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President Trump Signs Executive Order Targeting Twitter

President Trump Signs Executive Order Targeting Twitter

On May 26, 2020, President Trump published two tweets saying that California’s proposed mail-in ballots policy would lead to massive fraud and would result in a “rigged election.”[1] The next day, Twitter announced[2] that it had added a label to these tweets as a fact-checking mechanism “to point out incorrect or disputed information about elections”[3]. In a follow-up tweet, Twitter CEO Jack Dorsey wrote: “Per our Civic Integrity policy … the tweets yesterday may mislead people … We’re updating the link on @realDonaldTrump’s tweet to make this more clear.”[4] Trump’s response was to tweet that “.@Twitter is now interfering in the 2020 Presidential Election” and “completely stifling FREE SPEECH, and I, as President, will not allow it to happen!”[5]

On May 28, President Trump issued and signed an Executive Order on Preventing Online Censorship.[6] Section one underscores the importance of free speech to American democracy. It notes:

“The growth of online platforms in recent years raises important questions about applying the ideals of the First Amendment to modern communications technology.  Today, many Americans follow the news, stay in touch with friends and family, and share their views on current events through social media and other online platforms.  As a result, these platforms function in many ways as a 21st century equivalent of the public square.”

It goes on to detail how:

“Online platforms are engaging in selective censorship that is harming our national discourse … Twitter now selectively decides to place a warning label on certain tweets in a manner that clearly reflects political bias.”

Section 2 details specific “protections against online censorship”. Specifically, it limits the scope of immunity from liability under section 230(c) of the Communications Decency Act, 47 U.S.C. 230(c). 

The Executive Order states that “The immunity should not extend beyond its text and purpose to provide protection for those who purport to provide users a forum for free and open speech, but in reality use their power over a vital means of communication to engage in deceptive or pretextual actions stifling free and open debate by censoring certain viewpoints.”

What is of the Communications Decency Act, 47 U.S.C. 230(c)?

47 U.S.C. 230[7] is entitled “Protection for private blocking and screening of offensive material”. It was passed as part of the Telecommunications Act of 1996[8], designed by Congress at the beginning of the Internet age. Congress’s intention was to allow the Internet to flourish by shielding tech giants from being held liable for the content their users post, and how they moderate it.[9]

Section (a) notes that the Internet can only flourish “with a minimum of government regulation.” Section (b) underscores the policy “to preserve the vibrant and competitive free market that presently exists for the Internet … unfettered by Federal or State regulation”

Section (c)(2) addresses protections from “civil liability” and specifies that an interactive computer service provider may not be made liable “on account of” its decision in “good faith” to restrict access to content that it considers to be “obscene, lewd, lascivious, filthy, excessively violent, harassing or otherwise objectionable.” 

In other words, let’s say you go out to dinner and you find the food to be lousy. You post a review on Yelp or Facebook telling all your friends how much you were repulsed by your burger. Section 230(c) prevents the restaurant from suing Yelp or Facebook for hosting your post.

Since President Clinton signed the Act into law, courts have overwhelmingly sided with Internet companies such as Google, Facebook, and Twitter in lawsuits accusing them of hosting inflammatory comments and videos.[10]

President Trump’s Executive Order orders that this provision not be “distorted to provide liability protection for online platforms that … engage in deceptive or pretextual actions … to stifle viewpoints with which they disagree.”

Most notably, the Order states: “When an interactive computer service provider removes or restricts access to content and its actions do not meet the criteria of subparagraph (c)(2)(A), it is engaged in editorial conduct.  It is the policy of the United States that such a provider should properly lose the limited liability shield of subparagraph (c)(2)(A) and be exposed to liability like any traditional editor and publisher that is not an online provider.”

Subsequent sections of the Order put further pressure on Twitter and other social media platforms by calling for heads of each executive department to review its agency’s spending on advertising and marketing to online platforms, as well as direct the Federal Trade Commission and US and State Attorney Generals to further scrutinize these platforms and take action against potential unfair, deceptive, or illegal practices of these sites.

Here is a quote:

“Section 230 should be revoked, immediately, should be revoked, number one. For Zuckerberg and other platforms … It should be revoked because it is not merely an internet company. It is propagating falsehoods they know to be false.”

Interestingly, the quote is from Joe Biden, who has also publicly criticized Section 230 and has advocated for it to be revoked. According to his campaign, “he would seek to propose legislation that would hold social media companies accountable for knowingly platforming falsehoods.”[11]

The arguments against Section 230 by Trump and Biden may sound similar, but their parties criticize the law for different reasons. Republican critics “accuse social medial sites of muzzling conservative voices”, while Democratic critics claim it “has created a fertile environment for the rampant spread of online misinformation, harassment and abuse”.[12]

There are also plenty of proponents in favor of Section 230’s protections. Revoking the protections means holding intermediaries liable for content posted by their users, which could result in forcing providers to perform patrolling functions they never intended to do. As one opinion piece from TheHill.com put it, “Immunity from liability ensures a level playing field and provides autonomy to a diverse set of actors to perform their intended functions … Section 230 has a historical track record of promoting innovation and creativity online. By separating it from partisan politics, we can ensure that these benefits are retained.”[13] Or, as Ashkhen Kazaryan, director of civil liberties with the think tank TechFreedom put it, “Without Section 230, [social media sites] would be swamped in lawsuits and would either over-moderate or stop moderating at all and the platform would turn into the wild west.”[14]

So, where does this leave us now? Nobody really knows.

What is clear is that Executive Orders are relatively “weak” forms of Federal law. Congress can pass a new law to override an executive order and future presidents can undo them.[15] The Federal courts can also strike them down if a court deems such an order to exceed the scope of the President’s authority.[16]

Perhaps most ironically, in 2012, Donald Trump tweeted his disappointment with then-President Obama’s “constantly issuing executive orders that are major power grabs of authority”[17]. Will President Trump’s Executive Order on Preventing Online Censorship change the Internet as we know it, for good or for bad? Or will it be killed by Congress, struck down by a court, or revoked by a future President? Or perhaps even by Trump himself? We will be watching to see how this all plays out.