WASHINGTON — President Donald Trump signed an executive order on Thursday aimed at making it easier for people to sue Twitter and other social media platforms for what Trump and his allies have denounced as unconstitutional political censorship.
But any future First Amendment lawsuits that Trump has in mind will run into a problem that his order doesn’t appear to address: a US Supreme Court decision written by a justice he appointed, Brett Kavanaugh.
Trump’s executive order doesn’t — and couldn’t — change Supreme Court precedent. Last year, the court ruled 5–4 that private companies aren’t government actors subject to the First Amendment’s free speech protections just because they open their platforms to the public. Kavanaugh, one of Trump’s two appointees to the Supreme Court, wrote the opinion.
Just this week, the US Court of Appeals for the DC Circuit cited that Kavanaugh opinion when a three-judge panel rejected a First Amendment claim against Twitter, Facebook, Google, and Apple brought by conservative activists, including far-right media personality Laura Loomer, who argued they’d been deplatformed and censored in violation of the First Amendment.
And earlier this year, the 9th Circuit relied on the same Kavanaugh opinion to reject an appeal from Prager University, a nonprofit that produces videos about conservative issues, which had sued YouTube for restricting access to some of its videos.
“Social media platforms are not the government, they are not public fora, trying to superimpose that kind of framework on this makes no sense, and the courts have uniformly held that,” First Amendment lawyer Bob Corn-Revere told BuzzFeed News. (Corn-Revere’s law firm Davis Wright Tremaine has represented BuzzFeed News.)
Trump’s order concerns Section 230 of the Communications Decency Act, which broadly says that companies that serve as platforms for third-party speech, like Twitter or Facebook, aren’t liable for what people post on their sites. It also says that these companies can’t be sued for acting in “good faith” to restrict or take down “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable” material.
Trump contends social media companies aren’t acting in “good faith” and are using Section 230 as a shield to censor conservative voices. Trump signed the order after Twitter fact-checked two of his tweets and flagged them as containing “potentially misleading information.”
“It is the policy of the United States to ensure that, to the maximum extent permissible under the law, this provision is not distorted to provide liability protection for online platforms that — far from acting in ‘good faith’ to remove objectionable content — instead engage in deceptive or pretextual actions (often contrary to their stated terms of service) to stifle viewpoints with which they disagree,” the executive order states.
The executive order doesn’t change anything about how Section 230 is applied in court right away. Trump directed agencies to propose new rules and draft legislation for Congress that would chip away at the immunity social media companies have against being sued.
The question of just how much immunity social media platforms should get has come up in the federal courts in recent years, but not always for the reasons Trump articulated in Thursday’s order. Victims of terrorism and their families have tried to sue tech companies for serving as platforms for groups such as ISIS to recruit, but they’ve lost, in part because courts have found that social media sites are immune under Section 230.
Rather than focusing on political speech, Attorney General Bill Barr brought up terrorism cases in a speech in February as one area where Section 230 had “severely diminished” the power of other tools Congress adopted to provide relief to victims. But Daniel Weininger, a lawyer for families involved in some of the terrorism-related cases, told BuzzFeed News that it didn’t appear Trump’s executive order would directly address the Section 230 issues that have come up in their cases.
“The administration’s concern seems to be some sort of pressing the thumbs on the scale of the content that’s posted on the platform, and what we’re driving at is that there needs to be more activity from the big three [Facebook, Google, and Twitter] with respect to the content that is on there,” Weininger said. “We are asking for more vigilance in terms of policing the content.”
Trump’s order is couched in terms of the First Amendment. The first section reads: “Free speech is the bedrock of American democracy. Our Founding Fathers protected this sacred right with the First Amendment to the Constitution. … In a country that has long cherished the freedom of expression, we cannot allow a limited number of online platforms to hand pick the speech that Americans may access and convey on the internet.”
Several courts have cited Kavanaugh’s June 2019 opinion in rejecting First Amendment claims against online platforms. That case, Manhattan Community Access Corp. v. Halleck, wasn’t about social media; it involved a private nonprofit that operated a public access TV channel in New York. The nonprofit faced a First Amendment claim after it suspended people from the network who had criticized the nonprofit. Kavanaugh, joined by Chief Justice John Roberts Jr. and Justices Clarence Thomas, Samuel Alito Jr., and Neil Gorsuch (Trump’s other Supreme Court pick), wrote that the nonprofit wasn’t acting as a government entity just because it opened up the channel to public speech.
As a private actor, and not a state actor, the nonprofit was “not subject to First Amendment constraints on its editorial discretion,” Kavanaugh wrote.
In February, the 9th Circuit relied on Halleck when it upheld the dismissal of Prager University’s lawsuit against YouTube, which had restricted access to some of the organization’s videos and limited advertising. The 9th Circuit found that the Supreme Court was clear that private entities don’t become state actors just because they operate as a public forum for speech.
“PragerU’s attempt to foist a ‘public forum’ label on YouTube by claiming that YouTube declared itself a public forum ... fails. YouTube’s representation that it is committed to freedom of expression, or a single statement made by its executive before a congressional committee that she considers YouTube to be a ‘neutral public fora,’ cannot somehow convert private property into a public forum,” Judge M. Margaret McKeown wrote for the three-judge panel.
And in yesterday’s DC Circuit order, a three-judge panel wrote that a First Amendment claim against Google, Facebook, Twitter, and Apple brought by Loomer and conservative advocacy group Freedom Watch failed because there was no evidence that the platforms were “engaged in state action.”
“In general, the First Amendment ‘prohibits only governmental abridgment of speech,’” the DC Circuit panel wrote, quoting Kavanaugh, who had included the italics for emphasis in his opinion. “Freedom Watch contends that, because the Platforms provide an important forum for speech, they are engaged in state action. But, under Halleck, ‘a private entity who provides a forum for speech is not transformed by that fact alone into a state actor.’”
Larry Klayman, the founder of Freedom Watch, told BuzzFeed News that the executive order wouldn't directly address the DC Circuit's First Amendment analysis in his case about what counted as a "public forum," but he said he thought the administration was trying to "blunt" the decision and others like it.
UPDATE
Updated with comment from Larry Klayman.