President Trump today signed an executive order targeting social media platforms by calling for regulations to remove the liability shield from companies that censor speech to engage in political conduct. Critics noted that any regulations would not be able to undo current law, but the EO directs the attorney general to propose legislative language.
Mr. Trump signed the order days after Twitter, Inc. angered him when it added fact-check labels to tweets about mail-in ballots.
“Currently, social media giants like Twitter receive an unprecedented liability shield based on the theory that they're a neutral platform, which they're not,” Mr. Trump told reporters this afternoon before signing the EO, according to a news media pool report. “My executive order calls for new regulations under Section 230 of the Communications Decency Act to make it that social media companies that engage in censoring or any political conduct will not be able to keep their liability shield, that's a big deal.”
The EO directs the National Telecommunications and Information Administration to file a petition with the FCC asking the agency to clarify section 230.
Mr. Trump said the EO instructs the Federal Trade Commission to prohibit social media companies from engaging in “any deceptive acts or practices” and directs Attorney General Bill Barr to work “cooperatively with the states” to “enforce their own laws against such deceptive business practices.”
“The states have broad and powerful authority to regulate in this arena and they'll be doing it also,” Mr. Trump added. “We encourage them to do it if they see exactly as we’ve been seeing. What they’re doing is tantamount to [a] monopoly you could say, it’s tantamount to taking over the airwaves. Can’t let it happen, otherwise we’re not going to have a democracy. We're not going to have anything to do with a republic.”
The EO also directs the administration to develop policies and procedures to ensure that “taxpayer dollars are not going to any social media companies that suppress free speech,” Mr. Trump said, adding, “They’re rich enough.”
Mr. Trump said he expects critics to take the administration to court, and he also said that there will likely be legislation to accomplish the aims of the order. “I’ve been called by Democrats who want to do this,” he added.
The “Executive Order on Preventing Online Censorship” says, “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. They cease functioning as passive bulletin boards, and ought to be viewed and treated as content creators.”
“Twitter, Facebook, Instagram, and YouTube wield immense, if not unprecedented, power to shape the interpretation of public events; to censor, delete, or disappear information; and to control what people see or do not see,” the EO adds. “As President, I have made clear my commitment to free and open debate on the internet. Such debate is just as important online as it is in our universities, our town halls, and our homes. It is essential to sustaining our democracy. Online platforms are engaging in selective censorship that is harming our national discourse. Tens of thousands of Americans have reported, among other troubling behaviors, online platforms ‘flagging’ content as inappropriate, even though it does not violate any stated terms of service; making unannounced and unexplained changes to company policies that have the effect of disfavoring certain viewpoints; and deleting content and entire accounts with no warning, no rationale, and no recourse.
“Twitter now selectively decides to place a warning label on certain tweets in a manner that clearly reflects political bias. As has been reported, Twitter seems never to have placed such a label on another politician’s tweet,” the EO adds. “As recently as last week, Representative Adam Schiff was continuing to mislead his followers by peddling the long-disproved Russian Collusion Hoax, and Twitter did not flag those tweets. Unsurprisingly, its officer in charge of so-called ‘Site Integrity’ has flaunted his political bias in his own tweets.”
“Section 230 was not intended to allow a handful of companies to grow into titans controlling vital avenues for our national discourse under the guise of promoting open forums for debate, and then to provide those behemoths blanket immunity when they use their power to censor content and silence viewpoints that they dislike,” according to the EO. “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.”
“To advance the policy described in subsection (a) of this section, all executive departments and agencies should ensure that their application of section 230(c) properly reflects the narrow purpose of the section and take all appropriate actions in this regard,” the EO says. “In addition, within 60 days of the date of this order, the Secretary of Commerce (Secretary), in consultation with the Attorney General, and acting through the National Telecommunications and Information Administration (NTIA), shall file a petition for rulemaking with the Federal Communications Commission (FCC) requesting that the FCC expeditiously propose regulations to clarify: (i) the interaction between subparagraphs (c)(1) and (c)(2) of section 230, in particular to clarify and determine the circumstances under which a provider of an interactive computer service that restricts access to content in a manner not specifically protected by subparagraph (c)(2)(A) may also not be able to claim protection under subparagraph (c)(1), which merely states that a provider shall not be treated as a publisher or speaker for making third-party content available and does not address the provider’s responsibility for its own editorial decisions; (ii) the conditions under which an action restricting access to or availability of material is not ‘taken in good faith’ within the meaning of subparagraph (c)(2)(A) of section 230, particularly whether actions can be ‘taken in good faith’ if they are: (A) deceptive, pretextual, or inconsistent with a provider’s terms of service; or (B) taken after failing to provide adequate notice, reasoned explanation, or a meaningful opportunity to be heard; and (iii) any other proposed regulations that the NTIA concludes may be appropriate to advance the policy described in subsection (a) of this section.”
The EO says that the FTC “shall consider taking action, as appropriate and consistent with applicable law, to prohibit unfair or deceptive acts or practices in or affecting commerce, pursuant to section 45 of title 15, United States Code. Such unfair or deceptive acts or practice may include practices by entities covered by section 230 that restrict speech in ways that do not align with those entities’ public representations about those practices. … For large online platforms that are vast arenas for public debate, including the social media platform Twitter, the FTC shall also, consistent with its legal authority, consider whether complaints allege violations of law that implicate the policies set forth in section 4(a) of this order. The FTC shall consider developing a report describing such complaints and making the report publicly available, consistent with applicable law.”
Like the FCC, the FTC is an independent agency and thus the administration cannot direct it to do anything.
The order directs the AG to “establish a working group regarding the potential enforcement of State statutes that prohibit online platforms from engaging in unfair or deceptive acts or practices. The working group shall also develop model legislation for consideration by legislatures in States where existing statutes do not protect Americans from such unfair and deceptive acts and practices. The working group shall invite State Attorneys General for discussion and consultation, as appropriate and consistent with applicable law.” The AG also “shall develop a proposal for Federal legislation that would be useful to promote the policy objectives of this order.”
The EO drew criticism from Democratic FCC Commissioners and Democrats in Congress, the tech and telecom industries, and public interest and civil liberties groups, while it was welcomed by Republican FCC Commissioner Brendan Carr and some Republican lawmakers. An FTC spokeswoman declined to comment.
“This debate is an important one. The Federal Communications Commission will carefully review any petition for rulemaking filed by the Department of Commerce,” said FCC Chairman Ajit Pai.
Mr. Carr welcomed the EO.
“Every speaker in this country has a First Amendment right to free speech. Above and beyond those constitutional guarantees, Congress decided in the 1990s to confer a special and unique set of liability and legal privileges on one set of actors, which it defined as ‘providers of interactive computer services’ in a statutory provision known as Section 230 of the Communications Decency Act,” he said in a statement.
“Congress took that step to empower parents to protect their children from material on Internet sites like the then-popular Prodigy messaging board. And it acted to protect the ‘good faith’ steps taken by those computer services providers. Flash forward over 20 years, and today’s Internet giants and social media companies now benefit from those Section 230 protections when other speakers do not. Yet the federal government has provided virtually no guidance on the ‘good faith’ limitation Congress included in Section 230,” Mr. Carr added. “I welcome today’s Executive Order and its call for guidance on the scope of the unique and conditional set of legal privileges that Congress conferred on social media companies but no other set of speakers in Section 230. I look forward to receiving the petition that the NTIA files.”
“When a social media company represents to Congress and the public that it doesn’t moderate your posts for partisan political reasons, it should be accountable to its commitments just like any other business,” he tweeted.
“Everyone take deep breath on EO, which I haven’t seen,” Republican Commissioner Mike O’Rielly tweeted before the item was released. “@realDonaldTrump has right to seek review of statute’s application. As a conservative, I’m troubled voices are stifled by liberal tech leaders. At same time, I’m extremely dedicated to First Amendment which governs much here.”
Before the order was released, Democratic Commissioner Jessica Rosenworcel criticized it in a statement. “This does not work. Social media can be frustrating. But an Executive Order that would turn the Federal Communications Commission into the President’s speech police is not the answer. It’s time for those in Washington to speak up for the First Amendment. History won’t be kind to silence,” she said.
Her fellow Democrat, Commissioner Geoffrey Starks, said in a statement, “I’ll review the final Executive Order when it’s released and assess its impact on the FCC, but one thing is clear: the First Amendment and Section 230 remain the law of the land and control here. Our top priority should be connecting all Americans to high-quality, affordable broadband. The fight against COVID-19 has made closing the digital divide—and helping all Americans access education, work, and healthcare online—more critical than ever. We must keep our focus on that essential work.” “With this Executive Order, the President is lashing out to punish social media platforms that are seeking to stop the dissemination of misinformation,” House Energy and Commerce Committee Chairman Frank Pallone Jr. (D., N.J.), communications and technology subcommittee Chairman Mike Doyle (D., Pa.), and consumer protection and commerce subcommittee Chairwoman Jan Schakowsky (D., Ill.) said in a joint statement. “His actions pose a clear and present threat to our democracy, far beyond his usual rantings. Online platforms should enforce their codes of conduct to combat disinformation, even when it is spread by right wing extremists and the President himself, but the President has made clear he wants the internet to cower in fear. This retribution is a perfect example of how authoritarian governments, like the Chinese, silence free speech, and the result will be the continued growth of misinformation, hate speech and tribalism online and in our communities.
“We will be watching the FTC and FCC, both independent agencies created by Congress, as well as social media platforms to ensure they are acting in the American people’s best interest and not simply appeasing a self-aggrandizing bully,” the Democrats added.
“Allowing the proliferation of disinformation is extremely dangerous, particularly as our nation faces the deadliest pandemic in history. Clearly and sadly, the President’s Executive Order is a desperate distraction from his failure to provide a national testing strategy to defeat COVID-19,” House Speaker Nancy Pelosi (D., Calif.) said. “As we pray for the families of the 100,000 who have tragically lost their lives, we must focus all our energy on protecting lives and livelihoods, starting with making The Heroes Act law.”
“I have warned for years that this administration was threatening 230 in order to chill speech and bully companies like Facebook, YouTube and Twitter into giving him favorable treatment. Today Trump proved me right. I expect those companies, and every American who participates in online speech, to resist this illegal act by all possible means. Giving in to bullying by this president may be the single most unpatriotic act an American could undertake,” said Sen. Ron Wyden (D., Ore.). “Donald Trump’s order is plainly illegal. After driving our country into an economic and health care disaster, Trump is desperately trying to steal for himself the power of the courts and Congress to rewrite decades of settled law around Section 230. All for the ability to spread unfiltered lies.”
“This Executive Order is egregiously excessive with clearly malevolent intent to suppress free speech. It is a blatant attempt to use the full power of the United States government to force private companies to lie for him,” complained Sen. Richard Blumenthal (D., Conn.). “Whatever the criticisms I may have of current law, Trump’s demagogic meat-ax Executive Order is exactly wrong. This Executive Order is an authoritarian attack against freedom of expression and accountability. It provides no relief to the countless children, victims of human trafficking, and others who have suffered real harms by Big Tech. I am appalled by the President’s attempts to suborn the Federal Trade Commission into his condemnable campaigns when the FTC should be protecting Americans from rampant fraud, scams, and price gouging during a national emergency. President Trump is trying to wield the immense power of the federal governmental as a sledgehammer against the truth. It should be condemned by anyone who believes in the Constitution.”
“Based on media reports, this proposed Executive Order seems designed to punish a handful of companies for perceived slights and is inconsistent with the purpose and text of Section 230,” said Internet Association interim President and Chief Executive Officer Jon Berroya. “It stands to undermine a variety of government efforts to protect public safety and spread critical information online through social media and threatens the vibrancy of a core segment of our economy.”
A Google spokeswoman said, “We have clear content policies and we enforce them without regard to political viewpoint. Our platforms have empowered a wide range of people and organizations from across the political spectrum, giving them a voice and new ways to reach their audiences. Undermining Section 230 in this way would hurt America’s economy and its global leadership on internet freedom.” Twitter, Inc. declined to comment, while Facebook, Inc. did not respond to a request for comment.
“Claims of systemic bias by social media companies are a fiction intended to pressure companies into making content moderation decisions more favorable to the Administration. Setting regulators upon the private sector to achieve that end is a grave misuse of government resources in a time of national crisis,” said Matt Schruers, president of the Computer & Communications Industry Association. “In light of threats including the ongoing pandemic, policymakers have asked digital services to do more to address misinformation online and companies have responded, as Twitter did with one of the President’s tweets this week. Companies rely upon Section 230 to take these steps. Today’s effort to unilaterally reinterpret that law by Executive Order undermines efforts to remove misinformation during a public health crisis, and is not only unlawful, but irresponsible.”
Incompas CEO Chip Pickering said, “We the people built our nation on laws. Laws that protect speech, laws that promote innovation, laws that guarantee our freedoms will flourish forever. Section 230 of the Communications Decency Act is the law of the land for a reason. It gives all people the ability to raise their voice, promote their ideas and create new businesses online.
“Since the dawn of our democracy, promoting free speech while protecting our citizens from harm has always been a collective responsibility that is already enshrined into the 230 law and should not be changed,” Mr. Pickering added. “Social media is an American made engine for economic growth and opportunity. The Executive Order threatens to hurt innovators and small business on Main Street who depend on social media the most.”
"We oppose today's unconstitutional, ill-considered executive order,” said Gary Shapiro, president and CEO of the Consumer Technology Association. “The free speech protections in Section 230 of the Communications Decency Act are the legal underpinning of our vibrant U.S. online economy and our nation's global digital leadership. America's internet companies lead the world and it is incredible that our own political leaders would seek to censor them for political purposes. These same politicians extensively advertise on them and just a few minutes online will reveal these platforms contain a multitude of political views. Section 230 protects these companies as well as any start-up website which hosts others' speech – from community bulletin boards to social media sites to the Fox News comments section.”
Information Technology Industry Council President and CEO Jason Oxman said, “Tech companies make it possible for us all to stay connected, doctors to tend patients remotely, policymakers to communicate with constituents, and students and employees to learn and work from home. These tools thrive with a diversity of viewpoints and are more important than ever. Today's executive order expresses that the First Amendment is the bedrock of American democracy, while at the same time threatening to undermine it by endorsing government censorship of speech. The ability of U.S. citizens to post content online, and of companies to take good faith efforts and offer tools to promote the safe use of that content, is protected by the Constitution and by existing law.”
“This is pure political theatre—and an affront to the Constitution,” said Ashkhen Kazaryan, director-civil liberties at TechFreedom. “The Order is a hodgepodge of outdated and inapplicable precedents combined with flagrant misinterpretations of both the First Amendment and Section 230. The Order claims that Twitter and Facebook are the ‘the functional equivalent of a traditional public forum,’ but the Supreme Court has clearly rejected such arguments—led by none other than Trump appointee Brett Kavanaugh.”
“We believe that free speech and the right to engage in commerce are foundational to the American free enterprise system. Regardless of the circumstances that led up to this, this is not how public policy is made in the United States. An executive order cannot be properly used to change federal law,” said the U.S. Chamber of Commerce.
“The President is using the threat of regulation to try to coerce social media platforms into moderating speech the way the President sees fit. That runs directly counter to the First Amendment,” said Alexandra Givens, president and CEO of the Center for Democracy & Technology. “Congress designed Section 230 so that intermediaries can moderate the content they host. It’s precisely that protection that enables social media companies to take steps to combat mis- and disinformation. President Trump may not like the results of that moderation, but he cannot change the law by fiat.”
Chris Lewis, president and CEO of Public Knowledge, said, “The President does not have the power to rewrite the law, as this Executive Order attempts to do. 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. Along with the First Amendment itself, Section 230 gives platforms like Twitter the ability to adopt specific points of view and to make the kinds of editorial choices that Twitter has made. At the same time, Section 230 only shields platforms from liability for user-posted content, not content the platform itself creates.
“Anyone who disagrees with choices popular platforms make should support policies designed to empower users and increase competition -- not unconstitutional policies designed to regulate speech and reduce the ability of platforms to remove or restrict access to content they find objectionable, as the President has proposed,” Mr. Lewis added.
Free Press Senior Policy Counsel Gaurav Laroia said, “This executive order is a naked attempt by the president to bully into silence Twitter, other social-media sites and anyone who attempts to correct or criticize Trump. This blatant and bungling attempt at censorship is outrageous and unconstitutional. 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. 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.
“The FCC is supposed to be an independent agency, not the censorship or propaganda arm of the White House,” the statement added. “That Brendan Carr, an FCC commissioner, would go on TV cloaking himself in the language of free speech while entertaining Trump’s authoritarian actions is shameful and antithetical to the rights and principles of a free society. Trump could not be more wrong on the law, the facts and the scope of his power. Neither independent agencies like the FCC 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. Section 230 was written to protect free speech on the open internet. Changing Section 230 is Congress’ prerogative, not the president’s by fiat. His poorly written executive order is an embarrassment and would be laughable if it weren’t so dangerous.”
“Trump's executive order on social media is a silly distraction from a serious debate,” said American Economic Liberties’ Executive Director Sarah Miller. “This executive order is basically a request to independent agencies, the Federal Communications Commission and the Federal Trade Commission, to act in some vague manner. The President cannot single-handedly change a law, he cannot order independent agencies to act, and his executive order reflects that.”
“There are serious proposals in Congress from members on both sides of the aisle attempting to grapple with the difficult problem presented by Section 230. There are important reasons to restructure the law to make the web more open and free, but this executive order is a distraction and we should all have learned to ignore distractions like this from Trump by now,” added Ms. Miller.
But Sen. Ted Cruz (R., Texas) welcomed the order. “This executive order is an important acknowledgement that we can no longer afford to let Big Tech go unchecked,” he said. “For too long, social media platforms like Twitter have hid behind their opaque algorithms and Section 230 immunity to target speech with which they disagree and advance their own political agendas. This doesn’t just stifle Americans’ free speech; it shapes what Americans see, hear, and ultimately think about the major issues facing our country, including how those issues should be addressed and who should be elected to address them.” —Paul Kirby, [email protected]
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