District Court Rejects CDT's Challenge Of Trump's Ridiculous Executive Order On Section 230

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.

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Filed Under: donald trump, executive order, section 230, standing
Companies: cdt


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  • icon
    That One Guy (profile), 14 Dec 2020 @ 11:05am

    Ah to be that gullible...

    Saying that Trump was trying to protect free speech online with his tantrum is like saying that someone who torches a house mid-winter was just trying to keep the occupants warm because that's what they said they were doing; just because you say you're doing something does not mean that's what you're actually doing.

    Laughable political pandering aside I can't say I disagree with the overall ruling here, as the link was/is pretty thin and allowing something that weak to constitute standing could set some decidedly unpleasant precedent, where simply not liking the results of something would give you grounds for a legal challenge even if it didn't directly involve you.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 14 Dec 2020 @ 12:00pm

    The other issues, not sure if they were addressed, was that there would need to be a showing that any agency actually DID do anything pursuant to the order. They may all have ignored it as advisory rather than mandatory.

    reply to this | link to this | view in chronology ]

  • icon
    ECA (profile), 14 Dec 2020 @ 12:37pm

    Like to ask.

    Whats going on with all these lobbyists?
    They have to be Around all of this.
    Or something is happening under the table, WHICH is supposed to be illegal.

    Where are our policing forces?
    This seems so Abrupt, and out in force that it Shouldnt be invisible.

    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Sadie Massey Chisum, 14 Dec 2020 @ 1:10pm

    You say S230 benefits at same time say can be taken away!

    Arbitrarily at any time by an unaccountable mega-corporation.

    WHERE is the benefit to The Public, Maz?

    WHY should The Public confer immunity in contrast to ALL prior printed history?

    WHY should we be for New Immune Corporate Censors?


    And your Trump Derangement Syndrome is showing! NOW you won't even agree with a "desire to prevent online censorship"! -- At same time claim Trump is falsely claiming / projecting, you're unable to recognize that YOU could even be taken that way. As I stated WAY back, a key feature here is can't see yourselves as others do. And that's one reason why the site dwindles daily. You've given up even your pretense at objectivity, so what value is there here?

    reply to this | link to this | view in chronology ]

    • icon
      Toom1275 (profile), 14 Dec 2020 @ 1:12pm

      Re: You say S230 benefits at same time say can be taken away!

      [Projects facts not in evidence]

      reply to this | link to this | view in chronology ]

    • identicon
      Rocky, 14 Dec 2020 @ 4:19pm

      Re: You say S230 benefits at same time say can be taken away!

      WHERE is the benefit to The Public, Maz?

      I wouldn't call it a benefit to see you shit-post every other day, but without 230 I would at least be happy to know that you will never be able to shit-post anywhere anymore because no-one in their right mind would dare give space on their service.

      Ahh... Just imagining how you would stew in anger and impotence warms my heart.

      reply to this | link to this | view in chronology ]

    • icon
      ECA (profile), 15 Dec 2020 @ 3:01am

      Re: You say S230 benefits at same time say can be taken away!

      "WHERE is the benefit to The Public, Maz?"\

      COMMUNIST^^^^ SOCIALIST^^^
      Get OFF IT.
      This is a capitalist system. He who dies with the most money WINS.

      reply to this | link to this | view in chronology ]

  • icon
    Richard M (profile), 14 Dec 2020 @ 2:51pm

    On borrowed time

    Section 230 is on borrowed time. Biden in on record as saying he wants to repeal it so it is not like a new administration is going to be any better in this respect.

    The only reason it is still a law is the Democrats and Republicans can not agree on how to destroy it.

    I doubt there will be an outright repeal though, what will happen is that the law will be gutted to the point that it is worthless leaving the politicians from both parties to claim that they fixed and improved it.

    reply to this | link to this | view in chronology ]


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