Washington, D.C.—The Electronic Frontier Foundation (EFF) and the Center for Democracy and Technology (CDT) today filed a Freedom of Information Act (FOIA) lawsuit against the government to obtain records showing whether federal agencies have cut their advertising on social media as part of President Trump’s broad attack on speech-hosting websites he doesn’t like.

In May Trump issued an executive order in retaliation against platforms that exercise their constitutionally-protected rights to moderate his and other users’ posts. The order gave executive departments and agencies 30 days to report their online ad spending to the Office of Management and Budget (OMB). The Department of Justice (DOJ) was charged with assessing the reports for alleged “viewpoint-based speech restrictions” that would make them “problematic vehicles” for government ads.

EFF and CDT seek records, reports, and communications about the spending review to shine a light on whether agencies have stopped or reduced online ad spending, or are being required to do so, based on a platform’s editorial decisions to flag or remove posts. Although the government has broad discretion to decide where it spends its advertising dollars, reducing or denying federal dollars they previously planned to spend on certain platforms based on officials’ perception of those entities' political viewpoints violates the First Amendment.

“The government can’t abuse its purse power to coerce online platforms to adopt the president’s view of what it means to be ‘neutral,’” EFF Staff Attorney Aaron Mackey. “The public has a right to know how the government is carrying out the executive order and if there’s evidence that the president is retaliating against platforms by reducing ad spending.”

On top of being unconstitutional, the ad spending reduction is also dangerous. Federal agencies advertise on social media to communicate important messages to the public, such as ads encouraging the use of masks to fight the spread of COVID-19 and warning of product recalls. Pulling online ads could have a potentially serious impact on the public’s ability to receive government messaging.

“The President continues his attempts to bully social media companies when he disagrees with their editorial choices. These threats are not only unconstitutional, but have real-life implications for internet users and voters alike,” said Avery Gardiner, CDT’s General Counsel. “CDT will continue to push for these documents to ensure the U.S. government isn’t using the power of its advertising purse to deter social media companies from fighting misinformation, voter suppression, and the stoking of violence on their platforms.”

EFF and CDT filed FOIA requests with OMB and DOJ in July for records; neither agency has responded or released responsive documents.

Trump issued the executive order aimed at online speech platforms a few days after Twitter marked his tweets for fact-checking because they were “potentially misleading.”

Private entities like social media companies, newspapers, and other digital media have a First Amendment right to edit and curate user-generated content on their sites. Trump’s order, which contains several provisions, including the one at issue in this lawsuit, would give the government power to punish platforms for their editorial decisions. It would strip them of protections provided by 47 U.S.C. § 230, often called Section 230, which grants online intermediaries broad immunity from liability arising from hosting users’ speech.

For the complaint:
https://www.eff.org/document/eff-cdt-v-omb-doj-foia-complaint

For more on the Executive Order:
https://www.eff.org/deeplinks/2020/05/dangers-trumps-executive-order-explained