DOJ Intervenes to Defend Section 230 in Trump’s Facebook Lawsuit

Attorney General Merrick Garland makes remarks at a press conference at the Department of Justice in Washington on Aug. 5, 2021. Kevin Dietsch/Getty Images

The Department of Justice (DOJ) has intervened in former President Donald Trump’s lawsuit against Facebook in order to defend the constitutionality of Section 230, a federal statute derided by both Trump and President Joe Biden.

The plaintiffs in Trump’s lawsuit filed a constitutional question in July as to the legality of Section 230. The federal court handling the case in Florida certified the question to Attorney General Merrick Garland and, in late August, ordered the DOJ to decide whether to intervene to defend the legality of the statute.

In its filing on Nov. 22, the government stated that the DOJ “has an unconditional right to intervene to defend the statute” and is intervening “for the limited purpose of defending the constitutionality of Section 230.”

Attorneys for both Facebook and Trump agreed to the DOJ’s intervention, according to the filing (pdf).

Section 230 of the Communications Decency Act shields internet companies from liability for the good faith removal of “objectionable” content. On the campaign trail in 2019, Biden told The New York Times that Section 230 should be repealed.

“The idea that it’s a tech company is that Section 230 should be revoked, immediately should be revoked, number one. For Zuckerberg and other platforms,” Biden told the NY Times’ editorial board on Dec. 16, 2019. “It should be revoked because it is not merely an internet company. It is propagating falsehoods they know to be false.”

In May, Biden revoked a Trump order that had targeted Section 230.

Former President Donald Trump prepares to speak during the Conservative Political Action Conference held at the Hilton Anatole in Dallas on July 11, 2021. Brandon Bell/Getty Images

In his class-action lawsuit against Facebook, Trump is seeking the reinstatement of his account, punitive damages for being banned from the platform, and for Section 230 to be declared unconstitutional. Facebook banned Trump indefinitely from its platform on Jan. 7, the day after the breach of the U.S. Capitol.

Trump’s attorneys had argued in October that Section 230 violates the First Amendment when applied in his case.

“Coerced by members of the United States Congress, operating under an unconstitutional immunity granted by a permissive federal statute, and acting directly with federal officials, [Facebook] is censoring plaintiff, a former President of the United States,” Trump’s attorneys said in a motion for a preliminary injunction.

“[Facebook] exercises a degree of power and control over political discourse in this country that is immeasurable, historically unprecedented, and profoundly dangerous to open democratic debate. Defendant not only banned Plaintiff from its platform, but also extended its prior restraint to innumerable Users who post comments about Plaintiff.”

Facebook, in prior filings, has called the case “meritless.” The company’s attorney had successfully motioned to move the case to a California court, pointing out that users who accept its terms of service agree to litigate their claims in California.

Trump had tens of millions of users on Facebook, Twitter, and YouTube before the three social media giants banned his accounts in the wake of the Jan. 6 breach. Trump was subsequently exonerated by the Senate from Capitol-breach-related charges against him brought by House Democrats.