Federal Court Rejects Challenge to Online Censorship Executive Order

President Trump has won a small court victory in his ongoing attempt at Section 230 reform. Section 230 protects social media companies from liability when they remove offensive content. Despite the win, however, it appears that President Trump will not have been able to make significant changes to Section 230 during his term.

The Trump administration's Executive Order on Preventing Online Censorship, issued last May after Twitter began including fact checks on the President's tweets, started the process for federal agencies to re-examine Section 230. While controversial, the EO did not immediately accomplish anything substantial, instead directing agencies to examine potential laws and consider possible enforcement action. Even at the time, it was largely dismissed as a political statement more than a concrete step toward Section 230 reform.

That didn't stop the Center for Democracy and Technology, a tech policy group, from challenging the EO as an illegal retaliation action against social media companies that had displeased the President. On Friday, December 11, a federal district court judge in Washington, D.C. held in favor of the President, finding at the pleadings stage that CDT lacked standing to contest the EO. According to District Court Judge Trevor McFadden, CDT did not suffer any concrete, particular harm - and the claims were not ripe for litigation.

President Trump's Efforts to Revise Section 230 Appear to Have Failed

Despite the court win for the Trump administration, its larger efforts to amend Section 230 appear to have failed. In a last-ditch attempt to create meaningful change, President Trump threatened to veto the National Defense Authorization Act, which Congress has passed every year since 1967, unless it also revised Section 230. However, a veto-proof 84 Senators passed the bill, rendering President Trump's threat largely hollow. It is also possible the President was bluffing when threatening to veto the bill.

But . . .

Despite failing to get Section 230 liability reform passed in the unrelated NDAA bill, many members of Congress remain open to Section 230 reform. During this past summer's Congressional hearing involving the four heads of Big Tech, Rep. Jim Jordan (R-OH) and others called out Big Tech's alleged bias of conservative voices on Facebook, YouTube, and other social media platforms. The Department of Justice submitted proposed legislation to Congress revoking Section 230 in October.

Proponents of Section 230 will not be able to rest easy any time soon, as President-Elect Joe Biden has previously indicated support for a repeal of the decades-old law, albeit for vastly different reasons than President Trump or Representative Jim Jordan.

Related Resources

• Justice Dept. Decides It's Finally Time to Enforce Antitrust Laws After 20-Year Hiatus (FindLaw's Technologist)
• Committee Hearing Shows the Fight to Regulate Big Tech Is Just Starting (FindLaw's Technologist)
• Will Upcoming Battle Royale Against Google and Apple Finally Lead to App Store Changes? (FindLaw's Technologist)