DOJ Tells Courts They Don't Need To Explore The Constitutionality Of Section 230 To Toss Donald Trump's Dumb Lawsuits Out
Last month, we noted that the DOJ had announced it was going to intervene in Donald Trump's bombastically silly lawsuits against Facebook, Twitter, and YouTube for suspending his account for violating the websites' terms of service. Those lawsuits have not been going well. While Trump filed them in his home court in Florida, they've all been transferred to California. His decision to use the case to claim Section 230 is unconstitutional only served to wake up the Justice Department, and have them step in to respond to that particular point.
The DOJ has now filed its briefs -- we'll just share the one in the Twitter case since they're all basically the same -- to say (1) it's easy to dismiss this case without bothering to explore the constitutionality of 230, but if it feels otherwise (2) it's blatantly obvious that 230 is constitutional.
On point one:
Section 230(c) immunity is an affirmative defense, so the Court need not consider theconstitutionality of that provision unless Plaintiff has first demonstrated that he has otherwisesufficiently alleged valid claims against Defendants. Accordingly, before the Court reaches theconstitutional challenge as part of the preliminary injunction motion, it should first considerwhether Plaintiff is otherwise likely to succeed on the merits of his claims against Twitter. Forexample, the Court might decide that Twitter is not a state actor constrained by the FirstAmendment, in which case Plaintiff could not prevail on count one of the FAC, meaning therewould be no need to address the constitutionality of Section 230(c) with regard to that claim.And the Court might similarly decide that Plaintiff is not likely to succeed on the elements of hisstate law claims.
Another possible avoidance path stems from Plaintiff's contention that Section 230(c)does not apply to the misconduct alleged. See Motion at 15-18. If the Court were to concludethat Twitter's acts as alleged by Plaintiff do not fit within the terms of either Section 230(c)(1)or (2), then the statute would not apply, and there would be no occasion for passing on theconstitutionality of the statute. Similarly, if the Court were to agree with Plaintiff that Twitterwas coerced into suspending Plaintiff's account, it might determine that immunity under Section230(c)(2), which applies to certain actions voluntarily taken in good faith," is unavailable
That latter paragraph is a bit head-scratching, because it's pretty blatantly obvious that the websites' moderation is clearly covered by 230, but the overarching point stands: there's no need for the court to explore whether or not 230 is constitutional.
But, then, if the court does decide to go down that path, well...
... although Plaintiff's constitutional challenge is not fully developed, it appears thatPlaintiff's argument is that Section 230(c) is unconstitutional because it supposedly encourages"Twitter to censor constitutionally protected speech." Id. at 9. That argument misunderstandsthe nature of Section 230(c) and the reach of the Skinner and Hanson decisions. Section 230(c)does not require online service providers to limit or regulate speech by their users. Instead, Section 230(c) allows companies like Twitter to choose to remove content or allow it to remainon their platforms, without facing liability as publishers or speakers for those editorial decisions.See Barnes, 570 F.3d at 1102 (in the context of Section 230(c), publication involves reviewing,editing, and deciding whether to publish or to withdraw from publication third-party content.")(emphasis added). Section 230(c) does not reflect a preference for restricting content, much lessfor restricting content relating to any particular viewpoint.
And further:
As courts in this district have already concluded, the federal regulations in Skinner bearno relationship to Section 230(c). [N]othing about Section 230 is coercive." Divino, 2021 U.S.Dist. LEXIS 3245, at *17 (contrasting the regulations in Skinner). Rather, Section 230 reflectsa deliberate absence of government involvement in regulating online speech[.]" Id. Unlike theregulations in Skinner, Section 230 does not require private entities to do anything, nor does itgive the government a right to supervise or obtain information about private activity." Id.Therefore, Twitter remains a private forum, not a public forum subject to judicial scrutiny underthe First Amendment." Prager University v. Google LLC, 951 F.3d 991, 995 (9th Cir. 2020).[C]ourts have uniformly concluded that digital internet platforms that open their property to user-generated content do not become state actors[.]" See id. at 997; see also Atkinson v. MetaPlatforms, Inc., No. 20-17489, 2021 U.S. App. LEXIS 34632, at *3 (9th Cir. Nov. 22, 2021)(Section 230 of the Communications Decency Act does not independently transform MetaPlatforms into a government actor for First Amendment purposes.").
Meanwhile, in that same case, Twitter has also filed its motion to dismiss, and it's worth a read just to understand how bloviatingly pathetic Trump's original complaint is.
Plaintiffs-like all Twitter account holders-agreed to abide by Twitter's Rules, and yet proceededto repeatedly violate those Rules. When Twitter responded by suspending or restricting their accounts,Plaintiffs filed this putative nationwide class-action seeking, among other things, an injunction forcingTwitter to carry Plaintiffs' speech and appointing a court-supervised monitor to oversee all of Twitter'sfuture content-moderation decisions for the hundreds of millions of Tweets posted on its platform everyday. In support of such unprecedented relief, Plaintiffs assert four claims that would upend bedrockprinciples of constitutional law, disregard standing and other procedural limitations, and stretch Floridaconsumer protection laws far beyond their geographic, temporal, and substantive limits.
Each of Plaintiffs' claims is defective for multiple reasons. To summarize just a few: Plaintiffs'lead claim-that Twitter's editorial judgments not to disseminate their messages violated Plaintiffs' FirstAmendment rights-ignores both that Twitter is a private actor that is not constrained by the federalconstitution and that Twitter has its own First Amendment rights to make those judgments. Plaintiffs'invitation for this Court to invalidate a decades-old federal statute (47 U.S.C. 230) as violative of theFirst Amendment fails both because they have no standing to assert such a claim and because theirsuggestion that the statute is unconstitutional is frivolous. Plaintiffs' claim under the general consumerprotection provision of the Florida Unfair and Deceptive Trade Practices Act (FDUPTA") foundersboth because that provision does not apply in this case due to a binding contractual choice-of-law clauseand because the Complaint alleges no facts that support Plaintiffs' theories of consumer deception. And Plaintiffs' claim under a new (and recently enjoined) Florida statute that purports to regulate contentmoderation by certain social media companies (Florida SB 7072) fails at the threshold because all of theconduct challenged in the Complaint occurred before the statute took effect. Plaintiffs' claims should allbe dismissed with prejudice.
Don't hold back now. There's a lot more in the filing, but we'll wait until the judge almost certainly dismisses the case to explore the reasoning...