President Donald Trump signed an executive order on Thursday that targets social media companies, claiming that sites like Twitter and Facebook have “unchecked power” to censor and restrict points of view.
First Amendment advocates and tech industry groups quickly raised red flags over the order and doubts about its enforceability.
The order takes aim at a key provision of the law that protects tech platforms from liability for the third party content posted on their sites — whether that be immunity from lawsuits over the material itself or if action is taken to restrict it.
Silicon Valley has credited that immunity, granted in Section 230 of the Communications Decency Act, for the growth of social media and user generated sites in the past two decades. Without it, platforms would be forced to police every piece of third party content to ensure that it does not expose them to lawsuits.
But Trump argued that tech platforms now have “unchecked power to censure, restrict, edit, shape, hide, alter virtually any form of communication between private citizens or large public audiences.”
“There’s no precedent in American history for so small a number of corporations to control so large a sphere of human interaction,” he told reporters.
After Twitter slapped fact-checking links onto two of Trump’s tweets this week, he lashed out at the platforms, threatening to shut them down or impose regulations, while the White House announced plans to issue the order. Trump and other Republicans have long complained of bias and even censorship on Twitter, Facebook and YouTube.
In the executive order, Trump states, “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.”
The order would:
— Direct the secretary of commerce to propose regulations to the FCC that would clarify the circumstances in which tech platforms can restrict content and still enjoy liability protection. Section 230 says that the immunity applies to platforms that, “in good faith,” restrict content that is “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.” The Trump administration argues that the actions of Twitter and other platforms “use their power to censor content and silence viewpoints that they dislike.”
FCC Chairman Ajit Pai, a Republican, said, “This debate is an important one. The Federal Communications Commission will carefully review any petition for rulemaking filed by the Department of Commerce.”
— Direct the Department of Justice to review federal advertising on online platforms to determine whether they are engaging in “viewpoint discrimination.”
— Direct the Federal Trade Commission to consider taking action “to prohibit unfair or deceptive acts or practices” by the platforms. This would be based in part on a review of complaints that the White House received when it launched a “Tech Bias Reporting” too last year.
— Direct the Attorney General to create a working group over the “potential enforcement of state statutes that prohibit online platforms from engaging in unfair or deceptive acts or practices.”
At the White House, Trump framed the executive order as a way to rein in companies that have gotten too big — a concern that has been echoed on both the left and the right.
“Imagine if your phone company silenced or edited your conversations,” Trump said. “Social media companies have vastly more power and more reach than any phone company in the United States.”
But the executive order faces an almost certain legal challenge if it leads to any effort to water down Section 230.
The U.S. Chamber of Commerce, in a statement, said, “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.”
A Twitter spokesperson said that they would have no comment, and a Facebook spokesperson did not immediately return a request for comment. A Google spokesperson 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.”
Meanwhile, trade groups representing tech platforms pushed back against the White House action earlier on Thursday, and even the claims of widespread bias against conservative viewpoints.
“Claims of so-called viewpoint bias rely on isolated anecdotes that are undermined by the fact that politicians and political groups successfully use social media to reach millions of followers every day,” said Jon Berroya, interim president and CEO of the Internet Association, which includes the major platforms as members.
At the press briefing on Thursday, White House Press Secretary Kayleigh McEnany cited specific examples of what she saw as bias against conservative viewpoints. She cited not just Twitter’s fact check labels placed on the president’s tweet, but an instance last year when Dan Scavino, the deputy chief of staff, posted a video on the site and it received a “manipulated media” label.
In March, Scavino posted a clip in which Joe Biden appears to say, “We cannot win this reelection. We can only elect Donald Trump.” In fact, Biden said, “We cannot win this reelection … excuse me … we can only reelect Donald Trump if in fact we get engaged in this circular firing squad here.”
McEnany told reporters, “It is no coincidence that these two unbelievable interventions by Twitter were targeted against the President of the United States and one of the President’s top advisors. This is bias in action.”
She also complained that the makers of the movie Unplanned, an anti-abortion movie, was suspended. Twitter told Fox News that the account was suspended in error and it was later reinstated.
House Speaker Nancy Pelosi, while critical of the platforms, believes that they have not done enough to curtail misinformation. She said that Trump was “encouraging Facebook and other social media giants to continue to exploit and profit off falsehoods with total impunity – while at the same time directing the federal government to dismantle efforts to help users distinguish fact from fiction.”
Others saw the order, ostensibly aimed at tech platform censorship, as instead posing a threat to free speech. First Amendment attorney Floyd Abrams, on his son Dan Abrams’ SiriusXM show, said that it “really has the potential to chill speech.”
Ashkhen Kazaryan, director of civil liberties at the think tank Tech Freedom, said that, if carried out, the FCC would “micromanage how websites work.”
“This would create a new Fairness Doctrine for the Internet — something the Republican Party platform warned against as late as 2016,” Kazaryan said. “The goal here is obvious: to allow Trump’s supporters to ‘work the refs,’ pressuring social media not to moderate content in ways that might hurt them, or even to actively favor them.”
The debate over platforms’ content moderation already is apparent in the way that Twitter and Facebook responded to the idea of posting fact-checks on the president’s tweets. In an interview taped on Wednesday, In a contrast to Twitter’s approach, Facebook’s Mark Zuckerberg told Fox News’ Dana Perino that the site should not be the “arbiter of truth.”
“People should be able to hear what politicians say,” Zuckerberg said.
Asked about Trump’s threat to shut down or heavily regulate the platforms, he said, “In general, I think a government choosing to censor a platform because they are worried about censorship does not strike me as the right reflex there.”
— Jill Goldsmith contributed to this story.