• by Wendy Davis  @wendyndavis, December 14, 2020

A second federal judge has dismissed a challenge to President Trump's executive order regarding social media, which aims to make online publishers' protection against liability for users' content contingent on the publishers' content-moderation policies.

In a decision handed down Friday, U.S. District Court Judge Trevor McFadden in Washington, D.C. ruled that the digital rights group Center for Democracy & Technology isn't facing an imminent or concrete injury as a result of the order, and therefore lacks “standing” to challenge it in federal court.

The order “only sets a course of government processes into motion,” McFadden wrote.

“To be sure, the government might issue regulations that [Center for Democracy & Technology] does not like,” the judge wrote. “But it is just as possible that it will not.”

In October, U.S. District Court Judge William Orrick in the Northern District of California also dismissed a lawsuit that sought to invalidate Trump's social media order.

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

That 24-year-old media law, which undergirds the modern web, 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 are sued.)

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

The Center for Democracy & Technology alleged in a complaint filed in June that the order is unconstitutional, and sought an injunction barring its enforcement.

“The order is plainly retaliatory: it attacks a private company, Twitter, for exercising its First Amendment right to comment on the President’s statements,” the organization alleged in its complaint. “More fundamentally, the order seeks to curtail and chill the constitutionally protected speech of all online platforms and individuals -- by demonstrating the willingness to use government authority to retaliate against those who criticize the government.”

In July, the Commerce Department petitioned the FCC for the regulations sought by Trump. That petition was at least partially drafted by telecom lawyer Nathan Simington, who was sworn in on Monday as an FCC commissioner.

FCC Chairman Ajit Pai said he wants to initiate a proceeding to interpret Section 230, but it's not yet clear whether he will do so before leaving the agency next month.

Since issuing the order, Trump has repeatedly called on Congress to repeal Section 230 outright.

He recently vowed to veto a defense spending bill unless the measure also repealed Section 230, which Trump described as as a threat to both national security and “election integrity.”