Section 230, Which Donald Trump Wants Repealed, Protects Donald Trump For Retweeting
from the section-230-working-properly dept
Donald Trump, who has demanded both that we “open up our libel laws” and that we “repeal Section 230,” was just protected from a defamation claim thanks to Section 230. How about that?
One thing that many people forget (or deliberately ignore?) regarding Section 230 is that it not only protects “Big Tech” as some people claim, and not just protects “websites,” but it also protects users of websites when they share or repost content. Section 230 protects all of us for when we repost someone else’s content.
No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.
Some people feel this is problematic, but it’s actually quite important. People may randomly forward an email or retweet something, and that should be protected under Section 230. In most cases, such email forwarding or retweeting would be unlikely to meet the actual malice standard for defamation. The difference between getting a case dismissed under Section 230 grounds as opposed to having to prove there wasn’t actual malice could be on the order of hundreds of thousands of dollars.
This stuff matters.
Section 230’s protections for users are an important part of why Section 230 is valuable.
And now, somewhat ironically, it has protected Donald Trump and his fail-son Eric from defamation claims for retweeting nonsense. Now, folks who dislike Trump may not like this, but it’s the right result. The general retweets should absolutely be protected by Section 230 (and if you’re upset about this, just note that the case includes lots of other statements made by Trump that weren’t tossed out at this stage and will proceed forward).
Professor Eric Goldman details the Section 230 bits of this case. Both Eric Trump and Donald Trump retweeted or quote-tweeted some nonsense about Eric Coomer, a Dominion Voting Systems employee who became embroiled in a nonsense conspiracy theory after the 2020 election. If you want the full details of the story, the NY Times Magazine did a big feature article on Coomer’s situation back in 2021.
Part of the conspiracy theory were the false claims that Coomer was a part of “Antifa” (a thing that does not, in fact, exist) and took part in a phone call suggesting that he had rigged the voting machines. That was absolute nonsense. Coomer had posted some ranty (private) Facebook posts about how Trump was autocratic, narcissistic, and fascist. But conspiracy theorists turned that into a grand conspiracy theory that he rigged the vote.
Coomer sued a bunch of folks over the defamation, including the Trump campaign, because both Donald and Eric (of course) played up the nonsense conspiracy. Trump filed an anti-SLAPP motion to try to kill the lawsuit. For someone who wanted to open up our libel laws, Trump seems quick to use anti-SLAPP laws to get rid of lawsuits when he’s sued for defamation.
The district court rejected the anti-SLAPP motion, and the appeals court has now reviewed the case, mostly upholding the lower court’s opinion. This means that most of the defamation claims can move forward, as the anti-SLAPP motion fails.
However, and this is the important part, the anti-SLAPP motion wins regarding two retweets on Section 230 grounds. As Goldman detailed, the lower court was just fundamentally wrong on the 230 question regarding retweets:
In earlier proceedings, the district court denied the Section 230 defense for the Trumps because “the CDA does not apply to information that a user ‘knew or had reason to know was defamatory.’” That interpretation of Section 230 is obviously wrong, and the appeals court simply replies that “case law from other jurisdictions is uniformly to the contrary.” (Cites to In re Facebook, Barrett v. Rosenthal, and Zeran v. AOL).
Goldman dug out the two tweets in question so I’ll just use his screenshots rather than having to go get them myself:
Now, there is a legitimate question here whether or not the text added by either Trump is defamatory. Because the content that you, yourself, create is not protected by 230. But, here, the court found that the defamatory content was not from either Trump, but from the third party they were quoting/sharing.
First, neither Eric Trump’s nor President Trump’s tweet included any statement beyond the information in the article and video they shared. See id. (indicating that “[h]ad [the defendant] just posted the link,” the post might be protected under the CDA). Eric Trump’s tweet stated simply, “Eric Coomer — Dominions Vice President of U.S. Engineering — ‘Don’t worry about the election, Trump’s not gonna win. I made f*cking sure of that!’” That quote (as well as Coomer’s name and title) was pulled verbatim from the article, which unmistakably attributed the quote to Coomer. The tweet therefore conveyed only “information provided by another information content provider.” 47 U.S.C. § 230(c)(1). President Trump’s tweet said even less, merely quoting the segment’s title, “Dominion-izing the Vote,” and making no mention of Coomer at all.
Second, the district court’s conclusion that the CDA does not apply to information that a user “knew or had reason to know was defamatory” finds no support in the text of the CDA or case law applying it.18 Indeed, case law from other jurisdictions is uniformly to the contrary. See In re Facebook, Inc., 625 S.W.3d 80, 89-93 (Tex. 2021) (noting “national consensus” and “overwhelming weight of authority” rejecting distinction between liability as a speaker or publisher and liability as a distributor) (citations omitted); Barrett v. Rosenthal, 146 P.3d 510, 517-20, 518 n.9 (Cal. 2006) (citing cases); Zeran v. Am. Online, Inc., 129 F.3d 327, 331-33 (4th Cir. 1997).
As the court (and Goldman) note, the district court made a bizarre decision to rely on Clarence Thomas’ random, unbriefed blogging about Section 230, as if it were a statement that means anything. And, as the Colorado state appeals court notes, that’s not how any of this actually works:
The district court relied exclusively on Justice Thomas’s statement respecting the denial of certiorari in Malwarebytes, Inc. v. Enigma Software Group, 592 U.S. ___, ___, 141 S. Ct. 13, 15-16 (2020) (published order). That statement — the statement of a single Justice, not a decision of the Court — is contrary to the position taken by “every existing judicial decision” of which we are aware. In re Facebook, 625 S.W.3d at 91. But even that statement would only support a “know or reason to know” exception for distributors — a term that traditionally encompassed actors like newspaper vendors and booksellers who distribute the publications of others. See Malwarebytes, 592 U.S. at ___, 141 S. Ct. at 15-16; Barrett, 146 P.3d at 513. Whether or not that term might include “[i]nternet platforms” that do no more than host content published by third parties, not even Justice Thomas’s statement extends socalled “distributor liability” to the individual users who post that content. See Malwarebytes, 592 U.S. at ___, 141 S. Ct. at 14-15 (questioning “sweeping protection to [i]nternet platforms”).
Thus, because the two tweets by Eric Trump and President Trump consisted solely of “information provided by another information content provider,” 47 U.S.C. § 230(c)(1), Coomer’s claim against the Trump Campaign may not be based on those tweets.
So, on the whole, this is a good overall ruling. Section 230 continues to protect users (as the law promises!) for retweeting/sharing third-party content. That’s the right result. But the defamation case against Trump for things he actually said himself continues to move forward. This is the proper distinction. You’re not liable for third-party speech, you’re just liable for your own speech.
That said, as Goldman notes, the ruling is not great in some other regards. Mainly, it doesn’t cite the long list of cases that say that retweeting is protected by 230. Also, the court could have done more to distinguish the different content in the two tweets at issue, as Goldman describes:
Bad: The court didn’t distinguish between Eric’s quote of the defamatory line and Donald’s non-reference to Coomer. Another election interference case held that quote-tweeting did not qualify for Section 230 protection when the newly added material was allegedly defamatory (Dominion v. Byrne). From my perspective, a tweet that includes a verbatim quote of a third-party linked article should qualify for Section 230. See the very on-point Roca v. PissedConsumer decision, unfortunately not cited by the court. However, the court equated Donald’s non-reference to the defamation and Eric’s repeating of the defamatory claim without justifying that equation.
But, there is also a larger point here: Trump himself has been the leader of the pack in calling for the repeal of Section 230 entirely.
And yet, here he is, using Section 230 to protect himself from (part of) a defamation lawsuit (where, again, he had previously asked for harsher defamation laws). It’s almost as if Trump has no idea what he’s advocating for beyond some sort of weird, misdirected rage at anything that momentarily holds him back, without ever considering the larger consequences of his actions. Almost.
Filed Under: 1st amendment, anti-slapp, clarence thomas, colorado, defamation, donald trump, eric coomer, eric trump, free speech, retweeting, section 230, users
Companies: dominion voting systems
Comments on “Section 230, Which Donald Trump Wants Repealed, Protects Donald Trump For Retweeting”
Though to be fair…
Trump’s incoherence and hypocrisy is a “dog-bites-man” story. Trump’s only principle is “What’s good for Donald John Trump at this moment in time, right now?”
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Yep. What’s right or wrong for Trump is the case of the day, and can change any day without further notice.
Fortunately, Trump stays exactly the same man. It gives a glimpse of what to expect from him in the next years, months, weeks or even days.
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Exactly. And, Trump is just as boring now as was was before.
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In the UK, the word ‘trump’ means ‘fart’, apparently. On that basis, it seems to me the guy’s well named. 😁
Trump is his lawyer's worst client
Here, you have to distinguish between good (or even ‘adequate’) lawyering on the part of the lawyer, and the ignorant opinions of the client.
Trump (to press): I want to abolish section 230 to get political capital and gain supporters by ragging on this imaginary enemy I invented!
But, in a conference with his lawyer…
Lawyer: I can absolutely get you off this defamation charge by using section 230.
Trump: Sure, let’s do that, whatever that is. Where’s my hamburger!? This is the best restaurant. Absolutely the best.
Lawyer: … sir, er, Mr President, it would improve the case if you didn’t slag section 230 off in public.
Trump: Why? The courts aren’t the public. Nobody cares!
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Specify
Mostly, when people say that section 230 should be repealed or reformed, we need to clarify. Specifically, we ought to keep (c)(1) and (c)(2)(B), but eliminate the (c)(2)(A) “otherwise objectionable” language, as well as the “actual malice” standard for public figures in libel law.
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Yes or no: Do you believe the government should have the right to compel any interactive web service into hosting any third-party speech that it would otherwise refuse to host?
And before you answer “no”, you should remember that your comment contains this sentence fragment…
…and you should understand that eliminating 47 U.S.C. § 230(c)(2)(a) would effectively prevent platforms from getting rid of speech that is “objectionable” to platform owners but otherwise violates no laws. An answer of “no” to that One Simple Question would undermine the position you have now openly, knowingly, and sincerely taken on Section 230.
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You keep trying to reason with lemmings that follow Trump…
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This seems too “smart” for Koby’s usual ravings (Though it is worth noting that I have seen Koby actually make sane/non-trollish statements… though it is rare). I wonder if he got someone else to write his talking points?
Or maybe he got chewed out for being to0 transparent in his nonsense.
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Or maybe he got AI to write his comments for him.
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Koby, you are not being very honest here. The “or otherwise objectionable” is what allows that sections to be constitutional (otherwise that whole section runs face first into the first Amendment)
Removing the bold portion would show an intent to limit a companies ability to say “this speech isn’t welcome here”.
Basically what you are saying is you want to control how other people moderate (aka how private property is managed by private organizations). Cute subterfuge though.
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Go ahead, I dare you; then people can finally sue the rest of the GOP’s pathetic “news” organizations out of existence since they won’t be able to rely on it.
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Unless the GOP has the judiciary captured. We already know SCOTUS is effectively a group of unelected politicians in robes.
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Koby, why do you hate the First Amendment, and by extension, the right to free association and private property rights?
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Because they recognize the rights of other people and Koby is only interested in his own rights.
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Because Koby doesn’t realize that he only has such rights while legislation exists to protect not only his rights, but also the rights of others.
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Bro, I would pay good money to see Trump try to parse that question.
Protip use bright colours and big crayons.
It also helps that his base honestly believes that the law doesn’t apply to him and if they dare treat him like everyone else its a special attack just on him.
You could compile a LONG fucking list of things he has written & said that without 230 would have his ass in court & it still wouldn’t make an impression.
Its like the dog who finally caught the car… and promptly was run over.
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Conservative speech would likely face more moderation than it does now if conservatives ever repealed 230. What company would want to put itself in legal hot water by hosting the kind of speech that regularly gets conservatives banned from social media sites?
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I was thinking about all the stuff he retweets without thinking & the lawsuits he himself would be facing.
Magic Words
So as long as I preface any defamatory statement I make with “People are saying…” it’s all good?
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You may have to prove that other people were actually saying such a thing.
It’s interesting that Trump offered Section 230 as a supposed defense for violating the gag order in his New York election interference case.
Justice Juan Merchan was having none of it, particularly when the prosecution pointed out that he changed the wording – and meaning – of the statement that he was reposting.
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230 might be a defense for a defamation claim, but I doubt it would hold up as a defense for potential witness/jury tampering.
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Yet I remember when you were arguing that Section 230 shouldn’t protect people against defamation claims if they retweeted defamatory statements when they didn’t know they weren’t true.
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That would be a ridiculous end-run around the gag order.
“But Your Honor, I didn’t say anything attacking the witness, I just retweeted an attack from someone else.“
#45 needs to see that § 230 protected him from yet more lawsuits, and the only way is if he “wins” several such cases. Aw, Hell, what am I talking about… this is #45, he’ll need to be saved in at least a hundred cases, before he finally gets the point of § 230.
Let us not forget where all this anti-§ 230 stuff came from originally.
#45’s main squeeze was, and still is, none other than Devin Nunes, and his side-kick Steven Biss. Both of whom could not win a court case to save Nunes’ soul, come Hell or High water. Instead of accepting responsibility (let alone neither one of them are even close to acting like adults in the first place), they placed the blame for their loses squarely on § 230, thus proving that they didn’t understand how it works. And repeatedly failing to get a clue, i.e. continually suing various entities and persons for perceived slights. (And notice here, no court ever got to the matter of using the truth as a defense, the higher priority § 230 took care of that potential issue/defense.)
One rule for me, another for thee
It makes perfect sense when you understand that to people like Trump 230, much like every other law or principle is only supposed to serve them in their minds. The second it helps someone they don’t like it’s ‘broken’ and ‘needs to be fixed’.
““Antifa” (a thing that does not, in fact, exist)”
And the earth is flat…