When President Trump issued his “Executive Order on Preventing Online Censorship” in May, a reaction to Twitter’s decision to apply fact-checking labels to his tweets, the move quickly prompted legal challenges. The order instructed the Commerce Department to ask the Federal Communications Commission for a rule narrowing the protections of Section 230 of the Communications Decency Act, the statutory provision that shields internet intermediaries from some liability for content posted by their users, and took several other steps geared to policing perceived “bias” online.
In a pair of lawsuits — Center for Democracy & Technology v. Trump and Rock the Vote v. Trump — plaintiffs argued that the order was an effort to punish Twitter for what amounted to editorial commentary on the president’s public remarks. As of last week, both of those challenges have foundered on more or less the same ground: that the plaintiffs haven’t been injured by the order because, well, the order doesn’t really do anything.
In a ruling issued in October, the U.S. District Court for the Northern District of California concluded that nothing in the order amounted to a change in the law today, only a series of “steps that may or may not lead to additional regulations, restrictions, or liability at some uncertain point in the future, largely dependent on the actions of independent agencies and branches of government.” The FCC, for instance, might ultimately decline to issue the rule the president requested (though it has opened a rulemaking docket, despite doubts about its authority to do so).
This month, the federal district court in Washington, D.C., took much the same view — that the order merely “sets a course of government processes into motion,” and that any regulations burdening First Amendment rights could be challenged if and when the government actually imposes them. The court also suggested that it lacked the power to issue a declaration that the president’s threat, itself, violated the First Amendment, on the theory that courts generally can’t directly regulate the president (as opposed to the lower-ranking officials who execute his orders).
Rock the Vote has indicated that it plans to appeal; as of this writing, the Center for Democracy & Technology hasn’t detailed next steps. But the practical effect of these rulings is that the future of the Section 230 order will likely be decided by President Biden, not the courts.
Together, these cases highlight an issue the Reporters Committee has frequently flagged: It can be difficult for plaintiffs to win a remedy for retaliatory threats when the official issuing the threat is the president. The outgoing administration frequently intimated that it would use governmental processes to punish reporters and media organizations for critical coverage, whether by revoking press passes, enforcing the law selectively or intervening in federal contracting decisions. Courts, though, are often reluctant to look through an agency’s official reasons for taking an action, leaving the White House’s threat — and the chilling effect it can cause — hanging in the air.
We’ll continue to follow these cases as they develop.
The Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press uses integrated advocacy — combining the law, policy analysis, and public education — to defend and promote press rights on issues at the intersection of technology and press freedom, such as reporter-source confidentiality protections, electronic surveillance law and policy, and content regulation online and in other media. TPFP is directed by Reporters Committee attorney Gabe Rottman. He works with Stanton Foundation National Security/Free Press Legal Fellow Grayson Clary and Technology and Press Freedom Project Legal Fellow Mailyn Fidler.