Trump Asks Court To Reinstate His Twitter Account ASAP

from the not-how-it's-gonna-work dept

There were a bunch of headlines this weekend claiming that Donald Trump had just "sued" Twitter to get his account reinstated. This is untrue. There were also some articles suggesting that he was using Florida's new social media law as the basis of this lawsuit. This is also false (what the hell is wrong with reporters these days?).

Trump actually sued back in July and it was widely covered then. And the basis of that lawsuit was not Florida's law, but rather a bizarrely twisted interpretation of the 1st Amendment.

What happened on Friday was that in that ongoing case, Trump filed for a preliminary injunction that would (if granted) force Twitter to reinstate Trump's account. This is not at all likely to be granted. The motion for the injunction is laughably bad. It's even worse than the initial complaint (which was hilariously bad). It does make reference to Florida's law -- which has already been held to be unconstitutional -- but it's certainly not using that as a key part of its argument.

As for this motion, it's just a lawyerly Hail Mary attempt by lawyers who are in way too deep, hoping that maybe they'll get lucky with a judge who doesn't care about how the 1st Amendment actually works. It's a mishmash of confused and debunked legal theories about the 1st Amendment and Section 230, but the crux of it is that it violated then President Donald Trump's rights when Twitter shut down his account, because Twitter was acting as the government. Yes. The argument is so stupid as to need repeating. The underlying argument is that government actor, Twitter illegally censored private citizen President Donald Trump, taking away his 1st Amendment rights through prior restraint.

As a government actor, Defendant’s prior restraint of Plaintiff is a violation of the First Amendment, and Plaintiff is therefore entitled to injunctive relief under the federal courts’ longstanding power to “grant equitable relief for constitutional violations.”

The parts about Section 230 are just as stupid:

Section 230 is not a valid defense to this action and is unconstitutional as applied to the facts of this case. Section 230 only protects Defendant for (1) causes of action in which third-party speech is an element and (2) its content moderation for specific reasons outlined in Section 230(c)(2). Here, Plaintiff’s constitutional claims against Defendant involve neither third-party speech nor the sorts of content specified in Section 230. Further, binding precedent has determined Section 230 offers platforms no protection from suits brought under the Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”).

That's... not how any of this works. Of course this is about 3rd party speech: Trump's. And Section 230 absolutely covers the kind of content specified by Section 230 (i.e., "information provided by another information content provider.")

The 230 argument just gets worse and worse the more Trump's very, very confused lawyers try to explain it. They really don't want the judge to recognize that basically every court has made it clear that (c)(1) (which has no "good faith" requirement) covers nearly all moderation decisions. And then they (falsely) claim that even (c)(2) doesn't protect Twitter. The truth is both sections protect Twitter. The tap dancing to exclude (c)(2) is truly impressive.

As Florida federal courts have ruled, consistent with most courts, Section 230(c)(2) is not a carte blanche to remove content for any reason. Rather, these terms refer to specific types of content regulable in 1996, and “otherwise objectionable” is a catch-all term that, under the ejusdem generis canon of statutory construction, refers to types of content Congress thought regulable in 1996. See Nat’l Numismatic Certification, LLC. v. eBay, Inc., No. 6:08-CV-42-ORL-19GJK, 2008 WL 2704404, at *25 (M.D. Fla. July 8, 2008) (“One may find an array of items objectionable; for instance, a sports fan may find the auction of a rival team’s jersey objectionable. However, Congress provided guidance on the term ‘objectionable’ by providing a list of seven examples and a statement of the policy behind Section 230”). Accordingly, the Court concludes that “objectionable” content must, at a minimum, involve or be similar to pornography, graphic violence, obscenity, or harassment. Song fi Inc. v. Google, Inc., 108 F. Supp. 3d 876, 883 (N.D. Cal. 2015). The six (6) adjectives preceding the phrase “otherwise objectionable” clearly demonstrate the policy behind the enactment of Section 230 (c)(2) and provide guidance as to what Congress intended to be ‘objectionable’ content. Section 230(c)(2) is not a bar to Plaintiff’s lawsuit, which alleges that Defendant removed content in violation of the First Amendment and other laws.

Uh, no. The reference to Song Fi is particularly stupid. The case is not a good one (see Eric Goldman's writeup when it came out), but it does not stand for the argument that Twitter can't kill the President's account when he appeared to be encouraging insurrectionists to prevent the peaceful transfer of power away from his presidency. That's pretty obviously "otherwise objectionable." In Song Fi, the court said that 230(c)(2) didn't apply (wrongly, in my opinion) because YouTube removed a video because it thought the video uploader was inflating viewer counts, and the court said that because that reason wasn't about the content of the video, 230 didn't apply. But, and here's the important bit, YouTube still won the case because its terms said that it could remove content for any reason. So even if the court bought this ridiculous argument regarding Section 230, it still doesn't help Trump.

As for the arguments regarding Florida's social media law, it's almost too ridiculous to mention, but it's there, so mention it we must. Trump's lawyers claim that the fact that the law was deemed pre-empted by Section 230 doesn't matter any more because one case cited by the judge was vacated and replaced later. This is the Domen case that we wrote about earlier this year. Except, Judge Hinkle didn't "rely" on that to find 230 pre-empted the law, so the vacating of the original ruling in that case doesn't change a damn thing, and... the revised Domen opinion STILL NOTES THAT 230 PRE-EMPTS STATE LAW (see footnote 4). I mean, what the fuck do Trump's lawyers think they're doing here?

Anyway, this motion has almost no chance, absent the judge making a really wacky decision which wouldn't stand up on appeal. Meanwhile, Twitter is still trying to get the case transferred to Northern California, though Trump is literally claiming that jurisdiction clauses can't apply to him because he was President. In a case where he's accusing Twitter of being the government. Really.

At all times relevant to this action, Plaintiff was the sitting President of the United States, and used his account and Defendant’s services in that capacity as a public forum. Knight First Amdt. Inst. at Columbia Univ., 928 F.3d at 226. Plaintiff was clearly a “federal … government entity in the United States using the Services” in his “official capacity.” Further, he was “legally unable to accept the controlling law, jurisdiction, or venue clauses” contained in Twitter’s TOS without input from other agencies, including the National Archives and Records Administration, in accordance with the requirements of the Federal Acquisition Regulation

Trump (incredibly) cites the Knight v. Trump case to prove that he used his personal Twitter account for official White House business (something he denied in the Knight case...).

Trump is also fighting jurisdictional changes in his cases against the other social media companies and this week the court in the Google/YouTube case rejected Trump's arguments against moving the case and sent it to California, laughing off the "but he was President!" argument:

To begin, the Court need not reach the issue of whether the United States or its officials can be bound by a forum-selection clause because, in this case, there is no federal agency or entity that is a party to this case. Plaintiffs assert that “[a]t all times relevant to this action, Plaintiff [Trump] was the sitting President of the United States, and used his social media accounts and YouTube’s services in that capacity as a public forum.” Resp. at 4. Yet, that is plainly not the case because Plaintiff Trump agreed to the TOS in his individual capacity, has brought this suit in his individual capacity, and is seeking the restoration of his YouTube account in his individual capacity. See generally Am. Compl. Indeed, as recognized in the Amended Complaint, Plaintiff Trump is bringing this case not as the President of the United States, but as “a private citizen and is domiciled in Palm Beach, Florida.” ... Plaintiff Trump’s status in this case as a private citizen is further confirmed by the fact that he is pursuing claims under FDUTPA—which provides no cause of action for the federal government or its officials. ... Thus, because Plaintiff Trump is not a party to this case in an official government capacity, the Court finds these arguments to be without merit.

Relatedly, the Court finds Plaintiffs’ arguments premised on the Second Circuit’s opinion in Knight to be unrelated to the enforceability of the forum-selection clause in this case. In Knight, the Second Circuit held that Plaintiff Trump’s Twitter account was a “public forum” such that Plaintiff Trump violated the First Amendment by blocking users from interacting with his account. 928 F.3d at 237–38. But this holding has no impact on the enforceability of the forum-selection clause in this case, where Plaintiff Trump is a party in his individual capacity.

That doesn't bode well for the similar arguments in the other cases. But, again, none of the arguments Trump is making in these lawsuits makes much sense.

Anyway, this whole thing is ridiculous and hopefully the judge recognizes it as such and tosses it quickly.

Filed Under: 1st amendment, content moderation, donald trump, injunction
Companies: twitter, youtube

As Expected: Judge Grants Injunction Blocking Florida's Unconstitutional Social Media Law

from the boom-goes-the-dynamite dept

I'm sorry, but those of you looking forward to riding the Friend Feed Flume at Zuckland or the Search Engine Shuffle at GooglePark are probably out of luck. Florida's new social media law (and its theme park owner exemption) is not going to become law.

We've written a few times about Florida's blatantly corrupt and unconstitutional social media content moderation law -- complete with its special carveout for Disney*. The legal challenge to the bill had a hearing in court on Monday, and as we expected, Florida's arguments in favor of the bill were not well received. I listened to the entire hearing and, to put it mildly, the judge was not impressed by Florida's arguments. At one point, he literally asked the lawyer defending the bill if he had ever come across a more poorly drafted piece of legislation. That's generally not a good sign.

And, now, with just hours to go until the law was supposed to go into effect, the judge has granted the preliminary injunction blocking the bill, and the ruling makes it pretty clear that this bill is not going to survive. Of course, Florida will likely appeal the ruling, and it'll be up to the Appeals Court to go into more depth. During the hearing, the judge, Robert Hinkle, more or less admitted this would be the case, and said that his ruling wouldn't go that deep, because what the Appeals Court says will be more important in the long run. Even so, the ruling is worth exploring, as it smashes the law to bits in a variety of ways.

The State of Florida has adopted legislation that imposes sweeping requirements on some but not all social-media providers. The legislation applies only to large providers, not otherwise-identical but smaller providers, and explicitly exempts providers under common ownership with any large Florida theme park. The legislation compels providers to host speech that violates their standards—speech they otherwise would not host—and forbids providers from speaking as they otherwise would. The Governor’s signing statement and numerous remarks of legislators show rather clearly that the legislation is viewpoint-based. And parts contravene a federal statute. This order preliminarily enjoins enforcement of the parts of the legislation that are preempted or violate the First Amendment.

So, let's start with ye olde 1st Amendment. As we predicted, it's pretty clear that this law violates it. The judge agrees. For all the talk of how the law supposedly "protects" the 1st Amendment, the judge recognized it absolutely does the opposite. I've tried to highlight the key bits if you want to skim:

First, the State has asserted it is on the side of the First Amendment; the plaintiffs are not. It is perhaps a nice sound bite. But the assertion is wholly at odds with accepted constitutional principles. The First Amendment says “Congress” shall make no law abridging the freedom of speech or of the press. The Fourteenth Amendment extended this prohibition to state and local governments. The First Amendment does not restrict the rights of private entities not performing traditional, exclusive public functions. See, e.g., Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921, 1930 (2019). So whatever else may be said of the providers’ actions, they do not violate the First Amendment.

Second, the First Amendment applies to speech over the internet, just as it applies to more traditional forms of communication. See, e.g., Reno v. ACLU, 521 U.S. 844, 870 (1997) (stating that prior cases, including those allowing greater regulation of broadcast media, “provide no basis for qualifying the level of First Amendment scrutiny that should be applied” to the internet).

Third, state authority to regulate speech has not increased even if, as Florida argued nearly 50 years ago and is again arguing today, one or a few powerful entities have gained a monopoly in the marketplace of ideas, reducing the means available to candidates or other individuals to communicate on matters of public interest. In Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974), the Court rejected just such an argument, striking down a Florida statute requiring a newspaper to print a candidate’s reply to the newspaper’s unfavorable assertions. A similar argument about undue concentration of power was commonplace as the social-media restrictions now at issue advanced through the Florida Legislature. But here, as in Tornillo, the argument is wrong on the law; the concentration of market power among large social-media providers does not change the governing First Amendment principles. And the argument is also wrong on the facts. Whatever might be said of the largest providers’ monopolistic conduct, the internet provides a greater opportunity for individuals to publish their views—and for candidates to communicate directly with voters—than existed before the internet arrived. To its credit, the State does not assert that the dominance of large providers renders the First Amendment inapplicable.

The court then explores various precedential cases regarding the ability of the government to compel a private company to host speech and finds that the arguments of Florida are lacking. Since there are speech issues at stake, the law must be subject to strict scrutiny -- and as such it fails the 1st Amendment test. Indeed, public statements made by Florida's governor Ron DeSantis, grandstanding about this bill, are part of what helped to sink it (it would have been sunk anyway, but it's amusing to see his public statements used by the judge here):

The plaintiffs assert, too, with substantial factual support, that the actual motivation for this legislation was hostility to the social media platforms’ perceived liberal viewpoint. Thus, for example, the Governor’s signing statement quoted the bill’s sponsor in the House of Representatives: “Day in and day out, our freedom of speech as conservatives is under attack by the ‘big tech’ oligarchs in Silicon Valley. But in Florida, we said this egregious example of biased silencing will not be tolerated.” Similarly, in another passage quoted by the Governor, the Lieutenant Governor said, “What we’ve been seeing across the U.S. is an effort to silence, intimidate, and wipe out dissenting voices by the leftist media and big corporations. . . . Thankfully in Florida we have a Governor that fights against big tech oligarchs that contrive, manipulate, and censor if you voice views that run contrary to their radical leftist narrative.” This viewpoint-based motivation, without more, subjects the legislation to strict scrutiny, root and branch. See, e.g., Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 829 (1995) (“The government must abstain from regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction.”) (citing Perry Ed. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 46 (1983)).

Moreover, these statements are consistent with the statutory definition of “social media platform,” which extends only to, and thus makes the legislation applicable only to, large entities—those with $100 million in revenues or 100 million monthly participants. As the Supreme Court has recognized, discrimination between speakers is often a tell for content discrimination. See, e.g., Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 340 (2010) (“Speech restrictions based on the identity of the speaker are all too often simply a means to control content.”). That is the case here. The state has suggested no other basis for imposing these restrictions only on the largest providers. And even without evidence of an improper motive, the application of these requirements to only a small subset of social-media entities would be sufficient, standing alone, to subject these statutes to strict scrutiny. See, e.g., Minneapolis Star & Tribune Co. v. Minnesota Comm’r of Revenue, 460 U.S. 575, 591 (1983); Arkansas Writers’ Project, Inc. v. Ragland, 481 U.S. 221, 229 (1987).

And, yeah, the Disney carveout is seen as a tell as well:

Finally, the same is true of the exclusion for social-media providers under common ownership with a large Florida theme park. The State asserted in its brief that the provision could survive intermediate scrutiny, but the proper level of scrutiny is strict, and in any event, when asked at oral argument, the State could suggest no theory under which the exclusion could survive even intermediate scrutiny. The State says this means only that the exclusion fails, but that is at least questionable. Despite the obvious constitutional issue posed by the exclusion, the Legislature adopted it, apparently unwilling to subject favored Florida businesses to the statutes’ onerous regulatory burdens. It is a stretch to say the severability clause allows a court to impose these burdens on the statutorily excluded entities when the Legislature has not passed, and the Governor has not signed, a statute subjecting these entities to these requirements.

The judge then goes even further, by noting that even if you applied intermediate scrutiny (a lower standard) the bill still wouldn't live up to 1st Amendment requirements:

The provisions at issue here do not meet the narrow-tailoring requirement. Indeed, some of the disclosure provisions seem designed not to achieve any governmental interest but to impose the maximum available burden on the social media platforms

The judge also follows up on his comments during the hearing about how poorly drafted the law is to note the many problems in the law for being vague and open to wildly different interpretations, but notes that given the other reasons to block the law, he doesn't need to use the vagueness issue for the injunction.

In the end, the court recognizes that this bill was really all about punishing a few companies, and that's not how the law is supposed to work:

The legislation now at issue was an effort to rein in social-media providers deemed too large and too liberal. Balancing the exchange of ideas among private speakers is not a legitimate governmental interest. And even aside from the actual motivation for this legislation, it is plainly content-based and subject to strict scrutiny. It is also subject to strict scrutiny because it discriminates on its face among otherwise-identical speakers: between social-media providers that do or do not meet the legislation’s size requirements and are or are not under common ownership with a theme park. The legislation does not survive strict scrutiny.

There is also, extremely briefly, a recognition that the law is likely pre-empted by Section 230, basically highlighting that the law clearly violates 230's prohibitions on allowing platforms to moderate as they see fit:

Florida Statutes § 106.072 prohibits a social media platform from deplatforming a candidate for office and imposes substantial fines: $250,000 per day for a statewide office and $25,000 per day for any other office. But deplatforming a candidate restricts access to material the platform plainly considers objectionable within the meaning of 47 U.S.C. § 230(c)(2). If this is done in good faith—as can happen—the Florida provision imposing daily fines is preempted by § 230(e)(3). Good faith, for this purpose, is determined by federal law, not state law. Removing a candidate from a platform based on otherwiselegitimate, generally applicable standards—those applicable to individuals who are not candidates—easily meets the good-faith requirement. Indeed, even a mistaken application of standards may occur in good faith.

The federal statute also preempts the parts of Florida Statutes § 501.2041 that purport to impose liability for other decisions to remove or restrict access to content. See Fla. Stat. § 501.2041(6) (creating a private right of action for damages for violations of § 501.2041(2)(b) and (2)(d)1; id. § 501.2041(2)(b) (requiring a social media platform to apply censorship, deplatforming, and shadow banning standards in a consistent manner); id. § 501.2041(2)(d)1 (prohibiting a social media platform from deplatforming a user or censoring or shadow banning a user’s content without notifying the user); § 501.2041(2) (making any violation of that subsection an unfair or deceptive act or practice within the meaning of § 501.204—and thus providing a private right of action for damages under § 501.211).

Claims based on alleged inconsistency of a platform’s removal of some posts but not others are preempted.

That last line needs to be repeated over and over again for every state considering these kinds of laws.

Anyway, Florida is almost certainly going to waste more taxpayer dollars and appeal this ruling, but it's really difficult to see how the law survives. It was a garbage unconstitutional bill from the very beginning -- a point that many, many people made clear to both Governor DeSantis and the legislators who pushed this bill. But, of course, the goal was never to get this bill into actual law. It was all a big theater production -- to let them pretend to be culture warriors against "the libs" who they claim run social media platforms. It's just unfortunate that they get to throw away taxpayer money on their theatrical grandstanding.

* By the way, if you'd like to see a fun moment in the Florida legislature during the debate over the bill, check out this fairly incredible video of the discussion between Rep. Blaise Ingoglia -- who inserted the Disney carveout -- and Rep. Anna Eskamani who wants to get him on record explaining why. Ingoglia flat out admits that it's to protect Disney, though his argument is so hilariously dumb it's hard to believe it's real. He argues that they need to protect Disney+ reviews (Disney+ doesn't currently have reviews) and that it shouldn't apply to other sites, because Disney creates its own content. This ignores, of course, that the entire bill is about the moderation of 3rd party content (such as, uh, reviews, which are not created by Disney). It's almost as if he doesn't understand what all of this means, and is just making sure to do a favor to Disney, just because.

Filed Under: 1st amendment, content moderation, florida, injunction, section 230, theme parks
Companies: ccia, facebook, google, netchoice, twitter

Makers Of 'Peaky Blinders' Show Fail To Get Injunction Against Distillery For 'Peaky Blinders' Whiskey

from the cheers! dept

When you cover as many trademark disputes centered around the alcohol industry as I have, you really do start to realize just how many other industries don't seem to understand that their products are not the same as adult libations. Alcohol, you see, is not the same as a major metropolitan city. Alcohol is also not the same thing as fruit juice. Beer, as well, is not the same thing as wine. Alcohol is also not the same thing as a famous movie franchise.

And, as the producers of the hit show Peaky Blinders are hopefully about to learn, alcohol is also not the same thing as a television show about a famous historical gang. See, Sadler's Brewhouse in the UK recently applied for a trademark on the many "Peaky Blinders" alcoholic drinks it sells in the United States. The production company for Peaky Blinders the Netflix show caught wind of this and promptly sued for trademark infringement, going so far as to ask the court for an injunction to prevent Sadler's from selling its products.

Mandabach sued Sadler’s for trademark infringement in November, alleging Sadler’s “Peaky Blinder” whiskey, gin, rum, and dark beer was likely to cause confusion with its show about the 19th century Birmingham, U.K., gang after which the show is named.

Sadler’s applied for a U.S. trademark for the name in 2017. Mandabach sent it a warning letter in 2018, and Sadler’s began selling the drinks in the U.S. through co-defendants Halewood Wines & Spirits Inc and The Winebow Group LLC in 2020.

Now, before we get to how the court ruled on the injunction, there are a couple of things you have to understand about all of this. Peaky Blinders is not a fictional gang created by the show's producers. They were a very real street gang that operated in England until the early 1900s. Sadler's former owner was a descendent of a Peaky Blinder gang member and the gang used to go to the brewery's venues on the regular as a result. It's for those reasons that the company decided on using Peaky Blinders branding.

Now, the show producers claimed a number of things in its lawsuit and request for an injunction. It claimed that the trademark it held for the show was not at all descriptive, that it had acquired secondary meaning, and that there was real customer confusion in the public due to Sadler's use. The court denied the injunction and the reasoning it did so should give the producers pause on whether to keep this lawsuit going in the first place.

Caryn Mandabach Productions Ltd didn’t show that it owned a protectable trademark in the name, that Sadler’s Brewhouse Ltd’s products were likely to cause confusion, or that the alleged confusion caused it irreparable harm, U.S. District Judge Consuelo Marshall said Wednesday, rejecting the production company’s bid for a preliminary injunction.

Marshall found Wednesday that Mandabach didn’t prove it had a protectable interest in its unregistered trademarks, in part because its use of “Peaky Blinders” is “likely descriptive or suggestive of a television show regarding a group of persons named the Peaky Blinders.” Mandabach also didn’t make the “clear showing” required for a preliminary injunction that Sadler’s was likely to confuse consumers. Mandabach also wouldn’t be irreparably harmed without an injunction, Marshall said, noting that it waited over two years to sue and nearly three years to request an injunction after sending Sadler’s the warning letter.

The full ruling on the denied injunction is embedded below. If you want a sense of why Mandabach maybe should just drop this whole thing, it's worth a read. Injunction rulings have lower bars than would be considered in a motion to dismiss argument, should Sadler's seek one, but the analysis is still fairly damning. In a nod back to the opening paragraph of this post, for instance, consider the court's view on whether these two companies operate in the same marketplace.

“Related goods are generally more likely than unrelated goods to confuse the public as to the producers of the goods.” Network Automation, Inc. v. Advanced Sys. Concepts, Inc., 638 F.3d 1137, 1150 (9th Cir. 2011). Here, Plaintiff’s good is a television show whereas Defendants’ goods are whiskey. Therefore, the proximity of the goods factor does not favor finding a likelihood of confusion.

Most of the tests for trademark infringement and for granting an injunction follow a similar track.

Frankly, a great deal of this hinges on the show's own decision to use the name of a historically famous real life street gang as its show name. The idea that this slice of history could be locked up by a television show and prohibit its use in a totally unrelated market flies in the face of the purpose of trademark law.

Filed Under: beer, injunction, likelihood of confusion, peaky blinders, trademark, tv shows
Companies: mandabach, sadler brewhouse

Judge Not Impressed By Parler's Attempt To Force Amazon To Put It Back Online

from the not-how-it-works dept

It appears that Parler's antitrust lawsuit against Amazon for suspending its AWS account isn't off to a very good start. In an emergency hearing on Thursday to see whether or not the judge would order Amazon to turn AWS back on for Parler, the judge declined to do so:

U.S. District Judge Barbara J. Rothstein in Seattle said during a hearing Thursday she’s not inclined to order Amazon to immediately put Parler back online. Instead, she expressed interest in taking a more measured approach to deciding whether she should order a permanent injunction to restore web-services to Parler.

Having spoken to two people who followed the hearing, it sounds like the judge did not make an official ruling yet, but said she will quickly. Another comment I heard from people who listened to the hearing was that Parler's lawyer did not seem to understand some fairly basic concepts regarding how all of this works, which does not bode well for his client. Also, Amazon's lawyer has said that they told Parler that the they would allow the site to return to AWS if it put in place a real content moderation strategy -- which again leans into the fact that they suspended, rather than terminated Parler's account (this has become a key point in the lawsuit, as Parler argues that termination violates their contract, while Amazon says the account was merely suspended, which is different from terminated).

One other point: Parler's lawyer apparently told the judge that Parler could not afford to litigate this case all the way to judgment (in the context of arguing that there would be irreparable harm in not turning the site back on immediately, when asked why any harm couldn't later be dealt with by an award of damages). I find this amusing, because just last week (which feels like a century ago, of course), Parler insisted that it didn't need Section 230 at all and CEO John Matze was saying that Parler was big enough to fight off any lawsuits that would come about without 230. At the time, I pointed out to him that while his backers, the Mercer family, are wealthy, they're not that wealthy.

Still, it's pretty stunning to go from "eh, we can handle such lawsuits if we're liable for our users postings" to "uh, we can't afford this lawsuit we filed to keep our site alive" in just one week.

Filed Under: antitrust, aws, injunction, terms of service
Companies: amazon, parler

Commerce Department Remembers It Was Supposed To Ban TikTok; Says It Won't Enforce For Now

from the oh,-right,-that dept

Yesterday we noted that TikTok had made a filing with the government asking what the fuck was going on with the supposed ban on their application that was supposed to go into effect this week. While a court had issued an injunction saying the Commerce Department couldn't put the ban into effect, the Trump administration basically hadn't said anything since then, and the ban was set to go into effect yesterday.

Late yesterday, the Commerce Department put out a notice basically saying that it's complying with the injunction issued by the court, and therefore not implementing the executive order and the ban:

However, on October 30, 2020, the District Court issued an Order granting the Plaintiffs' renewed motion for a preliminary injunction. This Order enjoined the Department from enforcing the Identification and the prohibition on transactions identified in Paragraphs 1-6 above.

The Department is complying with the terms of this Order. Accordingly, this serves as NOTICE that the Secretary’s prohibition of identified transactions pursuant to Executive Order 13942, related to TikTok, HAS BEEN ENJOINED, and WILL NOT GO INTO EFFECT, pending further legal developments

Of course, the Commerce Department saying it won't enforce the order doesn't answer the larger question of whether or not the US government is still demanding that it sell off all of its US assets -- or even whether or not the grifty non-sale to Oracle will suffice.

Basically, highlighting how much of a joke this whole thing was, it seems that the supposed "national security" rationale behind all of this was complete garbage, and since Trump has his hands full trying to pretend he won the election he very clearly lost, everyone's just going to let this slide until the Biden administration comes in and likely drops the executive order altogether. But kudos to Larry Ellison for getting a lucrative hosting deal.

Filed Under: ban, china, commerce department, donald trump, executive order, injunction, wilbur ross
Companies: bytedance, oracle, tiktok

Judge Rejected Ban On TikTok Because Trump's DOJ Can't Show Any Real National Security Threat

from the because-of-course dept

Earlier today we wrote about a judge blocking Trump's TikTok ban, though noting that the full reasoning why was under seal. Right about the time that post went up, the details were unsealed. Unlike the WeChat injunction which was done on 1st Amendment grounds, the injunction here doesn't touch the 1st Amendment questions and just says that the Trump White House (even with presenting evidence under seal) totally failed to substantiate the national security threat of TikTok, even under the IEEPA (International Emergency Economic Powers Act) which grants the President tragically and dangerously broad powers to claim a "national emergency" to block international commerce.

As noted above, IEEPA contains a broad grant of authority to declare national emergencies and to prohibit certain transactions with foreign countries or foreign nationals that pose risks to the national security of the United States. But IEEPA also contains two express limitations relevant here: the “authority granted to the President . . . does not include the authority to regulate or prohibit, directly or indirectly” either (a) the importation or exportation of “information or informational materials”; or (b) “personal communication[s], which do[] not involve a transfer of anything of value.”

We pointed out this clause when Trump's executive order was first issued, noting that it likely doomed it, so it's good to see the judge highlight it. The DOJ pushed back on this, saying that since it was just prohibiting certain "business-to-business economic transactions," it wasn't actually prohibiting the movement of information. Incredibly the DOJ also claimed it had not taken any action concerning "TikTok users themselves." The judge more or less responds with a sarcastic "come on, you can't be serious."

But that argument fails to grapple with IEEPA’s text. Section 1702(b)(3) provides that IEEPA’s grant of authority “does not include the authority to regulate or prohibit, directly or indirectly,” the cross-border transmission of “information and informational materials.”... The content exchanged by TikTok users constitutes “information and informational materials”; indeed, much of that content appears to be (or to be analogous to) “publications, films, . . . photographs, . . . artworks, . . . and news wire feeds.” Id. And the purpose and effect of the Secretary’s prohibitions is to limit, and ultimately reduce to zero, the number of U.S. users who can comment on the platform and have their personal data on TikTok.... At a minimum, then, the Secretary’s prohibitions “indirectly” “regulate” the transmission of “informational materials” by U.S. persons.

Moreover, Section 1702(b)(3)’s express limitation applies to “commercial” informational materials. If prohibitions on business-to-business transactions could not constitute the regulation of “informational materials,” then there would have been no reason for Congress to include the word “commercial” when defining the scope of § 1702(b)(3)’s limitation.....

To be sure, TikTok (like a news wire, which is expressly identified in IEEPA’s carveout) is primarily a conduit of “informational materials.” In that sense, it is (among other things) a “medium of transmission,” and IEEPA provides that this carveout applies “regardless of format or medium of transmission.” 50 U.S.C. § 1702(b)(3). That is especially true where, as here, the transmitting medium is inextricably bound up with and exists primarily to share protected informational materials.

From there, the DOJ tried to argue that the Espionage Act (which I and many others believe is already unconstitutional) when combined with the IEEPA can be used to block certain information under the IEEPA. But again, the judge says that's not how any of this works, especially because kids dancing on TikTok are not violating the Espionage Act.

Finally, the government proposes a novel reading of the Espionage Act.... Section 1702(b)(3) contains an exception to its exception, so to speak, and permits the regulation of informational materials, “with respect to . . .acts . . . prohibited by chapter 37 of Title 18.” That Title authorizes life imprisonment or the death penalty for those who share U.S. defense secrets (especially classified government materials) with foreign adversaries.... But it is not plausible that the films, photos, art, or even personal information U.S. users share on TikTok fall within the plain meaning of the Espionage Act.

At the end of the order, the Court also addresses the national security question while looking at the "balance of equities" in determining whether or not an injunction against the ban was appropriate. And it notes that, despite the DOJ presenting evidence in sealed filings, it wasn't enough to substantiate the claims that TikTok is a national security threat.

The government argues that a preliminary injunction would displace and frustrate the President’s decision on how to best address a national security threat—an area where the courts typically defer to the President’s judgment.... The Court must, of course, give deference to the Executive Branch’s “evaluation of the facts” and the “sensitive and weighty interests of national security and foreign affairs,” Holder v. Humanitarian Law Project, 561 U.S. 1, 33–34 (2010), including “the timing of those . . . decisions.” Holy Land Found. for Relief & Dev. v. Ashcroft, 219 F. Supp. 2d 57, 74 n.28 (D.D.C. 2002). Here, the government has provided ample evidence that China presents a significant national security threat, although the specific evidence of the threat posed by Plaintiffs, as well as whether the prohibitions are the only effective way to address that threat, remains less substantial.

As for why the court only granted the injunction for last night's ban, and not the November 12th more complete ban, the court basically says "we have time to deal with that one later," but presents no suggestion that it would allow that ban to move forward either.

... the only truly imminent and immediate harm that Plaintiffs will suffer absent an injunction relates to paragraph 1 of the Commerce Identification. The Court therefore agrees with the government that injunctive relief should be limited to the prohibitions contained in paragraph 1, and that the other paragraphs of the Commerce Identification should appropriately be the subject of separate proceedings, which can be briefed and decided (potentially through cross-motions for summary judgment, and on a full administrative record) prior to those restrictions’ effective date of November 12.

So, the WeChat ban gets blocked on 1st Amendment grounds, and the TikTok ban gets blocked because the IEEPA doesn't let the President do what he wants to do, and all of this is just performative nonsense anyway, wasting two separate courtrooms' time, not to mention significant concerns among many different companies which would have had to deal with the fallout of a ban. All because Trump is mad at kids on TikTok who don't like him.

Still, it does seem notable that even under seal that government couldn't present any real evidence to the court of the threat of TikTok being owned by a Chinese firm. As if we didn't already have enough evidence about the fact that this entire debacle was a made up culture war, rather than a serious concern. It remains incredible to me that otherwise serious people jumped on board with Trump's decision to ban these apps.

Filed Under: china, doj, donald trump, executive order, ieepa, injunction, national security
Companies: bytedance, tiktok

Court Says Trump's Plan To Block TikTok Can't Go Into Effect Yet

from the blocked dept

As we noted late on Friday, even with the weird grifty deal between TikTok and Oracle, Trump's ban on TikTok was scheduled to go into effect last night -- but a court was rushing to review a request by TikTok/Bytedance to put in place a temporary injunction to stop the rules from taking effect.

In an emergency hearing on Sunday morning the judge appeared to be inclined to block the injunction, noting:

This was a unilateral decision with very little opportunity for the plaintiffs to be heard and the result, whether we're talking about November or tonight, is a fairly significant deprivation.

If you don't recall, the block had two stages. The first was supposed to go into effect last night, blocking app stores from any new downloads (including updates) for the software. The second would go into effect on November 12th, and that would block other US services from helping TikTok (no optimization, no CDNs, no peering) as well as any use of TikTok's API.

In a ruling late on Sunday, the judge agreed to a preliminary injunction blocking the rules from going into effect last night, but not issuing one blocking the November rules. However, the reasoning is not known, because it was filed as a sealed memorandum, though both parties have been asked to approve unsealing it perhaps as soon as today.

It seems likely that the reasoning will be at least somewhat similar to the preliminary injunction that blocked the WeChat ban from going into effect: that you can't just magically wave your arms around and scream "national security" to ban entire communications platform from the US -- especially without addressing the 1st Amendment concerns.

The Commerce Department put out a brief statement saying that the Executive Order is "fully consistent with the law" (it isn't) and "promotes legitimate national security interests" (it doesn't). However, it also says it will comply with the injunction, but will "vigorously defend" the E.O. from legal challenges.

On September 27, 2020, the United States District Court for the District of Columbia granted a nationwide preliminary injunction against the implementation of Executive Order (E.O.) 13942, limited to the Secretary of Commerce’s Identification of Prohibited Transactions with TikTok/ByteDance involving ‘any provision of services… to distribute or maintain the TikTok mobile application, constituent code, or application updates through an online mobile application store.’ The E.O. is fully consistent with the law and promotes legitimate national security interests. The Government will comply with the injunction and has taken immediate steps to do so, but intends to vigorously defend the E.O. and the Secretary’s implementation efforts from legal challenges.

In other words, this isn't over yet by a long shot.

Filed Under: ban, china, commerce department, executive order, injunction, preliminary injunction, wilbur ross
Companies: bytedance, tiktok

TikTok And The DOJ Still Fighting It Out In Court Despite Oracle 'Deal'

from the look-at-that dept

Even though Trump gave his supposed okay to the grifty TikTok/Oracle hosting deal, it appears that TikTok, ByteDance and the Trump administration are still busy fighting this out in court. The Trump rules to ban the app are still set to go into effect on Sunday. And while WeChat users were able to block the rules from going into effect, they still technically are scheduled to go into effect for TikTok this weekend.

TikTok has asked for an injunction to stop the ban and the court is going to decide at the last minute whether to issue an injunction in the TikTok case as well. This is, in part, because the Oracle deal (which is not a sale and accomplishes none of the stated goals of the original executive order) still needs approval from the Chinese side -- and there are indications that China wants a better deal.

After a hearing on Thursday, the judge ordered the government to either respond to the request for an injunction or to submit "a notice describing [the DOJ's] plan to delay the effective date of the subset of prohibited transactions directed against TikTok that are scheduled to go into effect" on Sunday at midnight. The DOJ, rather than say they were delaying the TikTok ban, instead, filed an opposition to the proposed injunction, though it did so under seal so we can't see what the DOJ said.

The judge is expected to rule by Sunday, and it's possible (likely) that he'll drag the lawyers from both sides into (virtual) court this weekend. The whole thing remains insane. The President should never have the right to just ban a random social media app like this. Hopefully, the court agrees to an injunction while everything else gets worked out.

Filed Under: ban, china, commerce department, donald trump, injunction
Companies: bytedance, oracle, tiktok