Does Trump Have the Authority to Issue an Executive Order Targeting Bias by Social Media Companies?

By Rachel Alexander Published on June 4, 2020

President Trump has finally had enough of social media censorship of conservatives. And Twitter asked for it. The company went after him, tacking a warning on a pair of his tweets about voter fraud. So right after it last Thursday, he issued an executive order eliminating liability protections social media companies have as “platforms.”

Platforms allow others to post content without editorial interference. That legally protects them from being charged or sued for what appears on their site. The idea is that the companies couldn’t function if they had to review everything on the site. They’re like freighters carrying hundreds of containers. The shipping company isn’t responsible if one of those containers holds illegal drugs.

Publishers choose what appears on their site. They have no such protections. They’re expected to make sure that they only publish lawful material.

In other words, platforms have immunity, publishers don’t. But the social media companies violated the terms. They take advantage of their status as platforms. They behave as publishers by making editorial decisions about content. But they can’t have it both ways. If they want to control the content, that will make them publishers. And if they decide to be publishers, they will not be immune from lawsuits. 

Trump explained this at the press conference announcing the Executive Order on Preventing Online Censorship: “The choices that Twitter makes, when it chooses to suppress, edit, blacklist, shadowban are editorial decisions, pure and simple, they are editorial decisions.” He went on, “What they choose to fact check and what they choose to ignore or promote is nothing more than a political activism group.”

Besides Twitter, the order would apply to Facebook, Google’s YouTube and many others.

FCC Called to Regulate

Excerpt from the Executive Order on Preventing Online Censorship

In a country that has long cherished the freedom of expression, we cannot allow a limited number of online platforms to hand pick the speech that Americans may access and convey on the internet. This practice is fundamentally un-American and anti-democratic. When large, powerful social media companies censor opinions with which they disagree, they exercise a dangerous power. … These platforms function in many ways as a 21st century equivalent of the public square.

The order asks the FCC to define actions from social media companies that are “deceptive, pretextual, or inconsistent with a provider’s terms of service.” Actions that are the result of “inadequate notice, the product of unseasoned explanation, or having been undertak[en] without a meaningful opportunity to be heard” are outside the bounds of “good faith.”

Section 230 (c)(1) of the Communications Decency Act shields the sites from liability for the content generated entirely by third parties. Section 230 (c)(2) gives them immunity for “good faith” efforts to filter or remove objectionable content. That includes content that is “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.” That is not considered editorializing and preserves their immunity.

The Electronic Frontier Foundation, a longtime advocate of free speech online, says the order violates the First Amendment. EFF says it erroneously combines the two sections into one, assigning (c)(2)’s good faith protection to (c)(1) as well. EFF says courts have clarified that the sections are separate. The order asks agencies to define what “good faith” means.

FCC May Not Have Jurisdiction

EFF also claims that the FCC doesn’t have authority over the social media companies. Its jurisdiction covers the communications infrastructure industry (companies such as AT&T, Comcast, Frontier) as well as the airwaves.

So far, courts have held that the big tech companies are engaging in free speech as publishers and so cannot be regulated. At the same time, they are private actors that cannot be transformed into state actors constrained by the First Amendment.

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But other court decisions say otherwise. Courts held recently that Trump can’t block people on Twitter because the First Amendment applies to it as a public forum. If Trump’s tweets are considered free speech in a public forum, then why aren’t everyone’s tweets considered similarly?

Is Trump or Congress Implementing the Order?

EFF also claims that Congress did not give the president the power to interpret or implement Section 230. That may be true. But the order actually instructs the attorney general to create a proposal for Congress to implement the order. It preserves the separation of powers.

Sen. Senator Josh Hawley (R-Mo.) introduced legislation last year that would make platforms’ CDA 230 immunity contingent on certifications of “political neutrality” issued by the Federal Trade Commission. Providers of interactive computer services would need to prove to the FTC “by clear and convincing evidence” that they haven’t taken steps to “moderate information … in a politically biased manner” at any point over the preceding two years.

This is headed for the courts to decide. Big tech has mostly kept quiet about the order, with the exception of Facebook’s Mark Zuckerberg. He criticized Twitter’s actions right before the order came out. Tech executives told Vox that they’re not speaking up since they believe the courts will strike it down. However, it’s tough to predict how the Supreme Court will come down. The decision might not break down on conservative-liberal lines. And if it does, Chief Justice Roberts has proven to be a wildcard, voting sometimes with the justices on the left.

Regardless, the order serves as a wake-up call to big tech to stop the censorship. Conservatives are fed up with it and want something done. Things escalated between Twitter and Trump after Trump announced the order. Twitter hid one of his tweets, saying it glorified violence against the rioters. Trump responded in a tweet,

 

Rachel Alexander is a senior editor of The Stream. Follow her on Twitter at Rach_IC. Follow The Stream at streamdotorg. Send tips to rachel.alexander@stream.org.

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