Defending Voters’ Right to Receive Information about Voting
Protect Democracy, along with the Electronic Frontier Foundation and Cooley LLP, is challenging the President’s “Executive Order on Preventing Online Censorship” in U.S. District Court for the Northern District of California on behalf of the voter advocacy organizations Common Cause, Rock the Vote, and Voto Latino, as well as the watchdogs Free Press and MapLight. The unlawful Executive Order is an attempt to inhibit voters’ access to information on social media about mail-in voting, and thus violates the First Amendment. The Order was issued in direct response to Twitter appending a note that reads “[g]et the facts about mail-in ballots” to one of the President’s tweets. It singles out several social media companies by name and threatens them with substantial consequences for fact-checking Trump’s false statements. This act of retaliation and content-based restriction on speech is not permitted by the First Amendment.
The executive order is designed to chill social media companies from moderating the President’s content or other content in a way that he doesn’t like, particularly correcting his false statements about elections. In fact, the President has posted multiple tweets since issuing his executive order that are similar to the one that Twitter attached a note to in May, but which Twitter has not flagged (exs. 1, 2, 3). As it stands, the President is abusing the power of his office to illegally bully social media companies into not exercising their First Amendment right to fact check him. And this, in turn, violates the First Amendment right of the plaintiffs to receive information that corrects or contextualizes inaccurate statements about voting alternatives.
For additional background, read Protect Democracy’s press release about the complaint here.
Who are the plaintiffs?
Common Cause is a nonpartisan, grassroots organization dedicated to upholding the core values of American democracy. It works to create open, honest, and accountable government that serves the public interest; promote equal rights, opportunity, and representation for all; and empower all people to make their voices heard in the political process.
Rock the Vote is a nonpartisan nonprofit dedicated to building the political power of young people. For 30 years, Rock the Vote has revolutionized the way we use culture, technology, education, and activism to increase civic participation among young people. Since its founding, Rock the Vote has processed over 12 million voter registrations and empowered its voters with information and resources to turn them out at more than 30 points above the national youth average with approximately 60 percent voting for the first time. Rock the Vote works to modernize the civic process and fights to protect young people’s access to our democracy.
Voto Latino is a grassroots political organization focused on educating and empowering a new generation of Latinx voters, as well as creating a more robust and inclusive democracy. Through innovative digital campaigns, culturally relevant programs, and authentic voices, Voto Latino shepherds the Latinx community towards the full realization of its political power.
Free Speech is a nonpartisan, not-for-profit organization that believes that positive social change, racial justice, and meaningful engagement in public life require equitable access to technology, diverse and independent ownership of media platforms, and journalism that holds leaders accountable and tells people what’s actually happening in their communities.
MapLight is a nonprofit organization that reveals the influence of money in politics and fights online political deception.
How are they affected by the President’s executive order?
The order violates the plaintiffs’ First Amendment rights and causes them to divert resources, including to police platforms for the accuracy of speech, including speech related to voting; and to take measures to support the First Amendment rights of individuals and social media platforms that the plaintiffs rely on to further their mission of accurately informing voters.
The President’s order also violates the plaintiffs’ First Amendment rights by depriving them of their right to receive expression, including moderated content from online platforms, which is subject to ongoing and threatened retaliation by the government.
What is “the right to receive” speech?
The First Amendment “necessarily” protects “the right to receive information and ideas,” wrote a majority of the Supreme Court in Kleindienst v. Mandel. It prohibits the government from arbitrarily or vindictively limiting the stock of information from which members of the public may draw. Because, when there is a right to speak, “there is a reciprocal right to receive” that speech, as a High Court majority declared in Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc.
By violating social media companies’ First Amendment rights to speak and curate content, the President’s executive order also violates the First Amendment rights of Internet users, including the plaintiffs in the case, interfering with their right to receive the social media companies’ speech and curated content.
- Defendant’s Reply Memorandum in Support of Motion to Dismiss (October 14, 2020)
- Plaintiff’s Reply in Support of Motion for Preliminary Injunction (October 5, 2020)
- Defendant’s Motion to Dismiss & Opposition to Motion for Preliminary Injunction (September 23, 2020)
- Declaration of Kathleen Hartnett (September 11, 2020)
- Motion for a Preliminary Injunction (September 4, 2020)
- Press Release – Voter Advocates and Watchdogs Sue Trump Administration for Mail-In Voting Disinformation (August 27, 2020)
- Complaint (August 27, 2020)
Issie Lapowsky, “A new lawsuit against Trump’s Section 230 executive order argues it chills speech about voting,” Protocol (August 27, 2020)
Nandita Bose, “Voter advocacy groups file lawsuit against Trump’s social media executive order,” Reuters (August 27, 2020)
Justin Wise, “Voting rights groups sue Trump over executive order targeting social media companies,” The Hill (August 27, 2020)
Makena Kelly, “President Trump’s social media order will endanger voting rights, new lawsuit claims,” The Verge (August 27, 2020)
Emma Woollacott, “Trump Sued Over Social Media Order That ‘Threatens Censorship’ Over Mail-In Voting,” Forbes (August 28, 2020)