President Trump’s § 230 Executive Order Doesn’t Do Enough To Be Challengeable
From Judge William Orrick’s opinion yesterday in Rock the Vote v. Trump (N.D. Cal.):
Executive Order No. 13,925 … announces a policy position expressing concern over allegedly biased content management by online platforms such as Twitter and Facebook and directs federal agencies to take various actions to attempt to combat this purported bias. These actions include filing a petition with the Federal Communications Commission (“FCC”) to propose rules that would narrow the civil immunities granted to online platforms under section 230(c) of the Communications Decency Act; proposing legislation to Congress that would place additional regulations on platforms; and assessing whether agencies can reduce the amount of money they pay to social media companies for marketing and advertising services…..
Plaintiffs’ novel First Amendment claims are a step removed from the typical kind. It is not that plaintiffs claim that their rights to free expression have been violated; instead, it is that the speech of on-line platforms like Twitter and Facebook have been chilled by the Executive Order, and as a result plaintiffs’ missions are frustrated and they have had to divert resources to combat misinformation on social media. As discussed below, I conclude that plaintiffs have failed to adequately allege a concrete or personalized injury to themselves traceable to the Executive Order or to show that enjoining or invalidating the Order would redress their alleged injuries ….
To establish Article III standing, “a plaintiff must show (1) it has suffered an “injury in fact” that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Plaintiffs fail to satisfy each of the three standing requirements ….
First, plaintiffs have failed to establish that they have suffered an injury in fact that is concrete and particularized.
The posture of this case is unusual—plaintiffs do not allege that the Executive Order directly regulates them or their First Amendment rights or that they themselves are the targets of retaliation. Instead, they allege that online platforms are engaged in constitutionally protected speech by curating and fact-checking misinformation online; that the Executive Order was issued in retaliation for the platforms’ speech and threatens and punishes platforms for this speech; and that platforms are failing to correct misinformation, to the extent they otherwise would, out of fear of the Executive Order.
Plaintiffs state that they are personally injured as a result of the platforms’ failure to check misinformation for
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