President Trump’s § 230 Executive Order Doesn’t Do Enough To Be Challengeable
[The Executive Order] 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….
Order 13,925 expresses the Trump Administration’s policy that “[f]ree speech is the bedrock of American democracy” and that “large online platforms, such as Twitter and Facebook, as the critical means of promoting the free flow of speech and ideas today, should not restrict protected speech.” The Order asserts that “[o]nline platforms are engaging in selective censorship.” It explains that § 230(c) of the Communications Decency Act—which, as relevant here, provides immunity from liability to online platforms for restricting some content on their sites—should be clarified.
Some of Order 13,925’s provisions implicate federal agencies. For example, the Order directs the Secretary of Commerce to “file a petition for rulemaking with the Federal Communications Commission (FCC) requesting that the FCC expeditiously propose regulations to clarify” the scope of § 230(c). It also instructs the Federal Trade Commission (“FTC”) to “consider taking action, as appropriate and consistent with applicable law, to prohibit unfair or deceptive acts or practices in or affecting commerce,” to “consider whether complaints [about online platform censorship] allege violations of law,” and to “consider developing a report describing such complaints.”
Order 13,925 includes other directives aimed at government officials. It instructs “[t]he head of each executive department and agency” to “review its agency’s Federal spending on advertising and marketing paid to online platforms” and then requires the Department of Justice to “assess whether any online platforms are problematic vehicles for government speech due to viewpoint discrimination, deception to consumers, or other bad practices.” The Order also charges the Attorney General with “establish[ing] a working group regarding the potential enforcement of State statutes that prohibit online platforms from engaging in unfair or deceptive acts o
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