Ctr. for Democracy & Tech. v. Trump

• Decision Date: 11 December 2020
• Docket Number: Case No. 1:20-cv-01456 (TNM)
• Court: U.S. District Court — District of Columbia
• Parties: CENTER FOR DEMOCRACY & TECHNOLOGY, Plaintiff, v. Donald J. TRUMP, in his official capacity as President of the United States of America, Defendant.

507 F.Supp.3d 213

CENTER FOR DEMOCRACY & TECHNOLOGY, Plaintiff,

v.Donald J. TRUMP, in his official capacity as President of the United States of America, Defendant.

Case No. 1:20-cv-01456 (TNM)

United States District Court, District of Columbia.

Signed December 11, 2020

Douglas Allen Smith, Pro Hac Vice, John Nadolenco, Sandor Anthony Callahan, Pro Hac Vice, Mayer Brown LLP, Los Angeles, CA, Lauren R. Goldman, Pro Hac Vice, Mayer Brown LLP, New York, NY, Andrew John Pincus, Mayer Brown LLP, Washington, DC, for Plaintiff.

Indraneel Sur, U.S. Department of Justice, Washington, DC, for Defendant.

MEMORANDUM OPINION

TREVOR N. McFADDEN, U.S.D.J.

This case concerns President Trump's "Executive Order on Preventing Online Censorship." Exec. Order No. 13,925, 85 Fed. Reg. 34,079 (May 28, 2020) ("Order 13,925" or the "Order"). Plaintiff Center for Democracy & Technology ("CDT") has sued the President, claiming that Order 13,925 violates the First Amendment. CDT asserts that Order 13,925 injures its interest in promoting free speech on the internet and claims that it has used its resources to counter the Order. It asks the Court to declare Order 13,925 invalid and to enjoin the President from enforcing it.

But Order 13,925 is most notable at this point for what it does not do. It imposes no obligation on CDT (or any other private party), but it merely directs government officials to take preliminary steps towards possible lawmaking. CDT's claimed injury is not concrete or imminent and is thus insufficient to establish Article III standing. Even if CDT managed to clear the standing hurdle, it faces redressability and ripeness problems too. The Court will therefore dismiss this case for lack of jurisdiction.

I.

Order 13,925 expresses the Trump Administration's policy that "[f]ree speech is the bedrock of American democracy" and that "large online platforms, such as Twitter and Facebook, as the critical means of promoting the free flow of speech and ideas today, should not restrict protected speech." Order 13,925 §§ 1, 4(a). The Order asserts that "[o]nline platforms are engaging in selective censorship." Id. § 1. It explains that § 230(c) of the Communications Decency Act—which, as relevant here, provides immunity from liability to online platforms for restricting some content on their sites—should be clarified.¹ Order 13,925 § 2(a).

Some of Order 13,925's provisions implicate federal agencies. For example, the Order directs the Secretary of Commerce to "file a petition for rulemaking with the Federal Communications Commission (FCC) requesting that the FCC expeditiously propose regulations to clarify" the scope of § 230(c). Id. § 2(b). It also instructs the Federal Trade Commission ("FTC") to "consider taking action, as appropriate and consistent with applicable law, to prohibit unfair or deceptive acts or practices in or affecting commerce," to "consider whether complaints [about online platform censorship] allege violations of law," and to "consider developing a report describing such complaints." Id. § 4(b)–(d).

Order 13,925 includes other directives aimed at government officials. It instructs "[t]he head of each executive department and agency" to "review its agency's Federal spending on advertising and marketing paid to online platforms" and then requires the Department of Justice to "assess whether any online platforms are problematic vehicles for government speech due to viewpoint discrimination, deception to consumers, or other bad practices." Id. § 3(a), (c). The Order also charges the Attorney General with "establish[ing] a working group regarding the potential enforcement of State statutes that prohibit online platforms from engaging in unfair or deceptive acts or practices" and "develop[ing] a proposal for Federal legislation that would be useful to promote the policy objectives of this order." Id. §§ 5(a), 6.

CDT describes itself as "a nonprofit advocacy organization" that represents "the public interest in the creation of an open, innovative, and decentralized Internet" and "promotes the constitutional and democratic values of free expression, privacy, and individual liberty." Compl. ¶ 68, ECF No. 1. It contends that "advocating in favor of First Amendment protection for speech on the Internet" is "[c]ritical to [its] mission." Id. ¶ 69. According to CDT, it "consistently urges courts to defend Americans’ rights to express themselves online." Id. ¶ 16.

Five days after President Trump issued Order 13,925, CDT sued the President in his official capacity, claiming that the Order violates the First Amendment. See, e.g. , id. ¶¶ 17, 77, 81–82. It asserts that Order 13,925 "constitutes retaliatory action" in violation of the First Amendment and "chill[s] the constitutionally protected speech of online content platforms." Id. ¶¶ 77–78, 81. CDT cites the President's tweets in response to Twitter adding an "addendum"—a large exclamation point with a link to more news sources—to two of the President's tweets about mail-in ballots. Id. ¶¶ 32–34, 37. CDT also argues that Order 13,925 "injures" its "First Amendment interest and causes it to divert resources to safeguarding the First Amendment rights of individuals and Internet intermediaries that the Executive Order places under attack." Id. ¶ 82. For relief, CDT seeks a declaration that Order 13,925 is invalid and asks the Court to enjoin the President from implementing or enforcing it. Id. at 26.

The President moves to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(1). Def.’s Mot. to Dismiss ("Def.’s Mot.") at 1, ECF No. 17.² The motion is ripe for disposition.

II.

To survive a motion to dismiss under Rule 12(b)(1), a plaintiff has the burden to establish the predicates to jurisdiction, including "the irreducible constitutional minimum of standing." Lujan v. Defs. of Wildlife , 504 U.S. 555, 560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). The Court "assume[s] the truth of all material factual allegations in the complaint and construe[s] the complaint liberally, granting plaintiff the benefit of all inferences that can be derived from the facts alleged." Am. Nat'l Ins. Co. v. FDIC , 642 F.3d 1137, 1139 (D.C. Cir. 2011) (cleaned up). Thus, "[a]t the pleading stage, general factual allegations of injury resulting from the defendant's conduct may suffice." Lujan , 504 U.S. at 561, 112 S.Ct. 2130.

Because "a Rule 12(b)(1) motion imposes on the court an affirmative obligation to ensure that it is acting within the scope of its jurisdictional authority," though, a plaintiff's factual allegations "will bear closer scrutiny in resolving a 12(b)(1) motion than in resolving a 12(b)(6) motion for failure to state a claim." Grand Lodge of Fraternal Ord. of Police v. Ashcroft , 185 F. Supp. 2d 9, 13–14 (D.D.C. 2001) (cleaned up). If a court determines that it lacks jurisdiction for any claim, it must dismiss that claim. Fed. R. Civ. P. 12(b)(1), (h)(3).

III.

The President argues that CDT's complaint must be dismissed because (A) CDT has not established Article III standing and (B) its claim is not prudentially ripe. The Court agrees.

A.

"The Constitution confers limited authority on each branch of the Federal Government," including the judiciary. Spokeo, Inc. v. Robins , ––– U.S. ––––, 136 S. Ct. 1540, 1546–47, 194 L.Ed.2d 635 (2016). Article III "limit[s] the judicial power to ‘Cases’ and ‘Controversies’ " and so "restricts it to the traditional role of Anglo-American courts, which is to redress or prevent actual or imminently threatened injury to persons caused by private or official violation of law." Summers v. Earth Island Inst. , 555 U.S. 488, 492, 129 S.Ct. 1142, 173 L.Ed.2d 1 (2009) ; see also The Federalist No. 83, at 432 (Alexander Hamilton) (Carey & McClellan eds., 2001) ("[T]he authority of the federal judicatures, is declared by the constitution to comprehend certain cases particularly specified. The expression of those cases, marks the precise limits beyond which the federal courts cannot extend their jurisdiction ...."). Constitutional standing "is built on separation-of-powers principles" and "serves to prevent the judicial process from being used to usurp the powers of the political branches." Clapper v. Amnesty Int'l USA , 568 U.S. 398, 408, 133 S.Ct. 1138, 185 L.Ed.2d 264 (2013) ; see also Carney v. Adams , ––– U.S. ––––, 141 S.Ct. 493, 499, 208 L.Ed.2d 305 (2020) (stating that "a plaintiff cannot establish standing by asserting an abstract general interest common to all members of the public" because "to find standing based upon that kind of interest would significantly alter the allocation of power at the national level, with a shift away from a democratic form of government" (cleaned up)).

"To establish Article III standing, an injury must be concrete, particularized, and actual or imminent; fairly traceable to the challenged action; and redressable by a favorable ruling." Clapper , 568 U.S. at 409, 133 S.Ct. 1138 (cleaned up). Organizations, like individuals, must satisfy these elements. PETA v. U.S. Dep't of Agric. , 797 F.3d 1087, 1093 (D.C. Cir. 2015). The Court considers (1) whether CDT has asserted an injury in fact that is sufficiently concrete and imminent, and (2) whether CDT's alleged harm is redressable.³

1.

a.

First, concreteness. When determining the concreteness of an organization's injury in particular, courts consider: (1) "whether the agency's action or omission to act injured the organization's interest" and (2) "whether the organization used its resources to counteract that harm." Id. at 1094 (cleaned up). The Court "need not address the second prong of this inquiry" if "it is clear" that the organization "has not sufficiently alleged an injury to its interest." Food & Water Watch, Inc. v. Vilsack , 808 F.3d 905, 919 (D.C. Cir. 2015). "The key issue" when considering organizational standing "is whether [the organization] has suffered a concrete and demonstrable injury to [its] activities," rather than "a mere setback to ... abstract...