Section 230, Which Donald Trump Wants Repealed, Protects Donald Trump For Retweeting

Donald Trump, who has demanded both that we open up our libel laws" and that we repeal Section 230," was just protected from a defamation claim thanks to Section 230. How about that?

One thing that many people forget (or deliberately ignore?) regarding Section 230 is that it not only protects Big Tech" as some people claim, and not just protects websites," but it also protects users of websites when they share or repost content. Section 230 protects all of us for when we repost someone else's content.

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

Some people feel this is problematic, but it's actually quite important. People may randomly forward an email or retweet something, and that should be protected under Section 230. In most cases, such email forwarding or retweeting would be unlikely to meet the actual malice standard for defamation. The difference between getting a case dismissed under Section 230 grounds as opposed to having to prove there wasn't actual malice could be on the order of hundreds of thousands of dollars.

This stuff matters.

Section 230's protections for users are an important part of why Section 230 is valuable.

And now, somewhat ironically, it has protected Donald Trump and his fail-son Eric from defamation claims for retweeting nonsense. Now, folks who dislike Trump may not like this, but it's the right result. The general retweets should absolutely be protected by Section 230 (and if you're upset about this, just note that the case includes lots of other statements made by Trump that weren't tossed out at this stage and will proceed forward).

Professor Eric Goldman details the Section 230 bits of this case. Both Eric Trump and Donald Trump retweeted or quote-tweeted some nonsense about Eric Coomer, a Dominion Voting Systems employee who became embroiled in a nonsense conspiracy theory after the 2020 election. If you want the full details of the story, the NY Times Magazine did a big feature article on Coomer's situation back in 2021.

Part of the conspiracy theory were the false claims that Coomer was a part of Antifa" (a thing that does not, in fact, exist) and took part in a phone call suggesting that he had rigged the voting machines. That was absolute nonsense. Coomer had posted some ranty (private) Facebook posts about how Trump was autocratic, narcissistic, and fascist. But conspiracy theorists turned that into a grand conspiracy theory that he rigged the vote.

Coomer sued a bunch of folks over the defamation, including the Trump campaign, because both Donald and Eric (of course) played up the nonsense conspiracy. Trump filed an anti-SLAPP motion to try to kill the lawsuit. For someone who wanted to open up our libel laws, Trump seems quick to use anti-SLAPP laws to get rid of lawsuits when he's sued for defamation.

The district court rejected the anti-SLAPP motion, and the appeals court has now reviewed the case, mostly upholding the lower court's opinion. This means that most of the defamation claims can move forward, as the anti-SLAPP motion fails.

However, and this is the important part, the anti-SLAPP motion wins regarding two retweets on Section 230 grounds. As Goldman detailed, the lower court was just fundamentally wrong on the 230 question regarding retweets:

In earlier proceedings, the district court denied the Section 230 defense for the Trumps because the CDA does not apply to information that a user knew or had reason to know was defamatory.'" That interpretation of Section 230 is obviously wrong, and the appeals court simply replies that case law from other jurisdictions is uniformly to the contrary." (Cites to In re Facebook, Barrett v. Rosenthal, and Zeran v. AOL).

Goldman dug out the two tweets in question so I'll just use his screenshots rather than having to go get them myself:

Now, there is a legitimate question here whether or not the text added by either Trump is defamatory. Because the content that you, yourself, create is not protected by 230. But, here, the court found that the defamatory content was not from either Trump, but from the third party they were quoting/sharing.

First, neither Eric Trump's nor President Trump's tweet included any statement beyond the information in the article and video they shared. See id. (indicating that [h]ad [the defendant] just posted the link," the post might be protected under the CDA). Eric Trump's tweet stated simply, Eric Coomer - Dominions Vice President of U.S. Engineering - Don't worry about the election, Trump's not gonna win. I made f*cking sure of that!'" That quote (as well as Coomer's name and title) was pulled verbatim from the article, which unmistakably attributed the quote to Coomer. The tweet therefore conveyed only information provided by another information content provider." 47 U.S.C. 230(c)(1). President Trump's tweet said even less, merely quoting the segment's title, Dominion-izing the Vote," and making no mention of Coomer at all.

Second, the district court's conclusion that the CDA does not apply to information that a user knew or had reason to know was defamatory" finds no support in the text of the CDA or case law applying it.18 Indeed, case law from other jurisdictions is uniformly to the contrary. See In re Facebook, Inc., 625 S.W.3d 80, 89-93 (Tex. 2021) (noting national consensus" and overwhelming weight of authority" rejecting distinction between liability as a speaker or publisher and liability as a distributor) (citations omitted); Barrett v. Rosenthal, 146 P.3d 510, 517-20, 518 n.9 (Cal. 2006) (citing cases); Zeran v. Am. Online, Inc., 129 F.3d 327, 331-33 (4th Cir. 1997).

As the court (and Goldman) note, the district court made a bizarre decision to rely on Clarence Thomas' random, unbriefed blogging about Section 230, as if it were a statement that means anything. And, as the Colorado state appeals court notes, that's not how any of this actually works:

The district court relied exclusively on Justice Thomas's statement respecting the denial of certiorari in Malwarebytes, Inc. v. Enigma Software Group, 592 U.S. ___, ___, 141 S. Ct. 13, 15-16 (2020) (published order). That statement - the statement of a single Justice, not a decision of the Court - is contrary to the position taken by every existing judicial decision" of which we are aware. In re Facebook, 625 S.W.3d at 91. But even that statement would only support a know or reason to know" exception for distributors - a term that traditionally encompassed actors like newspaper vendors and booksellers who distribute the publications of others. See Malwarebytes, 592 U.S. at ___, 141 S. Ct. at 15-16; Barrett, 146 P.3d at 513. Whether or not that term might include [i]nternet platforms" that do no more than host content published by third parties, not even Justice Thomas's statement extends socalled distributor liability" to the individual users who post that content. See Malwarebytes, 592 U.S. at ___, 141 S. Ct. at 14-15 (questioning sweeping protection to [i]nternet platforms").

Thus, because the two tweets by Eric Trump and President Trump consisted solely of information provided by another information content provider," 47 U.S.C. 230(c)(1), Coomer's claim against the Trump Campaign may not be based on those tweets.

So, on the whole, this is a good overall ruling. Section 230 continues to protect users (as the law promises!) for retweeting/sharing third-party content. That's the right result. But the defamation case against Trump for things he actually said himself continues to move forward. This is the proper distinction. You're not liable for third-party speech, you're just liable for your own speech.

That said, as Goldman notes, the ruling is not great in some other regards. Mainly, it doesn't cite the long list of cases that say that retweeting is protected by 230. Also, the court could have done more to distinguish the different content in the two tweets at issue, as Goldman describes:

Bad: The court didn't distinguish between Eric's quote of the defamatory line and Donald's non-reference to Coomer. Another election interference case held that quote-tweeting did not qualify for Section 230 protection when the newly added material was allegedly defamatory (Dominion v. Byrne). From my perspective, a tweet that includes a verbatim quote of a third-party linked article should qualify for Section 230. See the very on-point Roca v. PissedConsumer decision, unfortunately not cited by the court. However, the court equated Donald's non-reference to the defamation and Eric's repeating of the defamatory claim without justifying that equation.

But, there is also a larger point here: Trump himself has been the leader of the pack in calling for the repeal of Section 230 entirely.

And yet, here he is, using Section 230 to protect himself from (part of) a defamation lawsuit (where, again, he had previously asked for harsher defamation laws). It's almost as if Trump has no idea what he's advocating for beyond some sort of weird, misdirected rage at anything that momentarily holds him back, without ever considering the larger consequences of his actions. Almost.