Breaking: Before bashing tech’s legal shield, Trump used it to defend himself in court

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Saturday, june 6, 2020

President Donald Trump last week escalated his feud with the social media giants by taking aim at a law that protects them from lawsuits over users’ posts. But he hasn’t always been an enemy of those protections: Trump’s lawyers used the same statute three years ago to defend him against a defamation suit.

In a little – noticed legal maneuver in 2017, Trump’s legal team invoked the law while arguing he is not responsible for tweets he reposted that questioned a former reality show contestant’s allegations of sexual assault. They said Trump was “insulated from liability” because he didn’t create the original content.

The contrast highlights a tension between Trump’s rhetoric railing against Silicon Valley titans like Twitter and Facebook and the actions of his legal team and even his own administration, which has separately pushed to include language mirroring the legal shield in major U.S. trade deals.

Trump has attacked Section 230 of the Communications Decency Act — a 1996 law that broadly immunizes digital service providers from liability over user-generated material — following Twitter’s decision to add fact-checking and warning labels to some of his tweets.

Trump, who contends that social media platforms discriminate against conservatives, signed an executive order last week asking regulators to reinterpret the law in a way that narrows its protections. He also called for Congress to repeal the statute entirely.

“Twitter is doing nothing about all of the lies & propaganda being put out by China or the Radical Left Democrat Party. They have targeted Republicans, Conservatives & the President of the United States,” Trump tweeted Friday. “Section 230 should be revoked by Congress. Until then, it will be regulated!”

It was a very different tone than that struck by Trump’s attorneys in the 2017 motion to dismiss allegations in New York state court by Summer Zervos, a former contestant on Trump’s hit show “The Apprentice.” She said in a lawsuit that Trump had defamed her by publicly denying her allegations that he had made unwanted advances and groped her in the 2000s.

In the suit, Zervos’ legal team cited tweets reposted by Trump from another user, John Barry, that questioned her allegations and another thatcalled Zervos’ accusations a “hoax.” But Trump’s lawyers fired back that Section 230 released Trump from liability.

Trump’s legal team argued that because the president “did not provide the content of the information contained in Mr. Barry’s statements posted to the Internet or the retweets, he is insulated from liability under Section 230.” The move was one of several tactics deployed by the president’s lawyers to fend off the suit, which is still being fought in New York state courts. Trump’s lawyers havealso argued the president is broadly immune from lawsuits filed in state courts while he is in office.

A White House spokesperson declined to comment on the matter, and a spokesperson for Trump’s outside counsel at the law firm Kasowitz Benson Torres LLP did not immediately respond to a request for comment. Trump attorney Marc Kasowitz, who led the filing in 2017, did not immediately offer comment.

Trump’s recent railing against Section 230 alsocontrasts with efforts by his administration to include language mirroring its protections in U.S. trade pacts, including the landmark United States–Mexico–Canada Agreement.

An array of lawmakers, including House Speaker Nancy pelosi and GOP Sen.

Ted Cruz,  have pushed back on the effort and called on the Trump administration to strike such language from its discussions over major trade agreements, citing a need to revise the legislation amid a litany of concerns about how social media companies moderate content online. That bid has thus far failed, marking a major victory for the tech industry,

 which has long regarded its liability protections as a key to the proliferation of the internet economy.

Trump has not publicly said whether Section 230-like provisions should be stricken from U.S. trade pacts.

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