The Executive Order on Social Media

On Tuesday, May 26, 2020, Twitter appended fact checking labels on two tweets alleging evidence of fraud related to mail-in ballots. While not the first time Twitter has done so, it was the first time that the tweets that were labeled belonged to the President of the United States, Donald Trump, marking a substantive shift by Twitter in enforcing its Terms of Service.

In light blue text, Twitter alerted users to “Get the facts about mail-in ballots”. In response, President Trump threatened “Big Tech is doing everything in their very considerable power to CENSOR in advance of the 2020 Election. If that happens, we no longer have our freedom. I will never let it happen!” On a flight back from Florida, “press secretary Kayleigh McEnany told reporters President Trump is going to sign some kind of executive order on social media.” And, by Wednesday evening, a document rumored to be an Executive Order started to circulate the internet.

Thursday afternoon the Executive Order on Preventing Online Censorship was officially signed, claiming: “As a Nation, we must foster and protect diverse viewpoints in today’s digital communications environment where all Americans can and should have a voice.  We must seek transparency and accountability from online platforms, and encourage standards and tools to protect and preserve the integrity and openness of American discourse and freedom of expression.”

Protego Press reached out to several leading experts to get their thoughts on the EO, and the implications to tech companies and free speech.

Shannon McGregor, Assistant Professor, University of Utah: “Trump’s Executive Order threatens to effectively dismantle Section 230 and strip tech platforms of liability protection. Not only would this most likely force social media companies to engage in more regulation of speech (including of Trump himself, who often lobs insults and accusations on Twitter that are currently protected), but would also exacerbate existing inequalities in the so-called “digital public sphere.” Furthermore, as others have pointed out, the EO does not have the ability to do what it proposes to do — but that may not be the goal. If the goal is to wield the incredible power of the presidency to bully social media platforms into interpreting their own policies in ways that favor right-wing speech and undermine faith in democratic institutions, well — then you could say the president has already achieved that goal, given that this sort of rhetoric is not subject to regulation on Facebook – even though the platform has clear policies against misrepresentations about the voting process.”

Curt Levey, President of the Committee For Justice: “It is unfortunate that most of the attacks on the executive order fail to acknowledge the legitimate concerns motivating the order, namely that content moderation policies on certain social media platforms have a disparate impact on conservative expression and sometimes result in outright anti-conservative bias. Twitter’s decision to single President Trump out for fact-checking appears to be an example of the latter.

That said, while I am sympathetic to these concerns and the executive order’s “commitment to free and open debate on the internet,” the order’s solution – government regulation of private companies’ content moderation policies – is a greater threat than the problem it seeks to address. People on both sides of the aisle should worry about putting the government in charge of policing speech. And conservatives should be particularly worried about giving more power to the federal bureaucracy, unleashing unscrupulous plaintiff’s attorneys by weakening the protection of Section 230, saddling small internet startups with lawsuits and new regulations, and empowering the same activist state attorneys general who have brought us tobacco and climate change litigation.

The Administration cannot order the FCC and FTC, both independent agencies, to take any actions. While the executive order’s more limited approach – petitioning the FCC for rulemaking and directing the FCC to “consider taking action, as appropriate and consistent with applicable law” – is permissible, the FCC rules and FTC enforcement actions that result may be unlawful. Depending on the details, they may well violate the First Amendment rights of social media platforms or interpret Section 230 in a manner inconsistent with the statutory text, its intent, and its interpretation by the courts.”

Professor Olivier Sylvain, Professor of Law at Fordham University, shares: “The Constitution insulates online intermediaries’ editorial decisions to block, take down, or flag lawful content. This prerogative is at its peak when the market for social media platforms is as robust as it is today when there are a variety of ways in which consumers may lawfully communicate with their friends, work colleagues, and acquaintances – from Reddit to Twitter to Facebook to Youtube to Snapchat to Slack.

Twitter has lawfully and, in my opinion, rightfully chosen to flag lawful user content that it finds hateful and opprobrious. These flagging decisions are especially appropriate with regards to misinformation about important public health matters, including preventive treatments for COVID-19 and other dangerous viruses, as well as our voting and electoral processes generally.

Note here that Twitter has not taken this content down. It instead has given users the opportunity to evaluate the veracity of any given user’s posts against conventional wisdom, facts, and science. Their decision to do this in the areas of public health and electoral processes is fully consistent with public policy in those areas. We do not allow pharmaceutical companies or their representatives to promote drugs without identifying harmful side effects. Nor do we allow people to electioneer or misdirect voters about elections and the electoral process. We certainly do not expect to honor such things from top federal officials, let alone the President, for fear of how they can get traction.”

Ellen P. Goodman, professor at Rutgers Law School: “Larry Tribe and Joshua Geltzer wrote an op-ed about how the EO gets First Amendment law totally backwards (i.e., it doesn’t understand that Twitter can do what it wants, but the government can’t).  While that’s true, it’s almost beside the point. This isn’t a serious attempt to regulate.  Look for proof to the stupendously silly stuff about the FCC, which has no authority to do what it is tasked with, and which if it tried to would violate the First Amendment. Or to the totally unsupported reading of the plain language of Section 230. This is an attempt to troll outrage and intimidate the platforms.  One thing that worries me is the danger of good policy proposals being tainted because Trump borrows from them, but deploys them for anti-democratic purposes. The EO ingeniously picks up on and then re-deploys proposals from the pro-democracy policy advocates.

For example,

• The EO wants to leverage government advertising budgets to pressure/punish platforms. Steven Waldman proposes to use the same mechanism to boost local journalism.
• The EO would limit eligibility for Section 230 immunity based on platforms’ good faith belief that content was objectionable.  Karen Kornbluh and I would limit immunity for platform choices to algorithmically promote content.
• The EO would try to get the FCC to regulate Section 230 – authority it clearly lacks now. But others have called for expanded or new regulatory authority over platforms to deal with other problems.

Some will say that shows why it’s a mistake to try to regulate platforms. But for those who favor some platform regulation, there’s a danger that the EO and other approaches deployed to intimidate platforms or enflame culture wars end up commandeering, and thereby undermining, reasonable policy fixes to actual problems.”

Wayne Brough, President Innovation Defense Foundation: “The Executive Order on Preventing Online Censorship raises real concerns about the future of the internet. It is a direct attack on the liability protections provided to social media platforms by Section 230 and introduces new regulations that would turn the internet on its head. Rather than the permissionless innovation that built the internet, the executive order implements government controls that ultimately dampen free speech rather than promote it. The First Amendment was created to protect private voices from undue government interference; calling for social media platforms to be regulated as public forums is a recipe for more censorship and diminished online discourse. Conservatives have a long history of opposing media access mandates, culminating with the elimination of the Fairness Doctrine under President Reagan. The new executive order re-opens the door to the endless litigation and government meddling to weed out bias (“viewpoint-based speech restrictions” in the EO’s terminology) that characterized the era of the Fairness Doctrine. Since its demise, the diversity of voices and the scope of debate ushered in by the internet is unprecedented in human history—far surpassing the contrived conversations under the old media rules. This was made possible by a conscious decision by lawmakers to avoid meddling in the new digital world. Section 230 was critical to the internet’s ability to facilitate these discussions; hobbling social media platforms with new government controls is a good way to end these conversations.”

Joshua Geltzer, Executive Director of the Institute for Constitutional Advocacy and Protection: “This executive order is classic Trump: he claims to have done a lot when in fact he’s done very little, if anything at all.  No executive order can re-define a federal statute, such as Section 230 of the Communications Decency Act.  What’s more, there’s no reason to think that the Commerce Department or Federal Communications Commission has been delegated by Congress the type of rule-making authority that would mean that their interpretation of Section 230 would receive deference by a court.  So it’s not clear that this executive order will, in any meaningful sense, change how Section 230 is understood or applied.  But there’s another critical point to understand here: even if the labels attached by Twitter earlier this week to Trump’s two false tweets about mail-in ballots fall outside the scope of Section 230’s immunity from liability, that doesn’t make them unlawful or wrong or bad.  That just makes them speech of Twitter’s own, subject to the ordinary rules of liability for, say, defamation, that apply when Section doesn’t provide immunity.  And there’s no reason at all–zero–to think that Twitter’s labels were defamatory or otherwise problematic.  So it’s important to understand that, for Twitter to act potentially outside of Section 230’s immunity isn’t to act improperly.  Instead, Twitter would simply be speaking–and, if President Trump thinks that Twitter’s speech is problematic, let him sue Twitter.  Just remember that truth is an absolute defense to any defamation claim!”

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