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Section 230 Applies to Tweeted Links to Defamatory Content–Coomer v. Donald J. Trump for President

This is another election integrity case. The plaintiff, Eric Coomer, worked for Dominion Voting. A conspiracy theory alleged that he planned to throw the 2020 presidential election against Trump. He sued various conspiracy theory traffickers for defamation. You would recognize several of the defendants’ names as frequent sources of misinformation and lies. The court holds that Coomer’s defamation allegations survive an anti-SLAPP motion to dismiss.

This post focuses only on one corner of the lawsuit. Eric Trump and Donald Trump both tweeted links to materials containing the allegedly defamatory statements. The court says Section 230 protects these tweets.

Here is Eric Trump’s tweet:

(Today, Twitter strips all metadata about the linked article other than the preview image. In 2020, there would have been more preview information of the linked article. It’s a testament to my dedication to my readers that I braved going to Eric Trump’s feed on “X” to grab this screenshot).

The link and image are third-party content, but Eric Trump’s tweet quoted a line from the article and added Eric Coomer’s job title, which compounded the misidentification. Despite these additions, the court treats the tweet as a verbatim quote of the third-party article.

Donald Trump’s link doesn’t reference Coomer at all:

(Again, it tested my reader dedication to get this screengrab. I did mute my audio LOL).

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).

The district court supported its inaccurate Section 230 analysis by citing Justice Thomas’ statement in Malwarebytes v. Enigma. (Rhetorical question: has there ever been a more unhelpful and diversionary non-binding “statement” from a Supreme Court justice than this one?) The appeals court blows it up:

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. [The quoted language comes from the In re Facebook opinion.]

The only reason anyone invokes Justice Thomas’ Malwarebytes “statement” is because they hope to induce courts to adopt a position contrary to “every existing judicial decision.” That’s condemnable.

The appeals court thus concludes:

because the two tweets by Eric Trump and President Trump consisted solely of “information provided by another information content provider,”Coomer’s claim against the Trump Campaign may not be based on those tweets

The vast bulk of Coomer’s case remains, but not the claims over these two tweets.

Implications

The opinion’s brief treatment of Section 230 included some good, some bad, and some ugly.

Good: In general, Section 230 protects links to defamatory content. See, e.g., Comyack v. GiannellaMarfione v. Kai, Vazquez v. Buhl. Similarly, Section 230 also protects verbatim retweeting. Banaian v. Bascom, Holmok v. Burke.

Bad: The court didn’t cite any of these cases supporting its conclusion.

Good: This is yet another ruling illustrating how Section 230 protects not just “Big Tech” but also users of interactive computer services. It’s maybe frustrating to see it benefit the Trumps, but overall it’s a good rule that all of us benefit from every day.

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.

Good: The court called out the bogus positions of Justice Thomas’ Malwarebytes statement.

Ugly: The lower court had relied on Justice Thomas’ statement to reach a bad result. How and why did that court get it so wrong?

Ugly: This case illustrates how bogus claims about election interference start in relatively obscure corners of the Internet (in this case, Joseph Oltmann, co-host of the Conservative Daily podcast), only to have those claims get platformed and amplified by folks with bigger audiences and partisan agendas, like Trump’s Twitter account during its pre-shutdown heyday. This amplification lends a veneer of credibility to the bogus claims–with serious consequences, including degrading public confidence in our elections process and wrecking Coomer’s life.

Ugly: Trump’s lawyers actually got the law right for once, but only by accident. There was still plenty of legal incompetence. This footnote explains one example:

The Trump Campaign asserted in its special motion to dismiss that the CDA provided immunity for the tweet by Eric Trump, but it did not extend that argument to the tweet by President Trump until its reply. Nevertheless, because the same analysis applies to both tweets and the district court ruled on the merits of the argument with respect to both tweets, we will consider both tweets as well

The appellate court was extremely charitable to bail out this unforced litigation error. And how about this gaffe:

The Trump Campaign at first appears to adopt this exception, including it in its recitation of the applicable law and confusingly citing Barrett v. Rosenthal, 146 P.3d 510, 513, 525 (Cal. 2006), which stands for the opposite proposition. But it goes on to cite Barrett’s pronouncement that “Congress has comprehensively immunized republication by individual [i]nternet users.” And it argues that retweets of information previously published by others are categorically protected by the CDA. Thus, despite the Campaign’s contradictory statements of the law, we construe its argument as contesting both grounds for the district court’s ruling.

Another example of how a broken clock could be right twice a day. They found the right legal principle but didn’t understand it or the precedent around it. The appeals court bailed them out nonetheless. Sometimes I guess it’s better to be lucky than good.

Ugly: Trump’s attitude towards Section 230. Do you remember when Trump tried to eviscerate Section 230 via an executive order? When Trump made the repeal of Section 230 a highlight of his campaign rallies? Or when he vetoed raises for our military personnel because the bill didn’t also repeal Section 230? Despite all of his very public Section 230 hate…Trump enthusiastically embraces Section 230 for himself in the comparative obscurity of court proceedings. I don’t point this out to highlight his ongoing duplicity (you already have seen it dozens of times, and either you care about it or you don’t) but to reiterate the inanity that Trump publicly rails against Section 230 while it is becoming increasingly important to him financially.

(Similarly, you may recall when Trump made a campaign promise to open up libel laws. He didn’t actually do that, and he has tens of millions of reasons to be thankful he failed in making his legal exposure worse).

Case Citation: Coomer v. Donald J. Trump for President, Inc., 2024 WL 1560462 (Colo. Ct. App. April 11, 2024)

The post Section 230 Applies to Tweeted Links to Defamatory Content–Coomer v. Donald J. Trump for President appeared first on Technology & Marketing Law Blog.

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