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 FOR THE DISTRICT OF COLUMBIA
December 11, 2020
TREVOR N. McFADDEN, U.S.D.J.
This case concerns President Trump’s “Executive Order on Preventing Online Censorship.”
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
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
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
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
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
Five days after President Trump issued Order 13,925, CDT sued the President in his official capacity, claiming that the Order violates the
II.
To survive a motion to dismiss under
Because “a
III.
The President argues that CDT’s complaint must be dismissed because (A) CDT has not established
“The Constitution confers limited authority on each branch of the Federal Government,” including the judiciary. Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1546–47 (2016).
“To establish
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 social interests,” which “is not sufficient.” Id. at 1093 (cleaned up).4
For the first consideration, there must be “a direct conflict between the defendant’s conduct and the organization’s mission.” Id. at 1095 (cleaned up). Additionally, “an organization must allege that the defendant’s conduct ‘perceptibly impaired’ the organization’s ability to provide services in order to establish injury in fact.” Turlock Irrigation Dist. v. FERC, 786 F.3d 18, 24 (D.C. Cir. 2015) (quoting Equal Rights Ctr. v. Post Props., Inc., 633 F.3d 1136, 1138-39 (D.C. Cir. 2011)). Perceptible impairment occurs “when the defendant’s conduct
If an organization alleges “only impairment of its advocacy,” that “will not suffice” to show standing. Turlock, 786 F.3d at 24; see also Food & Water Watch, 808 F.3d at 919 (“Our precedent makes clear that an organization’s use of resources for litigation, investigation in anticipation of litigation, or advocacy is not sufficient to give rise to an
CDT has not met its burden to show an injury to its interests. To begin, there does not appear to be a “direct conflict” between Order 13,925 and CDT’s stated mission. The Order expresses “the policy of the United States to foster clear ground rules promoting free and open debate on the internet.” Order 13,925 § 2(a). CDT asserts a similar mission—to “advocat[e] in favor of
CDT has not alleged that Order 13,925 has “perceptibly impaired” its “ability to provide services.” Turlock, 786 F.3d at 24 (cleaned up). It claims that because of the Order it will have to “devote substantial resources to”: “participating in the planned FCC rulemaking proceeding,”
This is plainly deficient. Circuit precedent is “clear that an organization’s use of resources for . . . advocacy is not sufficient to give rise to an
CDT alleges that these measures are “reactionary” and not part of its “normal advocacy efforts.” Pl.’s Opp’n at 24. But its statements elsewhere suggest otherwise. See, e.g., Compl. ¶ 71 (“The organization devotes significant resources to advocating in favor of individuals’ online free expression rights and the legal frameworks that support them, including evaluating proposals to amend the proposed laws on free speech online and challenging legislation that burdens individuals’ fundamental rights, holding public events, and communicating with policymakers in the Executive and Legislative Branches.”); Pl.’s Opp’n at 22 (“Advocating for free speech online before legislatures and administrative agencies and combating government efforts
CDT also says that it will have to devote resources to “informing the public” about its advocacy activities and “the potential consequences for protection of free speech online.” Compl. ¶ 73. Again, though, there is no recognizable injury where the organization does not expend resources “beyond those normally expended.” Food & Water Watch, 808 F.3d at 920 (cleaned up); accord EWG, 301 F. Supp. 3d at 172 (“Neither do the Plaintiffs’ educational efforts suffice, because this type of work is exactly what these organizations always do.”). And that does not appear to be the case here. See Compl. ¶ 71 (claiming that CDT “devotes significant resources to,” among other things, “holding public events”); Pl.’s Opp’n at 26 (explaining that Order 13,925 has caused CDT’s resources to be diverted from activities it would otherwise engage in, such as “public education” and “holding public events”).
PETA does not save CDT’s complaint. There, the D.C. Circuit held that PETA had met the organizational standing requirements to challenge “the USDA’s allegedly unlawful failure to apply the [Animal Welfare Act’s] general animal welfare regulations to birds.” 797 F.3d at 1095. The court held that PETA’s alleged injuries—the denial of (1) “access to bird-related” information and (2) “a means by which to seek redress for bird abuse”—were “concrete and specific to the work in which they are engaged.” Id. (cleaned up). It reasoned that the USDA’s inaction “impair[ed] PETA’s activities in a non-speculative manner by requiring PETA to divert and redirect its limited resources to counteract and offset” the agency’s conduct. Id. (cleaned up). For example, the court pointed to PETA’s allegations that it “ha[d] expended financial resources to investigate and respond to complaints about birds subjected to inhumane treatment”
CDT’s allegations are unlike PETA’s. PETA showed real expenditures—in particular, resources spent making up for the USDA’s failure to issue “AWA inspection reports” on birds, “the primary source of information relied on by PETA,” id. at 1096 (cleaned up)—apart from mere advocacy. Not so here. CDT has not alleged that Order 13,925 denied it a crucial data set or a means to seek redress. Cf. Elec. Priv. Info. Ctr. v. Fed. Aviation Admin., 892 F.3d 1249, 1256 (D.C. Cir. 2018) (distinguishing the case from PETA for this reason). Rather, CDT vaguely alleges that it will have to divert resources to respond to the Order, which, as explained, is a non-cognizable injury.
PETA marks the outer bounds of the Circuit’s highly permissive organizational standing doctrine, yet the complaint here goes well beyond that line.5 The Court will not follow CDT into territory so foreign to
Turlock is more applicable here. In that case, conservation groups challenged a federal agency’s decision to require a hydroelectric river project to be licensed as a single unit, rather than as part of another project. Turlock, 786 F.3d at 21, 23. The groups alleged that they suffered injury, in part, because they would incur costs in “actively participat[ing] in both
Thus, CDT has not shown a concrete injury. Cf. Carney, 2020 WL 7250101, at *6 (explaining that relaxing the injury-in-fact requirement “would significantly weaken the longstanding legal doctrine preventing this Court from providing advisory opinions at the request of one who, without other concrete injury, believes that the government is not following the law”).
b.
Additionally, CDT’s allegations fail to show
Recall that Order 13,925 does not apply to private parties (including CDT). It only sets a course of government processes into motion. Cf. Rock the Vote v. Trump, No. 20-cv-06021-WHO, 2020 WL 6342927, at *7 (N.D. Cal. Oct. 29, 2020) (“None of these actions [directed by Order 13,925] proscribe any constitutional right because they do not restrict or regulate the platforms directly; they are simply steps that may or may not lead to additional regulations, restrictions, or liability at some uncertain point in the future, largely dependent on the actions of
To be sure, the government might issue regulations that CDT does not like. But it is just as possible that it will not. “
If such speculative future government action could support an injury in fact, it is hard to imagine what would not satisfy that requirement.
* * *
CDT seeks to overcome the shortcomings in its complaint by arguing that it can assert standing on behalf of third-party platforms injured by Order 13,925. See Pl.’s Opp’n at 29. The Court is not convinced.
In general, “a party generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties.” Kowalski v. Tesmer, 543 U.S. 125, 129 (2004) (cleaned up). With that said, a litigant can bring an action on behalf of third parties if “three important criteria are satisfied”: (1) “[t]he litigant must have suffered an
To start, third-party standing is not an “alternative basis for
And even if CDT has alleged a close relationship between it and third-party online platforms, see, e.g., Compl. ¶ 72 (stating that CDT must safeguard “the free speech rights of online content platforms”), it fails to show that the platforms cannot protect their own interests. The Court must consider “the likelihood and ability of the third parties . . . to assert their own rights.” Powers, 499 U.S. at 414. As the President points out, “online platforms are sophisticated, well-counseled businesses.” Def.’s Reply in Supp. of Mot. to Dismiss (“Def.’s Reply”) at 22, ECF No. 20. Online behemoths like Twitter and Facebook command armies of attorneys and lobbyists. They do not need CDT to carry their water for them.
CDT has thus not met its burden to assert third-party rights.
2.
CDT also lacks standing because any purported injury is not redressable through the injunctive or declaratory relief it seeks here. See Compl. at 27. The Court considers each form of relief in turn.
a.
The injunctive relief that CDT seeks against the President is unavailable. Long ago, the Supreme Court addressed whether the President can “be restrained by injunction from carrying into effect an act of Congress alleged to be unconstitutional.” Mississippi v. Johnson, 71 U.S. 475, 498 (1866). The Court held that it was “fully satisfied” that it had “no jurisdiction of a bill to enjoin the President in the performance of his official duties; and that no such bill ought to be received by” the Court. Id. at 501.
The Supreme Court reiterated this rule in Franklin v. Massachusetts, 505 U.S. 788, 802–03 (1992) (plurality opinion). The plurality acknowledged that Mississippi v. Johnson “left open
The D.C. Circuit has also unequivocally stated that, “[w]ith regard to the President, courts do not have jurisdiction to enjoin him.” Newdow v. Roberts, 603 F.3d 1002, 1013 (D.C. Cir. 2010) (citing Mississippi, 71 U.S. at 501). And it has taken Franklin’s admonition seriously. As one example, in Swan v. Clinton, the Circuit addressed whether the President could be enjoined to perform a ministerial duty—the question that Mississippi and Franklin left open. Swan v. Clinton, 100 F.3d 973, 976–77 (D.C. Cir. 1996). But the court took great pains to acknowledge that the Supreme Court “issued a stern admonition [in Franklin] that injunctive relief against the President personally is an extraordinary measure not lightly to be undertaken.” Id. at 978. It explained that “[t]he reasons why courts should be hesitant to grant such relief are painfully obvious,” including that an
b.
CDT focuses its efforts instead on obtaining declaratory relief. It argues that its alleged injury “will necessarily be redressed if the Order is declared unconstitutional.” Pl.’s Opp’n at 32 (emphasis added). Even if declaratory relief alone would redress CDT’s injury, the Court finds that this relief—like an injunction—is also unavailable against the President.
CDT may be correct that “[n]o Circuit precedent bars the issuance of a declaratory judgment in an action against the President,” Pl.’s Opp’n at 35 (emphasis added), but caselaw strongly suggests that such relief is inappropriate. In Swan, the Circuit recognized that although its discussion was “couched in terms of [its] ability to grant injunctive relief against the President, similar considerations regarding a court’s power to issue relief against the President himself apply to [the plaintiff’s] request for a declaratory judgment.” 100 F.3d at 976 n.1. In Newdow, the Circuit was even clearer: “A court—whether via injunctive or declaratory relief—does not sit in judgment of a President’s executive decisions.” 603 F.3d at 1012 (emphasis
There are powerful reasons why courts should refrain from subjecting the President to declaratory relief. As Justice Scalia explained in Franklin about injunctive relief:
“The apparently unbroken historical tradition supports the view, which I think implicit in the separation of powers established by the Constitution, that the principals in whom the executive and legislative powers are ultimately vested—viz., the President and the Congress (as opposed to their agents)—may not be ordered to perform particular executive or legislative acts at the behest of the Judiciary.”
Franklin, 505 U.S. at 827 (Scalia, J., concurring in part and concurring in the judgment). He then stated that declaratory relief is problematic “[f]or similar reasons”: “It is incompatible with [the President’s] constitutional position that he be compelled personally to defend his executive actions before a court.” Id. To hold otherwise “would produce needless head-on confrontations between district judges and the Chief Executive.” Id. at 828; cf. Doe 2 v. Trump, 319 F. Supp. 3d 539, 541 (D.D.C. 2018) (“Sound separation-of-power principles counsel the Court against granting these forms of relief [i.e., injunctive and declaratory] against the President directly.”).
* * *
Seeking relief against the President is not the only redressability issue that CDT faces. As explained, Order 13,925’s operative provisions set several events into motion. See, e.g., Order 13,925 § 2(b) (directing the Secretary of Commerce to “file a petition for rulemaking . . . requesting that the FCC expeditiously propose regulations”); id. § 6 (directing the Attorney General to “develop a proposal for Federal legislation”). “Enjoining or invalidating the Executive Order now will not halt or reverse any possible new rules and regulations that the FCC and Congress might adopt as a result of these processes.” Rock the Vote, 2020 WL 6342927, at *10. The arrow has already flown from the bow. To enjoin Order 13,925 would defy
B.
CDT’s failure to satisfy
In considering whether a claim is ripe for judicial review, courts evaluate “(1) the fitness of the issues for judicial decision and (2) the hardship to the parties of withholding court consideration.” Nat’l Park Hosp. Ass’n v. Dep’t of Interior, 538 U.S. 803, 808 (2003) (“NPHA”). The ripeness doctrine “prevent[s] the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies” and “protect[s] the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.” Id. at 807–08 (cleaned up). “A claim is not ripe for adjudication if it rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all.” Texas v. United States, 523 U.S. 296, 300 (1998) (cleaned up).
The Court rejects CDT’s invitation to disregard this ripeness issue. CDT argues that the Supreme Court has questioned the prudential ripeness doctrine. See Pl.’s Opp’n at 37. Perhaps, but the Court has also explicitly declined to “resolve the continuing vitality of the doctrine.” Susan B. Anthony List, 573 U.S. at 167. And lower courts must apply the law as it stands, “leaving to [the Supreme] Court the prerogative of overruling its own decisions.” Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989); see also Agostini v. Felton, 521 U.S. 203, 237 (1997)
CDT’s claim is unripe. First, the issues are not fit for judicial decision. CDT contends that its
The parties will also not suffer hardship as a result of any delayed consideration of CDT’s claim. CDT, as well as the third-party online platforms that it contends are harmed, are under no obligation to take (or not take) any action as a result of Order 13,925. Cf. NPHA, 538 U.S. at 809 (explaining that there was no hardship because the relevant regulation “does not command anyone to do anything or to refrain from doing anything; it does not grant, withhold, or modify any formal legal license, power, or authority; it does not subject anyone to any civil or criminal liability; and it creates no legal rights or obligations” (cleaned up)). There could be legal consequences flowing from Order 13,925 down the road: the FCC could issue regulations
IV.
In sum, CDT has not alleged a concrete and imminent injury to its interests that is likely to be redressed by a favorable decision. It thus has not met its burden to show that it has
For these reasons, the President’s motion to dismiss will be granted, and CDT’s complaint will be dismissed. A separate Order will issue.
Dated: December 11, 2020
TREVOR N. McFADDEN, U.S.D.J.