Arguing that President Donald Trump’s Executive Order on Preventing Online Censorship violates the First Amendment as it curtails and chills “constitutionally protected speech of online platforms and individuals”, Washington, DC-based Center for Democracy & Technology filed a lawsuit against Trump on June 2. CDT argues that the Order retaliates against Twitter for fact-checking Trump’s tweet about California’s mail-in ballot plans and seeks to chill the online speech of other speakers, and as such has broader repercussions for the First Amendment.

In response to the lawsuit, Twitter’s Public Policy account tweeted its support:

The lawsuit wants the court to declare the Execute Order invalid, and to issue an order prohibiting government officials from following it. In announcement of the post, CDT President and CEO Alexandra Givens said that the Order is designed to inhibit social media platforms from “fighting misinformation, voter suppression, and the stoking of violence on their platforms.” She also said that online content moderation could not be done “according to the President’s whims” and that blocking this order is crucial to ensuring the “integrity of the 2020 election”.

CDT’s lawsuit argues that commentary about statements and actions of public officials “lies at the very core of the speech protected by the First Amendment”. According to the petition, the First Amendment further prohibits government officials from using government power to retaliate against people or entities who engage in such protected speech. It also prevents the government from using “threat of liability or reprisals directed at intermediaries” to censor lawful speech.

Problems with the Order’s interpretation of Section 230

According to the lawsuit, the Executive Order misinterprets Section 230 of the Communications Decency Act as it:

  • Circumvents the role of Congress and the courts in enacting and interpreting the Section. Instead, it empowers multiple government agencies to judge companies’ content moderation practices.
  • Warns hosts of third-party content that content moderation decisions that the government disagrees with could result in penalties and retributive actions, including loss of safe harbour. The Order threatens withdrawal of government advertising funds.