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Feds back landmark internet law under assail in Trump suit against Twitter

A prominent First Amendment scholar says there is nothing frivolous in the claim that federal lawmakers unconstitutionally encouraged internet platforms to restrict speech.

SAN FRANCISCO (CN) — The U.S. Department of Justice will intervene in former President Donald Trump’s lawsuit against Twitter to defend the constitutionality of a landmark internet law that Trump claims violates the First Amendment.

“The United States hereby intervenes in this action for the limited purpose of defending the constitutionality of Section 230(c) of the Communications Decency Act of 1996,” U.S. Justice Department lawyer Joshua Kolsky wrote in a notice to the federal judge overseeing Trump’s lawsuit Thursday.

The 1996 legal provision that Trump is challenging shields internet platforms like Twitter from liability over decisions they make to censor certain content or block users.

The former president has been heaping criticism on social media platforms after he was permanently banned from Twitter and indefinitely suspended by Facebook and Google-owned YouTube following the Jan. 6 attack on the U.S. capital. In banning Trump, the social networks cited fears that he would use their platforms to incite further violence.

In three class actions filed against the tech giants in July, Trump accuses the social media networks of restricting “constitutionally protected speech” with impunity.

Several legal experts have called the suits meritless, noting that the First Amendment only applies to government entities, not private companies like Facebook and Twitter.

But UCLA law professor Eugene Volokh, a renowned First Amendment scholar, said Trump’s attack on Section 230’s legality is not entirely frivolous. At the time Section 230 was enacted in 1996, the goal was to encourage internet platforms to restrict certain content “to stem what was seen as the coming flood of indecent material online,” Volokh said in a phone interview Thursday.

Volokh said a legitimate argument could be made that by changing liability laws to encourage the suppression of private speech, federal lawmakers violated the First Amendment.

He compared it to a local police department encouraging a landlord to enter a tenant’s home to search for marijuana, even though the police lack enough evidence to get a search warrant.

“Because the government encouraged it, it becomes a government action and becomes potentially a First Amendment violation,” Volokh said.

But another law professor who has researched and written extensively on legal issues related to Section 230 disagrees with that assessment.

Santa Clara University law professor Eric Goldman said he considers the arguments asserted in Trump’s lawsuit to be “garbage.”

According to Goldman, Congress is allowed to create “speech enhancing statutes” like Section 230 that free internet platforms to make their own content decisions without fear of lawsuits that could put them out of business.

Quintessential services that people associate with the internet like consumer reviews, user-edited encyclopedias and interactive social media networks would disappear without Section 230, Goldman said. That’s because imposing liability for content decisions would force online platforms to operate more like print media, he explained.

“If Twitter tried to run its business as a traditional publisher, imagine Twitter but with a six-hour delay before each post,” he said. “That’s not Twitter.”

According to Goldman, those are the values the federal government is aiming to protect by interfering in Trump’s lawsuit to defend the landmark 1996 law.

Trump made two failed attempts to change Section 230 as president when he signed a since-rescinded executive order calling for changes to internet platforms’ liability and when he vetoed a defense spending bill because it did not include a provision repealing the 25-year-old law.

This isn’t the first time the Justice Department has intervened in a case challenging the constitutionality of Section 230. Over the last 18 months, the government has intervened in two federal class actions that accuse YouTube of censoring or limiting the reach of videos made by Black and LGBTQ content creators. In both cases, the DOJ cited the Ninth Circuit’s February 2020 decision in Prager v. Google, which held that private entities like YouTube are not bound by the First Amendment.

“The Ninth Circuit has squarely held that YouTube is not a state actor capable of violating the First Amendment … and, accordingly, § 230(c) does not deprive plaintiff of a First Amendment claim they would otherwise be able to maintain against YouTube,” the DOJ wrote in a March 2021 legal filing in Newman v. Google, which claims YouTube uses racially biased algorithms.

Trump’s lawsuit against Twitter was moved from Florida to San Francisco last month after a federal judge in Miami granted Twitter’s request to transfer the case based on a forum-selection clause in the social media giant’s terms of service.

The Justice Department has asked U.S. District Judge James Donato, who is overseeing the case in San Francisco, to set a deadline of Dec. 9 for the government to submit written arguments defending the constitutionality of Section 230.

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