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Wednesday, June 03, 2020

CDT challenges social-media executive order

The Center for Democracy and Technology has sued President Trump over the social-media executive order. Amazingly, that was issued less than a week ago--remember when that seemed this administration's most significant threat to free speech?

The complaint alleges CDT's organizational standing based on its interests in furthering free speech and online expression and the resources it will have to devote to engaging and monitoring the administrative actions the EO calls for. It also lays the ground for third-party standing on behalf of Twitter and other providers, arguing that the President's past retaliatory actions against private companies may deter them from filing lawsuits. The First Amendment theory is that the EO was retaliatory against Twitter for the exercise of its First Amendment rights, making it "ultra vires and therefore void ab initio."

The organizational standing theory works, at least for the moment. While controversial, this is the same theory that human-rights, immigration, and refugee organizations used in the travel ban and similar cases. Courts do not seem ready to jettison the theory. I am less sure about third-party standing, because it is not clear that "fear of Trump criticism affecting our stock price" is a sufficient barrier to Twitter and other companies enforcing their rights.

But it seems to me that the action fails because, at this point, the EO does not do anything. A legal enactment (whether an EO, regulation, or statute) does not violate rights or cause injury (beyond chilling effect, which is insufficient); the enforcement of that enactment violates rights or causes injury. A court cannot erase an invalid EO any more than it can erase an invalid statute; it can only declare its invalidity and enjoin its enforcement.

The problem is that this EO alone does not do anything and there is nothing to enforce right now, thus it cannot violate rights, cause injury, or otherwise do something that a court can enjoin. The EO commands administrative action that might, when taken, violate the First Amendment, the APA, or some other statute (I have not seen anything to make me believe the FCC has authority to interpret or apply § 230). But we will not know whether those administrative actions cause injury or violate rights until they are taken. Same with the FTC and DOJ surveillance and information-gathering--until we see the form it takes, we cannot know whether it is lawful. That also seems to create a problem for the retaliation argument. If the FCC has authority to interpret § 230 and it comes up with a valid interpretation, the retaliatory motive does not render it unlawful, at least so long as the resulting regulation is not limited to Twitter.

The only question is whether this failure is treated as standing (no one has been injured because the government has not done anything), ripeness (the issues are not fit for judicial resolution), or as substantive First Amendment (nothing happened yet to violate the First Amendment). But, at this point, I do not see how this lawsuit succeeds against an EO that, for the moment, is for show.

Posted by Howard Wasserman on June 3, 2020 at 12:02 PM in First Amendment, Howard Wasserman | Permalink

Comments

This seems exactly right. In fact, the most likely route to justiciability at this point to me is via review of an FCC decision to decline to take action on a petition for rule making that the FTC decides to file per the EO’s request, which leads to a Mass v EPA-type challenge - brought not by CDT, but by a party on the EO side of the issue. But as you say, even that requires an agency action and an agency inaction in response, neither of which have happened (or are likely at this point to happen, though I could be wrong about that).

Posted by: Enrique Armijo | Jun 3, 2020 4:16:56 PM

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