SAN FRANCISCO (CN) — Finding scant evidence that President Donald Trump’s threats have deterred Facebook and Twitter from fact-checking false claims of voter fraud, a federal judge signaled Wednesday he’s unlikely to block an executive order targeting social media immunity.
“Here’s my problem with the case,” U.S. District Judge William Orrick III said during a virtual hearing on a motion for a preliminary injunction to block Trump’s May 28 executive order on “preventing online censorship.”
“It’s not clear to me that the executive order does anything other than outline a policy goal from the president’s perspective regarding content management on the internet and telling agencies to further that goal,” Orrick said. “It’s not direct regulation or restriction of the platforms.”
Rock the Vote and four other voter-information and turnout groups sued the president in August, claiming his directive chills free speech by threatening to punish online platforms for adding warning labels to posts that contain falsehoods about mail-in voting and voter fraud.
The executive order was issued after Twitter flagged two of Trump’s May 26 tweets claiming that mail-in ballots are “substantially fraudulent” and that “this will be a Rigged Election.” Twitter slapped fact-checking labels on those tweets directing users to get information about mail-in voting from credible sources.
During the hearing Wednesday, Rock the Vote lawyer Kathleen Hartnett of Cooley LLP said Trump’s directive has already made online platforms like Twitter and Facebook more reluctant to warn their users about the president’s misinformation.
The failure to fact-check those falsehoods forces Rock the Vote and other groups to spend time and money combatting misinformation, which diverts scarce resources away from their core mission — to register and mobilize voters.
“Every second they spend fighting misinformation on online platforms, but for the online platforms not doing it because of the executive order, that’s time our clients are not spending on their core mission,” Hartnett argued.
The Department of Justice notes Twitter has placed warning labels on Trump’s tweets six times since the executive order was issued, but plaintiffs say the social media giant has failed to fact check some of Trump’s other false statements, and some of its warning labels lack links to credible sources of information.
Last week, Trump railed against social media giants Facebook and Twitter for limiting the reach of a New York Post story on a hacked email relating to an alleged scandal involving Democratic presidential candidate Joe Biden’s son after questions were raised about the story’s credibility.
“REPEAL SECTION 230!!!” Trump cried in an Oct. 14 tweet, referring to the portion of the Communications Decency Act that makes online platforms immune from lawsuits over content posted by their users.
The next day, FCC chair Arjit Pai announced the commission would start a rulemaking process to “clarify ambiguities” in Section 230.
Hartnett called that a clear example of Trump using the executive order to retaliate against platforms for exercising their First Amendment rights.
“Last week the president did not like something else Twitter did,” Hartnett said. “He railed against Section 230 again and announced in a speech that morning it should be stopped, and within hours the FCC initiated rulemaking.”
The executive order also calls for proposing legislation to change Section 230, and it requires federal agencies report how much they spend on social media advertising to ensure federal taxpayer dollars are not “financing online platforms that restrict free speech.”
Hartnett said the threat of curtailing government spending aims to dissuade social media platforms from fact-checking the president. She argued it has resulted in more misinformation being spread online, causing her clients to spend more time and money countering it and less time registering voters.
Defending the executive order, Justice Department lawyer James Luh said the plaintiffs have failed to establish that the president’s directive has caused online platforms to reduce their speech.
“It’s just a complaint that perhaps the platforms are not speaking as much as they otherwise should,” Luh said. “They haven’t shown that, but if they could, that would be a generalized grievance and couldn’t support standing [to sue].”
Judge Orrick was receptive to that argument. He said he has not noticed social media companies changing their speech or behavior as a result of the executive order.
“It doesn’t seem like the platforms are all that cowed by it,” Orrick said.
The judge added he cannot block Congress from considering legislation to alter Section 230 or prevent the FCC from starting a rulemaking process to consider regulations. Only after a law is passed or a rule is enacted can it be reviewed by the court.
“The injuries seem speculative to me,” the judge said.
Other plaintiffs in the lawsuit include Voto Latino, Common Cause, Free Press and Maplight.