Court tosses constitutional challenge to Trump order on social media

No standing —

Plaintiffs can’t challenge the order because they weren’t directly harmed by it.

A federal court in California has tossed out a lawsuit from the voting rights group Rock the Vote. The lawsuit argued that Donald Trump’s May executive order attacking social media platforms violated the group’s First Amendment rights.

Trump’s May executive order was a strange document. Trump was angry about social media companies’ treatment of him and other conservatives. But US law doesn’t actually give the president much power to directly punish private technology companies. So while the May order included a lot of overheated rhetoric, the order’s operative sections were largely toothless.

The order asked the Federal Communications Commission and the Federal Trade Commission to take actions against social media companies. However, these are independent agencies that ultimately make decisions independent of the president. The FTC has signaled it won’t take action on Trump’s suggestions. The FCC has begun a rulemaking process to rethink Section 230, which provides legal protections for sites that host third-party content. But the FCC is just at the beginning of that process. We’re far from any legally binding changes in regulations, and it’s not clear if the FCC even has the authority to re-interpret Section 230.

So in his Thursday ruling, Judge William Orrick ruled that Trump’s executive order simply hadn’t caused the kind of harm to Rock the Vote that could support a First Amendment challenge. US law requires a plaintiff suing the government to show that the plaintiff was personally hurt by the government’s actions.

“Plaintiffs have failed to adequately allege a concrete or personalized injury to themselves traceable to the executive order,” the judge wrote. “It is not that the plaintiffs claim that their rights to free expression have been violated; instead, it is that the speech of online 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.”

While future regulations from the FCC or others could theoretically impact plaintiffs’ First Amendment rights, Orrick ruled that this possibility is “far too speculative to give rise to a concrete or particularized injury at this time.”

Another lawsuit against the executive order remains outstanding in the DC District Court, but it seems likely to fail for similar reasons. The lead plaintiff there, the Center for Democracy and Technology, is in a similar position to Rock the Vote. It hasn’t been directly impacted by the executive order, but the group argues that it has been forced to “divert resources to safeguarding the principles underlying the First Amendment.” Judge Orrick’s ruling seems like a bad omen for the CDT lawsuit.

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Timothy B. Lee