President Trump signed an executive order Thursday to try and limit liability protections long afforded to social platforms, an action that many experts say is on dubious legal footing.
The order comes after two days of tension between the president and Twitter—typically the president’s preferred method of communicating—after the social media company took the unprecedented step to place fact-check labels on two of his tweets related to mail-in ballots. The president has threatened to shut down social platforms for allegedly interfering with the election.
But the president cannot shut down private companies for their political speech, and his executive agencies have almost no control over publishers’ speech.
In retribution for Twitter’s action—which neither removed the misleading tweets nor banned Trump, though Twitter could legally do so—Trump moved to alter a decades-old provision that some have called the “26 words that created the internet.”
Section 230 of the 1996 Communications Decency Act gives protection to online platforms to regulate content on their websites and removes most liability for what third parties publish (otherwise known as user-generated content).
During the signing ceremony for Trump’s executive order, Attorney General William Barr said the Justice Department is writing proposed legislation on Section 230 but has not finalized anything.
Changes to Section 230 must be made with congressional approval, which is unlikely in a divided Congress.
The executive order instructs the Commerce Department to request that the Federal Communications Commission call a proceeding to review Section 230, which the FCC does not have the power to change. It also instructs the Federal Trade Commission to review political bias on social media platforms as “unfair or deceptive” business practices. Neither government entity can discriminate based on political speech, according to legal experts.
The executive order also recommends that federal agencies withdraw or scale back advertising on platforms that display political bias. After that, the DOJ will “assess whether any online platforms are problematic vehicles for government speech due to viewpoint discrimination, deception to consumers, or other bad practices,” the order states. While the government is allowed to spend money as it chooses, Twitter is also allowed to moderate content on its platform as it chooses.
A spokesperson for Twitter declined to comment on the executive order, but CEO Jack Dorsey tweeted Wednesday night, “Fact check: there is someone ultimately accountable for our actions as a company, and that’s me.” He also retweeted a New York Times reporter who suggested everyone actually read Section 230.
The ‘techlash’ storm was already brewing in D.C.
As the “techlash” in Washington has escalated in recent years—on issues related to antitrust, content moderation, human rights, misinformation and more—some think tanks and lawmakers have already begun taking another, legal look at Section 230 protections and are reconsidering the value of the provision nearly 25 years after it was passed.
One such consideration would be to create incentives for companies that remove child pornography and other abusive and illegal content under the The Eliminating Abusive and Rampant Neglect of Interactive Technologies, or EARN IT, Act introduced by Sens. Richard Blumenthal, D-Conn., Lindsey Graham, R-S.C., and others.
Another bill from Sen. Josh Hawley, R-Mo., an ardent critic of Silicon Valley, would make the protections conditional on platforms performing “content moderation that is politically neutral,” a stipulation that many see as an unconstitutional viewpoint-based regulation.
Sen. Ron Wyden, D-Ore., who co-authored Section 230, maintains that removing these protections would hurt startups rather than large corporations that can afford the legal fees. “The biggest tech companies have enough lawyers and lobbyists to survive virtually any regulation Congress can concoct,” Wyden wrote in a Washington Post op-ed in February.
Wyden said Thursday that the executive order is an attempt to “bully companies like Facebook, YouTube and Twitter into giving him favorable treatment.”
Olivier Sylvain, a professor at Fordham University School of Law and an expert on Section 230, called the draft executive order, which leaked earlier today a “disaster.” The text of the draft was very similar to the finalized order signed at the end of the day. Sylvain has previously recommended changes to platforms’ liability affordances.
“Even as a longstanding critic of the way in which courts have interpreted Section 230, I am dumbfounded by the way in which the White House would have agencies interpret the provision to go after political bias,” Sylvain said.
Should the FCC have more power?
Even before Trump signed the official order, FCC members debated the draft. Jessica Rosenworcel, a Democratic member of the FCC, said the executive order would “turn the Federal Communications Commission into the President’s speech police.”
Meanwhile, Republican FCC commissioner Brendan Carr bashed Twitter on Fox News Wednesday, saying social platforms were engaging in “partisan political activity” and that while they have First Amendment rights, they “shouldn’t necessarily have these special bonus protections that only that set of political actors have.”
After the president signed the order, FCC chairman Ajit Pai commented on it, saying the government agency would “carefully review” petitions appropriately filed by the Department of Commerce.
Under Pai’s leadership, the FCC has scaled back regulations for internet service providers including net neutrality, which makes the Trump order to increase the agency’s purview over internet companies even odder. Pai has criticized social media companies in the past but has not advocated for more discretion to regulate them.
Brent Skorup, a senior research fellow at George Mason University’s Mercatus Center, a libertarian think tank, said it would be wrong to afford the FCC additional powers to regulate speech which would ultimately “distract the agency from its important task of improving broadband construction and competition.”
Trump also singled out and tagged Twitter’s head of site integrity Thursday in a tweet that further criticized the platform. “No one person at Twitter is responsible for our policies or enforcement actions, and it’s unfortunate to see individual employees targeted for company decisions,” a Twitter spokesperson said.
On Tuesday, Trump incorrectly claimed that Twitter was impeding his free speech by placing the labels on his tweets that redirected users to information on mail-in ballots, an issue Trump has attacked vehemently amid the Covid-19 pandemic.
In actuality, Twitter is a private company, and the government cannot compel a private company to publish its statements. Twitter also has free speech rights and can complement Trump’s tweets with disclaimers.
Additionally, a federal appeals court has ruled that Trump has violated First Amendment rights on Twitter by blocking critics. The United States Court of Appeals for the Second Circuit held that @realDonaldTrump, Trump’s Twitter account, constitutes a public forum and he cannot choose who can access his tweets by discriminating based on viewpoints.
Jameel Jaffer, executive director of the Knight First Amendment Institute at Columbia University, which successfully sued Trump over his Twitter blocking, said the executive order was illegal because of its retributive origins. “The order was born unconstitutional because it was issued in retaliation for Twitter’s fact-checking of President Trump’s tweets,” Jaffer said in a statement.
Many see Trump’s executive order as little more than a way to bully and intimidate social media companies. Gaurav Laroia, senior policy counsel for the liberal advocacy group Free Press, said the executive order is “the first step down an increasingly dark path of Trump using the power of his office to intimidate media companies, journalists, activists and anyone else who criticizes him into silence.”
The American Civil Liberties Union put it bluntly: “Much as he might wish otherwise, Donald Trump is not the president of Twitter.”