UPDATE: President Donald Trump plans to sign an executive order social media on Thursday, with a draft of the measure calling for a review of a key law that gives immunity to Twitter, Facebook and other sites from lawsuits over third party, user-generated.
The order follows the president’s threats to “strongly regulate” or close down social media platforms after Twitter slapped a fact-check link on two of his tweets. The president does not have the authority to shut down the platforms, and significant enforceable regulation would likely have to come from an act of Congress.
But a draft of his executive order that circulated early on Thursday morning called for taking action through the FCC, the Federal Trade Commission and the Department of Justice.
It calls for the FCC to take up regulations that could limit the scope of immunity granted to platforms under Section 230 of the Communications Decency Act.
For instance, Twitter cannot be held liable if a user posts defamatory content, and it also has immunity for removing content that it, in “good faith,” restricts access to “obscene, lewd, lascivious, filthy, excessively violent, harassing or otherwise objectionable content.”
But under the draft executive order, the FCC would be tasked with clarifying whether tech platform’s moderation of the third party content is made in “good faith,” including whether the sites are being deceptive or inconsistent with their terms of service, or made with “unreasoned explanation.”
The order also would reestablish a “tech bias reporting tool,” where the White House could take complaints of online censorship.
The FTC would be tasked with looking at whether those complaints violate the law. The agency also would have to do a report on those complaints and make it publicly available.
The Attorney General also would establish a working group of state attorneys general to look at the “potential enforcement of state statutes that prohibit online platforms from engaging in unfair and deceptive acts and practices.” The working group would collect information that includes “monitoring or creating watch-lists of users based on their interactions with content or users.”
Trump’s move to an executive order drew a rebuke from the industry. Steve LoBianco, the president NetChoice, a trade group that represents Google, Facebook and Twitter and promotes light touch regulation, said in a statement, “Conservatives should be very afraid of future administrations following President Trump’s example to bully social media platforms into suppressing political speech.”
“By harassing America’s tech industry, the administration emboldens foreign governments to control online expression,” he added. “Conservatives have truly lost their way if they believe that the government should dictate the terms of online political speech.”
If the FCC does take action, it will likely create further division among the commission’s split of three Republicans and two Democrats.
Brendan Carr, a Republican, appeared on Tucker Carlson Tonight on Wednesday, and accused the far left of going after tech platforms “for the crime of being neutral, in their view, in the 2016 election. And they are committed to making sure that these online platforms are not neutral.”
He said that if the platforms wanted to be “political actors,” they shouldn’t necessarily have these special bonus protections that only that set of political actions have in Section 230.” He added, “You can’t go to Congress and say, ‘We’re neutral politically, then engage in this type of conduct. That is the type of unfair and deceptive business practice that would get a lot of other companies under a lot of scrutiny, including from the Federal Trade Commission.”
Michael O’Rielly, another Republican, wrote on Twitter, “Everyone take deep breath on EO, which I haven’t seen. @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.”
But Commissioner Jessica Rosenworcel, a Democrat, said 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.”
Twitter CEO Jack Dorsey further clarified their decision to place fact-check links on two of Trump’s tweets. He wrote that the president’s tweets “may mislead people into thinking they don’t need to register to get a ballot (only registered voters receive ballots). We’re updating the link on @realDonaldTrump ’s tweet to make this more clear.”
On Wednesday, he wrote, “Republicans feel that Social Media Platforms totally silence conservatives voices. We will strongly regulate, or close them down, before we can ever allow this to happen. We saw what they attempted to do, and failed, in 2016. We can’t let a more sophisticated version of that happen again. Just like we can’t let large scale Mail-In Ballots take root in our Country. It would be a free for all on cheating, forgery and the theft of Ballots. Whoever cheated the most would win. Likewise, Social Media. Clean up your act, NOW!!!!”
On Tuesday, when Trump claimed that California’s move to send mail-in ballots to all voters would lead to widespread fraud, Twitter put a link on one of his tweets for the first time. The link, “Get the facts about mail-in ballots,” directed users to news stories debunking claims of election cheating. They have yet to do the same on his latest tweets, even though they make the same claims about mail-in voting.
Trump has been on a tear about Twitter’s action, while other Republicans have demanded that Twitter slap fact-check labels on Democrats’ tweets.
Trump’s threat to regulate the platforms isn’t entirely new. His former chief strategist, Steve Bannon, advanced the idea of classifying such platforms as Facebook and Google like utilities. But Trump’s administration has actually deregulated another part of the internet ecosystem, as the Republican-controlled FCC has rolled back net neutrality rules on internet providers like AT&T and Comcast.
Shutting down the platforms would take an act of Congress or perhaps the FCC or FTC. It also would provoke a constitutional challenge. The First Amendment limits the government’s attempts to regulate speech, not that of private platforms which have their own terms of service for users.
Still, Facebook, Twitter, YouTube and other sites enjoy broad immunity from third-party content placed on their sites via Section 230 of the Communications Decency Act, and that has been one avenue some Republicans have targeted as a way to fight what they see as bias against conservative voices. Last year, Sen. Josh Hawley (R-MO) introduced a bill last year that would have amended the act to remove the liability protection unless the platforms could show via audit that their content removal practices were politically neutral.
The legislation did not garner any co-sponsors, but Sen. Marco Rubio (R-FL) suggested on Tuesday that platforms should no longer get a shield from liability if they are exercising editorial judgments like a publisher. The Section 230 protects the platforms from defamation lawsuits over third party content posted on their sites.
Meanwhile, some free speech advocates are sounding the alarm over Trump’s latest threat.
Suzanne Nossel, CEO of PEN America, said in a statement, “His call to punish Twitter for its fact-checking of his blatantly false statements is akin to threatening to shut down a newspaper or a TV network for a report considered unfriendly. Not only does he not have the authority to silence these platforms and users, the constitution expressly forbids using the power of government to exact reprisals against speech. He isn’t protecting free speech; he is chilling it.”
Jameel Jaffer, executive director at the Knight First Amendment Institute at Columbia University, said that there was no First Amendment issue with Twitter putting a label on Trump’s tweets.