May 28, 2020 — President Donald Trump is preparing to sign an executive order that would eliminate protections under Section 230 of the Communications Decency Act for big technology platform companies, or at least refocus how Section 230 is applied, according to a report from The New York Times Thursday, as well as other press reports.
Section 230, often termed one of the most important laws governing the internet, gives internet companies immunity from liability for most user-generated speech on their platforms, allowing them to moderate content either aggressively or with a light touch.
According to the Times, the White House has drafted an executive order that refers to the “selective censoring” by social media companies. The report said the draft would allow the Commerce Department to try to refocus Section 230, and let the Federal Trade Commission develop a tool for reporting online bias.
It would also, according to the report, limit how federal dollars can be spent to advertise on social media platforms.
CNN reported that the executive order would ask the Federal Communications Commission for new regulations "clarifying when a company's conduct might violate the good faith provisions of Section 230." Additionally, according to CNN, the draft order calls for the Justice Department to work with state attorneys general on allegations of anti-conservative bias.
Conservative politicians, including Sens. Josh Hawley, R-Mo., and Ted Cruz, R-Texas, have long claimed that tech platforms exhibit an anti-conservative bias. This allegation has been fiercely fought by tech platforms, Democratic politicians and many others.
Multiple advocacy groups have already blasted the reported executive order.
“Trump could not be more wrong on the law, the facts and the scope of his power,” Free Press Senior Policy Counsel Gaurav Laroia said. “Neither independent agencies nor other executive-branch agencies like the Department of Commerce have any role to play in implementing, adjudicating or deciding any matter regarding Section 230.”
It is unclear how this reported executive order could purport to contravene the language of the law as it exists in Section 230. But if this order is issued, and were to survive a certain court challenge, it would appear to place federal agencies into a position of being responsible for the moderation of unprecedented levels of online content.
Since Section 230 is part of a law, as president Trump does not have the authority to alter it without congressional approval, nor does he have the authority to confer new legal powers on the FTC or the Federal Communications Commission. It is also important to note that the legal protections of Section 230 are not conditioned on tech platforms acting in a neutral manner.
“The President does not have the power to rewrite the law, as this Executive Order attempts to do,” Public Knowledge CEO Chris Lewis said. “Section 230 grants platforms the freedom to make editorial choices with respect to content posted by users — including senators and the President of the United States — according to the plain text of the statute, congressional intent, and every court decision on this matter.”
One such decision, from a federal appeals court on Wednesday, was the rejection of a lawsuit from far-right commentator and activist Laura Loomer and conservative legal organization Freedom Watch against several big tech companies, including Twitter, from which Loomer is banned.
“Freedom Watch’s First Amendment claim fails because it does not adequately allege that the Platforms can violate the First Amendment,” the ruling said. “In general, the First Amendment ‘prohibits only governmental abridgment of speech.’”
Twitter came under fire on Tuesday for failing to remove a series of tweets in which Trump promoted conspiracy theories about an intern who died from an undiagnosed heart condition while working in the office of then-Florida congressman Joe Scarborough. The tweets drew broad criticism from politicians on both sides of the aisle.
However, Twitter did take action on two of the President’s tweets about voting by mail, marking them with a link encouraging readers to “Get the facts about mail-in ballots.”
While the annotation was fully in line with Twitter’s official misinformation policies, Trump tweeted in response that “Twitter is completely stifling FREE SPEECH, and I, as President, will not allow it to happen,” sparking the proposed executive order.
In other tweets, Trump added that if tech companies fail to comply, the government will “strongly regulate, or close them down.”
“Trump’s threat to use the executive branch’s power to punish internet companies for Twitter’s mild fact check of his statements is exactly the kind of abuse of power that the Constitution and our First Amendment were written to prevent,” Laroia said. “It’s undoubtedly 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.”
For additional context on the Justice Department's attitude toward Section 230, read "Attorney General Bill Barr Calls for ‘Recalibrated’ Section 230 as Justice Department Hosts Tech Immunity Workshop," Broadband Breakfast, February 19, 2020.
Editor's Note: St. John's University Law School Professor Kate Klonick posted a leaked copy of the draft order.
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