• by Wendy Davis  @wendyndavis, October 30, 2020

A federal judge has dismissed voter advocacy groups' challenge to President Trump's executive order regarding social media, which aims to make online publishers' legal protection for users' content contingent on the publishers' content moderation policies.

In a decision issued late Thursday, U.S. District Court Judge William Orrick in the Northern District of California ruled that the voting rights groups lacked “standing” to proceed because they didn't show how their rights had been affected by the order.

“Plaintiffs have failed to adequately allege a concrete or personalized injury to themselves traceable to the Executive Order or to show that enjoining or invalidating the Order would redress their alleged injuries,” Orrick wrote in a 17-page ruling.

The decision came in a lawsuit brought by Rock the Vote, Vote Latino, Common Cause, Free Press and Maplight, which argued that Trump's order could discourage websites from correcting misinformation -- including false information about voting.

The groups sought a ruling that Trump's executive order violates the First Amendment, and an injunction blocking the order's implementation.

“Online platforms will reasonably respond to the punitive, threatening measures directed by the Executive Order by rolling back their moderating functions,” the groups alleged in their complaint, filed in August. “The Executive Order also will discourage online platforms from engaging in fact-checking partnerships with organizations like plaintiffs, for fear of being viewed as actively working to fact-check the President and his allies.”

But Orrick said the voting rights groups had not demonstrated that the platforms stopped fact-checking speech as a result of Trump's order.

“If the platforms have not been chilled and have not reduced their fact-checking activities as a result of the Executive Order, then plaintiffs have not been deprived of speech from the platforms or forced to divert resources to combat misinformation as a result of the Executive Order,” he wrote.

Trump's order, issued in May, directed the Commerce Department to petition the Federal Communications Commission to craft regulations that could deprive online platforms of the protections of Section 230 of the Communications Decency Act.

That law currently immunizes Twitter, Facebook, YouTube and other websites from lawsuits based on material posted by users.

It also protects those companies from lawsuits over content moderation. (The First Amendment separately protects companies from lawsuits for removing or moderating content, but Section 230 can provide companies with a faster path to victory when they're sued.)

Trump issued the order after Twitter alerted users to dubious claims relating to voter fraud in two of his tweets.

In July, the Commerce Department petitioned the FCC for the regulations sought by Trump. FCC Chairman Ajit Pai said recently that he wants to initiate a proceeding to interpret Section 230.

The Justice Department also sent Congress a proposal to revise Section 230 by limiting the circumstances under which that law would shield web publishers over removal of content.

Orrick said in his ruling that online companies currently face only a “speculative threat” of curbs on Section 230.

“The FCC may deny the government’s petition to narrow section 230,” he wrote. “Congress may ignore the legislation the Executive Branch has proposed.”

He added: “Any potential enforcement based on these possible future regulations is far too speculative to give rise to a concrete or particularized injury at this point in time.” 

Orrick's decision was without prejudice, meaning that the organizations can reformulate their complaint and bring it again.