regarding free speech online and government surveillance, it injured the organization.
On Friday, a judge agreed with my initial gut reaction and said that CDT failed to show standing. Basically, since the order only directed the government to do a bunch of stupid things, it didn’t really impact CDT.
But Order 13,925 is most notable at this point for what it does not do. It imposes no obligation on CDT (or any other private party), but it 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 will therefore dismiss this case for lack of jurisdiction.
The claim that this silly waste of time diverted resources from more serious issues doesn’t impress the court:
If an organization alleges ?only impairment of its advocacy,? that ?will not suffice? to show standing. Turlock, 786 F.3d at 24; see also Food & Water Watch, 808 F.3d at 919 (?Our precedent makes clear that an organization?s use of resources for litigation, investigation in anticipation of litigation, or advocacy is not sufficient to give rise to an Article III injury.?). ?This is true whether the advocacy takes place through litigation or administrative proceedings.? Turlock, 786 F.3d at 24. More, ?an organization does not suffer an injury in fact where it expends resources to educate its members and others unless doing so subjects the organization to operational costs beyond those normally expended.? Food & Water Watch, 808 F.3d at 920 (cleaned up).
Though somewhat ridiculously the judge, Trevor McFadden (appointed by Donald Trump), actually throws in an incredibly silly line, claiming that CDT should be applauding Donald Trump’s executive order, which he suggests (laughably) is about protecting free speech online.
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.
That seems quite silly. Just because Trump’s exec order claimed to be promoting free and open debate on the internet, the whole point was to move to stifle speech online, and that’s what CDT was pointing out. Still, the standing point is a big one and CDT can’t jump over that hurdle:
CDT has not alleged that Order 13,925 has ?perceptibly impaired? its ?ability to provide services.? Turlock, 786 F.3d at 24 (cleaned up). It claims that because of the Order it will have to ?devote substantial resources to?: ?participating in the planned FCC rulemaking proceeding,? ?monitoring federal agencies? reports,? ?tracking any FTC action,? ?participating in any proceedings that the Commission institutes,? and ?engaging with federal and state policymakers.?…
This 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,? Food & Water Watch, 808 F.3d at 919, ?whether the advocacy takes place through litigation or administrative proceedings,? Turlock, 786 F.3d at 24. CDT?s alleged injury?resources spent monitoring federal agencies, participating in their proceedings, and working with lawmakers?is one to its advocacy work, which is not a cognizable injury. … In other words, CDT has shown that it is engaging in business as usual, not that Order 13,925 ?causes an inhibition of [its] daily operations.? …
All in all this is disappointing, but not unexpected. In the meantime, the executive order has already created its own mess in the form of the NTIA petition to the FCC to reinterpret Section 230, which the FCC, led by total hypocrite Ajit Pai, has agreed to move forward with.
CDT may not have had standing to challenge the bogus order, but the order has still created a huge mess for the open internet. It was the kind of mess that principled people could have stopped much earlier, but they all went along with it, either because they’re too clueless to understand Section 230 or they’re too afraid of Donald Trump pointing his angry temper tantrums in their direction. One hopes that the issue will die with the new administration, but with recent moves like appointing the author of the NTIA petition to the FCC, and some other rumors — combined with Biden’s top tech advisor pushing to ditch 230 entirely — the trail of destruction this executive order is causing isn’t likely to end any time soon.