DOJ Tells Courts They Don't Need To Explore The Constitutionality Of Section 230 To Toss Donald Trump's Dumb Lawsuits Out
from the better-than-nothing dept
Last month, we noted that the DOJ had announced it was going to intervene in Donald Trump’s bombastically silly lawsuits against Facebook, Twitter, and YouTube for suspending his account for violating the websites’ terms of service. Those lawsuits have not been going well. While Trump filed them in his home court in Florida, they’ve all been transferred to California. His decision to use the case to claim Section 230 is unconstitutional only served to wake up the Justice Department, and have them step in to respond to that particular point.
The DOJ has now filed its briefs — we’ll just share the one in the Twitter case since they’re all basically the same — to say (1) it’s easy to dismiss this case without bothering to explore the constitutionality of 230, but if it feels otherwise (2) it’s blatantly obvious that 230 is constitutional.
On point one:
Section 230(c) immunity is an affirmative defense, so the Court need not consider the
constitutionality of that provision unless Plaintiff has first demonstrated that he has otherwise
sufficiently alleged valid claims against Defendants. Accordingly, before the Court reaches the
constitutional challenge as part of the preliminary injunction motion, it should first consider
whether Plaintiff is otherwise likely to succeed on the merits of his claims against Twitter. For
example, the Court might decide that Twitter is not a state actor constrained by the First
Amendment, in which case Plaintiff could not prevail on count one of the FAC, meaning there
would be no need to address the constitutionality of Section 230(c) with regard to that claim.
And the Court might similarly decide that Plaintiff is not likely to succeed on the elements of his
state law claims.
Another possible avoidance path stems from Plaintiffâ€™s contention that Section 230(c)
does not apply to the misconduct alleged. See Motion at 15-18. If the Court were to conclude
that Twitterâ€™s acts as alleged by Plaintiff do not fit within the terms of either Section 230(c)(1)
or (2), then the statute would not apply, and there would be no occasion for passing on the
constitutionality of the statute. Similarly, if the Court were to agree with Plaintiff that Twitter
was coerced into suspending Plaintiffâ€™s account, it might determine that immunity under Section
230(c)(2), which applies to certain actions â€œvoluntarily taken in good faith,â€ is unavailable
That latter paragraph is a bit head-scratching, because it’s pretty blatantly obvious that the websites’ moderation is clearly covered by 230, but the overarching point stands: there’s no need for the court to explore whether or not 230 is constitutional.
But, then, if the court does decide to go down that path, well…
… although Plaintiffâ€™s constitutional challenge is not fully developed, it appears that
Plaintiffâ€™s argument is that Section 230(c) is unconstitutional because it supposedly â€œencouragesâ€
Twitter to â€œcensor constitutionally protected speech.â€ Id. at 9. That argument misunderstands
the nature of Section 230(c) and the reach of the Skinner and Hanson decisions. Section 230(c)
does not require online service providers to limit or regulate speech by their users. Instead,
Section 230(c) allows companies like Twitter to choose to remove content or allow it to remain
on their platforms, without facing liability as publishers or speakers for those editorial decisions.
See Barnes, 570 F.3d at 1102 (in the context of Section 230(c), â€œpublication involves reviewing,
editing, and deciding whether to publish or to withdraw from publication third-party content.â€)
(emphasis added). Section 230(c) does not reflect a preference for restricting content, much less
for restricting content relating to any particular viewpoint.
As courts in this district have already concluded, the federal regulations in Skinner bear
no relationship to Section 230(c). â€œ[N]othing about Section 230 is coercive.â€ Divino, 2021 U.S.
Dist. LEXIS 3245, at *17 (contrasting the regulations in Skinner). Rather, â€œSection 230 reflects
a deliberate absence of government involvement in regulating online speech[.]â€ Id. â€œUnlike the
regulations in Skinner, Section 230 does not require private entities to do anything, nor does it
give the government a right to supervise or obtain information about private activity.â€ Id.
Therefore, Twitter â€œremains a private forum, not a public forum subject to judicial scrutiny under
the First Amendment.â€ Prager University v. Google LLC, 951 F.3d 991, 995 (9th Cir. 2020).
â€œ[C]ourts have uniformly concluded that digital internet platforms that open their property to
user-generated content do not become state actors[.]â€ See id. at 997; see also Atkinson v. Meta
Platforms, Inc., No. 20-17489, 2021 U.S. App. LEXIS 34632, at *3 (9th Cir. Nov. 22, 2021)
(â€œSection 230 of the Communications Decency Act does not independently transform Meta
Platforms into a government actor for First Amendment purposes.â€).
Meanwhile, in that same case, Twitter has also filed its motion to dismiss, and it’s worth a read just to understand how bloviatingly pathetic Trump’s original complaint is.
Plaintiffsâ€”like all Twitter account holdersâ€”agreed to abide by Twitterâ€™s Rules, and yet proceeded
to repeatedly violate those Rules. When Twitter responded by suspending or restricting their accounts,
Plaintiffs filed this putative nationwide class-action seeking, among other things, an injunction forcing
Twitter to carry Plaintiffsâ€™ speech and appointing a court-supervised monitor to oversee all of Twitterâ€™s
future content-moderation decisions for the hundreds of millions of Tweets posted on its platform every
day. In support of such unprecedented relief, Plaintiffs assert four claims that would upend bedrock
principles of constitutional law, disregard standing and other procedural limitations, and stretch Florida
consumer protection laws far beyond their geographic, temporal, and substantive limits.
Each of Plaintiffsâ€™ claims is defective for multiple reasons. To summarize just a few: Plaintiffsâ€™
lead claimâ€”that Twitterâ€™s editorial judgments not to disseminate their messages violated Plaintiffsâ€™ First
Amendment rightsâ€”ignores both that Twitter is a private actor that is not constrained by the federal
constitution and that Twitter has its own First Amendment rights to make those judgments. Plaintiffsâ€™
invitation for this Court to invalidate a decades-old federal statute (47 U.S.C. Â§ 230) as violative of the
First Amendment fails both because they have no standing to assert such a claim and because their
suggestion that the statute is unconstitutional is frivolous. Plaintiffsâ€™ claim under the general consumer
protection provision of the Florida Unfair and Deceptive Trade Practices Act (â€œFDUPTAâ€) founders
both because that provision does not apply in this case due to a binding contractual choice-of-law clause
and because the Complaint alleges no facts that support Plaintiffsâ€™ theories of consumer deception. And
Plaintiffsâ€™ claim under a new (and recently enjoined) Florida statute that purports to regulate content
moderation by certain social media companies (Florida SB 7072) fails at the threshold because all of the
conduct challenged in the Complaint occurred before the statute took effect. Plaintiffsâ€™ claims should all
be dismissed with prejudice.
Don’t hold back now. There’s a lot more in the filing, but we’ll wait until the judge almost certainly dismisses the case to explore the reasoning…