In CDT v. Trump, the District Court concluded that CDT's First Amendment claims against President Trump did not specify a concrete or imminent injury, and that CDT therefore lacked legal standing to bring its claims. As the court explained, Article III precedents require an organization making a claim to sufficiently allege a demonstrable injury to a party's activities, and that "a mere setback ... to abstract social interests" is insufficient. Additionally, the court concluded that CDT's alleged injury from the EO were not imminent but conjectural or hypothetical. The court observed that the EO doesn't apply to private parties but "only sets a course of government process into motion." The EO, for instance, directed NTIA to "file a petition for rulemaking . . . requesting that the FCC expeditiously propose regulations" regarding the meaning and application of Section 230. According to the court, speculative future government action through that process is not enough to establish Article III standing.
The court in CDT v. Trump also concluded that the injunctive and declaratory relief CDT sought are unavailable against the President – the lone defendant named in the case. And the court determined that even if Article III standing were satisfied, CDT's claims still were unripe for adjudication. The result in CDT v. Trump was similar to the result reached in October 2020 by the U.S. District Court for the Northern District of California. In Rock the Vote v. Trump, the court concluded that the party bringing First Amendment challenges against EO 13,925 lacked Article III standing.
In sum, the dismissals of these First Amendment challenges to EO 13,925 were resounding, and the parties raising them resorted to standing arguments that were so thin as to appear silly. These court decisions are reminders of a broader point that many First Amendment-related claims about Section 230 are off-base. As Free State Foundation President Randolph May explained in his November 2020 Perspectives from FSF Scholars paper, "narrowing Section 230 is not necessarily a First Amendment violation." It is one thing for government to mandate what a private actor must say, but it is something else for the government to confer special immunity on private actors from the consequences to third parties of their speech-related conduct. And as CDT v. Trump and Rock the Vote v. Trump show, it is altogether another thing for government agencies to undertake a process to consider what the terms of Section 230 mean and how they apply – and which may or may not lead to some sort of government action.
For more on the FCC's authority to issue interpretations of Section 230's terms as well as discussion of First Amendment-related claims, see the Free State Foundation's public comments and reply comments filed in the Commission's proceeding.
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