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."