Politics

A new lawsuit against Trump’s Section 230 executive order argues it chills speech about voting

The suit accuses the president of using the order to retaliate against Twitter, infringing on the public's right to receive information.

President Trump in the Oval Office

Like an earlier lawsuit filed against the order, this case charges the Trump administration with violating the First Amendment rights of tech platforms.

Photo: Doug Mills/The New York Times/Bloomberg via Getty Images

A coalition of voting rights and watchdog groups is suing the Trump administration over its recent executive order, which aims to curb liability protections for tech platforms under Section 230 of the Communications Decency Act. They argue that the order was retaliatory, seeking to limit voters' right to receive information about the election.

Like an earlier lawsuit filed against the order, which came just days after Twitter applied fact-checking labels to President Trump's misleading tweets about mail-in ballots, this case charges the Trump administration with violating the First Amendment rights of tech platforms. But it also crucially accuses the administration of infringing on the First Amendment rights of everyone else who might receive information from those platforms. In First Amendment law, this is known as the "right to receive."

The plaintiffs in the suit, which was filed Thursday in the Northern District of California, include voting advocacy groups Rock the Vote, Voto Latino and Common Cause, as well as the watchdog organizations MapLight and Free Press.

"The executive order is fundamentally incompatible with the First Amendment. It deprives users of their right to receive information curated by online platforms, including information critical of President Trump or corrective of his falsehoods," the suit reads. "It is unlawfully retaliatory and coercive, sending a clear and chilling message: question President Trump and face retribution from the entire Executive Branch."

The plaintiffs are asking the court to declare the executive order unconstitutional and invalid and to prohibit anyone from implementing or enforcing it. The defendants in the case include: President Trump; Attorney General William Barr; Secretary of Commerce Wilbur Ross; associate administrator of the Office of Telecommunications and Information Douglas Kinkoph; and Russell Vought, director of the Office of Management and Budget.

According to Danielle Citron, a Section 230 scholar and professor of law at Boston University, the plaintiffs will have to prove there has been some harm done as a result of the president's actions. "The self-governance approach contends that free speech matters because it lets listeners figure out the kind of government that they want to live under," Citron said. "But you need a concrete and particularized legal injury, not just a generalized grievance, that can be redressable by the suit."

Section 230 has emerged as a political flashpoint under the Trump administration, which has used anecdotal evidence to repeatedly accuse Facebook and Twitter of silencing conservatives. The law protects online platforms from being held liable for what other people say on those platforms, and also empowers them to moderate content that is objectionable. Losing that protection, tech companies fear, would open them up to endless lawsuits, which they argue could be devastating especially for smaller platforms.

The order, which one White House official told Protocol had been "rammed" through after Twitter fact-checked President Trump, seeks to limit the scope of those protections, in part through new rule-making at the Federal Communications Commission. The FCC has already opened public comments on that rule-making.

This is not the first suit the administration has faced since issuing the order. In June, the Center for Democracy and Technology also sued President Trump, making the case that the order "seeks to curtail and chill the constitutionally protected speech of all online platforms and individuals."

That case is still ongoing. But the plaintiffs in the new suit, several of whom focus on voter turnout, wanted to bring special attention to the substance of the speech President Trump was attempting to curtail. "He wants to make false statements about voting, promote misinformation about voting and then try to stop social media platforms from fact-checking his speech," said Kristy Parker of Protecting Democracy, one of the lawyers bringing the suit.

The plaintiffs argue that President Trump has not only infringed on people's right to receive curated information about voting, but that the retaliatory nature of the executive order is itself a violation of the First Amendment and an attempt to chill future speech.

"The president certainly has the right to speak. He has the right to give his opinion," Parker said. "What he does not have the prerogative to do is to threaten to use his official powers to take punitive action against speakers based on the fact that he does not like their speech."

Protocol | Policy

5 things to know about FCC nominee Gigi Sohn

The veteran of some of the earliest tech policy fights is a longtime consumer champion and net-neutrality advocate.

Gigi Sohn, who President Joe Biden nominated to serve on the FCC, is a longtime net-neutrality advocate.

Photo: Alex Wong/Getty Images

President Joe Biden on Tuesday nominated Gigi Sohn to serve as a Federal Communications Commissioner, teeing up a Democratic majority at the agency that oversees broadband issues after months of delay.

Like Lina Khan, who Biden picked in June to head up the Federal Trade Commission, Sohn is a progressive favorite. And if confirmed, she'll take up a position in an agency trying to pull policy levers on net neutrality, privacy and broadband access even as Congress is stalled.

Keep Reading Show less
Ben Brody

Ben Brody (@ BenBrodyDC) is a senior reporter at Protocol focusing on how Congress, courts and agencies affect the online world we live in. He formerly covered tech policy and lobbying (including antitrust, Section 230 and privacy) at Bloomberg News, where he previously reported on the influence industry, government ethics and the 2016 presidential election. Before that, Ben covered business news at CNNMoney and AdAge, and all manner of stories in and around New York. He still loves appearing on the New York news radio he grew up with.

If you've ever tried to pick up a new fitness routine like running, chances are you may have fallen into the "motivation vs. habit" trap once or twice. You go for a run when the sun is shining, only to quickly fall off the wagon when the weather turns sour.

Similarly, for many businesses, 2020 acted as the storm cloud that disrupted their plans for innovation. With leaders busy grappling with the pandemic, innovation frequently got pushed to the backburner. In fact, according to McKinsey, the majority of organizations shifted their focus mainly to maintaining business continuity throughout the pandemic.

Keep Reading Show less
Gaurav Kataria
Group Product Manager, Trello at Atlassian
Protocol | Workplace

Adobe wants a more authentic NFT world

Adobe's Content Credentials feature will allow Creative Cloud subscribers to attach edit-tracking information to Photoshop files. The goal is to create a more trustworthy NFT market and digital landscape.

Adobe's Content Credentials will allow users to attach their identities to an image

Image: Adobe

Remember the viral, fake photo of Kurt Cobain and Biggie Smalls that duped and delighted the internet in 2017? Doctored images manipulate people and erode trust and we're not great at spotting them. The entire point of the emerging NFT art market is to create valuable and scarce digital files and when there isn't an easy way to check for an image's origin and edits, there's a problem. What if someone steals an NFT creator's image and pawns it off as their own? As a hub for all kinds of multimedia, Adobe feels a responsibility to combat misinformation and provide a safe space for NFT creators. That's why it's rolling out Content Credentials, a record that can be attached to a Photoshop file of a creator's identity and includes any edits they made.

Users can connect their social media addresses and crypto wallet addresses to images in Photoshop. This further proves the image creator's identity, but it's also helpful in determining the creators of NFTs. Adobe has partnered with NFT marketplaces KnownOrigin, OpenSea, Rarible and SuperRare in this effort. "Today there's not a way to know that the NFT you're buying was actually created by a true creator," said Adobe General Counsel Dana Rao. "We're allowing the creator to show their identity and attach it to the image."

Keep Reading Show less
Lizzy Lawrence

Lizzy Lawrence ( @LizzyLaw_) is a reporter at Protocol, covering tools and productivity in the workplace. She's a recent graduate of the University of Michigan, where she studied sociology and international studies. She served as editor in chief of The Michigan Daily, her school's independent newspaper. She's based in D.C., and can be reached at llawrence@protocol.com.

Protocol | China

Why another Chinese lesbian dating app just shut down

With neither political support nor a profitable business model, lesbian dating apps are finding it hard to survive in China.

Operating a dating app for LGBTQ+ communities in China is like walking a tightrope.

Photo: Nicolas Asfouri/AFP via Getty Images

When Lesdo, a Chinese dating app designed for lesbian women, announced it was closing down, it didn't come as a surprise to the LGBTQ+ community.

It's unclear what directly caused this decision. 2021 hasn't been kind to China's queer communities; WeChat has deactivated queer groups' public accounts and Beijing has pressured charity organizations not to work with queer activists.

Keep Reading Show less
Zeyi Yang
Zeyi Yang is a reporter with Protocol | China. Previously, he worked as a reporting fellow for the digital magazine Rest of World, covering the intersection of technology and culture in China and neighboring countries. He has also contributed to the South China Morning Post, Nikkei Asia, Columbia Journalism Review, among other publications. In his spare time, Zeyi co-founded a Mandarin podcast that tells LGBTQ stories in China. He has been playing Pokemon for 14 years and has a weird favorite pick.

The Oura Ring was a sleep-tracking hit. Can the next one be even more?

Oura wants to be a media company, an activity tracker and even a way to know you're sick before you feel sick.

Over the last few years, the Oura Ring has become one of the most recognizable wearables this side of the Apple Watch.

Photo: Oura

Oura CEO Harpreet Rai swears he didn't know Kim Kardashian was a fan. He was as surprised as anyone when she started posting screenshots from the Oura app to her Instagram story, and got into a sleep battle with fellow Oura user Gwyneth Paltrow. Or when Jennifer Aniston revealed that Jimmy Kimmel got her hooked on Oura … and how her ring fell off in a salad. "I am addicted to it," Aniston said, "and it's ruining my life" by shaming her about her lack of sleep. "I think we're definitely seeing traction outside of tech," Rai said. "Which is cool."

Over the last couple of years, Oura's ring (imaginatively named the Oura Ring) has become one of the most recognizable wearables this side of the Apple Watch. The company started with a Kickstarter campaign in 2015, but really started to find traction with its second-generation model in 2018. It's not exactly a mainstream device — Oura said it has sold more than 500,000 rings, up from 150,000 in March 2020 but still not exactly Apple Watch levels — but it has reached some of the most successful, influential and probably sleep-deprived people in the industry. Jack Dorsey is a professed fan, as is Marc Benioff.

Keep Reading Show less
David Pierce

David Pierce ( @pierce) is Protocol's editorial director. Prior to joining Protocol, he was a columnist at The Wall Street Journal, a senior writer with Wired, and deputy editor at The Verge. He owns all the phones.

Latest Stories