On Thursday, Donald Trump escalated his inane, frothing, and mostly one-sided feud with Twitter and other social media companies he has accused of silencing right-wing voices online to a dangerous, legally questionable new level.
Trump signed an executive order Thursday afternoon that purports to radically alter foundational principles of the modern internet, specifically by tasking the Federal Communications Commission with investigating whether tech companies are using moderation decisions as a pretext to harass, shadow ban, and censor conservatives.
The executive order follows Twitter earlier this week adding a fact-checking module to some of Trump’s tweets promoting a conspiracy theory that Democrats are committing voter fraud en masse. This has sent an administration already hostile to Silicon Valley titans it views as a sort of thought police (and desperate for something to dominate headlines other than its disastrous handling of the coronavirus pandemic) into a frenzy.
“We’re here today to defend free speech from one of the gravest dangers it has faced in American history, frankly,” Trump told reporters on Thursday. “A small handful of powerful social media monopolies control the vast portion of all private and public communications in the United States.”
According to a draft version of the order circulating online, Trump is asserting the power to have the FCC redefine the meaning of a critical section of the Communications Decency Act, known as Section 230, in a manner that would threaten to eviscerate companies like Twitter, Facebook, Google, and YouTube unless they change their policies to favor the kind of free speech preferred by conservatives. Experts told Gizmodo that this policy would undermine the entire internet, though they also agreed the order is mostly a nonsensical rant that relies on executive authority that doesn’t exist.
Section 230 is the bedrock of the internet and the legal basis by which almost every major platform is possible. Its first major provision, (c)(1), guards website owners and users from being “treated as the publisher or speaker of any information provided by another information content provider.” This is not conditional and allows for platforms that rely on aggregated or user-generated content to function without being sued—for example, it prevents someone slandered in a YouTube video from suing YouTube itself. (There are exceptions to this rule, including the copyright enforcement regime.)
The next provision, (c)(2), provides website owners immunity from liability for “any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.” In effect, this shields platforms from facing liability for their content filtering or moderation decisions on Good Samaritan grounds, conditional that those decisions are made in good faith.
The term “otherwise objectionable” is what legislators refer to as a “catchall,” likely included because the bill’s authors—Senator Ron Wyden and former Congressman Chris Cox—were unsure how the internet would evolve. For instance, two decades into the future, a website might need to contextualize the posts of a single powerful user who frequently shares misleading health information or spreads conspiracy theories about voting fraud.
Case law relied on by the courts during the internet’s infancy related largely to cases involving radio broadcasters and book publishers dating back to the 1930s. Publishers were responsible for everything inside their books because part of their job was editing every word. If a book contained something libelous, the publisher was liable. On the other hand, one could not sue the owner of a bookstore for libelous remarks inside a book because it could not reasonably be assumed the seller had read every book on the shelf.
The courts applied these legal theories to early websites, having nothing to base decisions on. If a company attempted to moderate its own pages and forums, the court treated it like a publisher. This meant it was responsible for any libelous remarks posted by its users. But the opposite was also true: If the company did not moderate its sites, the courts acted as if the company was just running a bookstore. How could it know what its users were even doing? The obvious happened: Companies were immediately discouraged from engaging in any kind of moderation—like removing threats, pornography from pages frequented by children, even instructions on how to build bombs.
To remedy the problem, a law was passed allowing internet companies to engage in moderation, even delete content completely off their pages, without being financially penalized by the legal system. This is the only reason websites like Wikipedia and services like Yelp can exist. For companies like Amazon, user reviews would pose a huge liability. Without Section 230, they’d have to shut them down. Nine out of 10 of the most popular websites on the internet, in fact, rely heavily on Section 230 and would essentially vanish overnight without it, crippling the internet economy.
The biggest broadside in Trump’s executive order is a creative reinterpretation of those sections, inconsistent with longstanding judicial understandings of their meaning. First, the executive order claims that liability protections for platforms acting in good faith under (c)(2) do “not extend to deceptive or pretextual actions restricting online content or actions inconsistent with an online platform’s terms of service” (i.e., the mythical anti-conservative discrimination on these platforms). It then takes another massive logical leap, claiming that a platform doing these things forfeits its section (c)(1) immunity. The order also tasks the Commerce Department to petition the FCC with issuing new rules clarifying what “taken in good faith” means, specifically asking the FCC to examine how platforms make moderation decisions:
(1) deceptive, pretextual, or inconsistent with a provider’s terms of service; or
(2) the result of inadequate notice, the product of unreasoned explanation, or having been undertaking without a meaningful opportunity to be heard;
Thus without any sort of mandate from Congress, the Republican-controlled FCC would be tasked with coming up with a list of practices that it deems unfair, deputizing it to potentially have companies not meeting those standards declared as no longer enjoying or having limits imposed on its Section 230 protections. Most FCC decisions are put to a vote, but there are three Republicans on the commission and only two Democrats. The intent of this process is obvious: Trump wants platforms he thinks are conspiring against conservatives to be magically categorized as publishers. That would leave tech companies in much the same situation as a newspaper that printed a libelous column, just at an unfathomable scale. They could be sued into oblivion.
This would break the internet in all kinds of ways and create limitless possibilities for abuse, depending on how the order was enforced. One example: If the Republican goons at the FCC determined that right-wing trolls are being unfairly silenced in the Kinja comments sections, resulting in a total loss of Section (c)(1) protections, that would mean those very same trolls could post a defamatory comment under this article and expose Gizmodo to a lawsuit.
It would also, in turn, have the effect of silencing anyone who uses these platforms, conservatives—and Trump—included. Without the liability shield, social media firms might opt to delete a lot more content.
Fortunately, this Trump tantrum is unlikely to hold any legal weight and is more likely designed to put political pressure on social media firms. For one, the FCC—which, like the FTC, is an independent agency—almost certainly lacks the authority to carry it out.
“The White House can ask the FCC to initiate the rule-making process, but the FCC has the discretion to decline,” Eric Goldman, a professor at the Santa Clara University School of Law and co-director of the High-Tech Law Institute, told Gizmodo via email. “Further, if the FCC were to provide its opinion about interpreting Section 230, that interpretation would not have legal effect because Congress hasn’t given the FCC any authority. As a result, the result of the rulemaking process would be a lovely document that everyone would be free to ignore—and would likely ignore.”
It’s also legal gibberish. Trump’s “attempt to collapse Section 230(c)(1) and Section 230(c)(2)(A) is not persuasive at all,” Goldman added, noting that it “contravenes 900+ cases interpreting Section 230.”
“Section 230(c)(1) says that websites aren’t liable for third-party content,” Goldman added. “This legal immunity does not depend on whether or not the website make its judgments ‘in good faith.’ Adding a good faith requirement to Section 230 would be devastating to the legal doctrine. It would make every lawsuit a much more expensive and unpredictable battle, and it would take years for the courts to reach any consensus on what constitutes ‘good faith.’”
FCC Commissioner Jessica Rosenworcel, one of the FCC’s two Democrats, characterized Trump’s plan as dangerous and unacceptable. “This does not work,” Rosenworcel told Gizmodo via email. “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.”
Another section of the draft order tasks the Federal Trade Commission with considering action against social media firms that engage in “unfair or deceptive acts or practice,” which “shall include practices by entities regulated by section 230 that restrict speech in ways that do not align with those entities’ public representations about those practices.” It also demands the FTC review thousands of unverified reports of conservative censorship submitted to a ludicrous White House portal to determine the validity of complaints “large internet platforms that are vast arenas for public debate, including the social media platform Twitter,” are suppressing “protected speech.”
“The FTC already has the authority to bring enforcement actions without running into Section 230 issues,” Goldman told Gizmodo, specifically citing a case in which the FTC sued an affiliate marketing manager, LeadClick, over deceptive fake news sites set up by its partners. The FTC can also issue as many reports as it wants, but these would be essentially meaningless, as they would be based on thousands of unverified complaints.
Daphne Keller, platform regulation director at the Stanford Cyber Policy Center, told Gizmodo via email that the order “reads like a stream of consciousness tweetstorm that some poor staffer had to turn into the form of an Executive Order. The underlying issues it raises are really important, of course: We need an informed public debate about the power of platforms over public discourse. But that’s not what the EO is. It isn’t reasoned discussion, and for the most part it isn’t even lawmaking, because very few of its passages have real legal consequences.”
The draft order also contains a section titled “Prohibition on Spending Federal Taxpayer Dollars on Advertising with Online Platforms That Violate Free Speech Principles.” Curiously, as noted by Keller in her annotated version of the draft order, this section merely contains an order telling all executive agency chiefs to prepare a report for possible cuts in the future:
Such review shall include the amount of money spent, the online platforms supported, the viewpoint-based speech restrictions imposed by each online platform, an assessment of whether the online platform is appropriate for such agency’s speech, and the statutory authorities available to restrict advertising dollars to online platforms not appropriate for such agency’s speech.
The order may be brimming with nonsense, but as an example of just how far Trump is willing to go to demand the tech industry play by the GOP party line, its authoritarianism is unprecedented in modern history. It’s also yet another extreme attempt to validate Trump’s victimhood narrative, in which the president of the United States and the party controlling almost every branch of the federal government are the victim of a giant conspiracy to silence it.
“In terms of presidential efforts to limit critical commentary about themselves, I think one would have to go back to the Sedition Act of 1798—which made it illegal to say false things about the president and certain other public officials—to find an attack supposedly rooted in law by a president on any entity which comments or prints comments about public issues and public people,” Floyd Abrams, a lawyer specializing in First Amendment issues, told Reuters.
Keller told Gizmodo that she viewed the matter as political theater and a deliberate distraction from issues of far greater public consequence, such as the 100,000-plus deaths from the ongoing coronavirus pandemic. But she also noted that “the theatricality itself matters,” as the Trump administration may have actually crossed a First Amendment line by issuing the threats in the first place.
“The EO is transparently intended to pressure platforms into changing their editorial policies on things like election disinformation,” Keller said. “The government doesn’t have the power to require those changes, though, because of the First Amendment. Pressure like this from state actors—claiming authority that doesn’t actually exist, in order to scare people or companies into compliance—actually can violate the First Amendment.”
Facebook CEO Mark Zuckerberg has apparently already caved, taking to Fox News this week to blast Twitter for fact-checking the president and proclaiming that platforms should not become an “arbiter of truth.”
Facebook has actually repeatedly demonstrated it is one of the world’s foremost vehicles for warping the truth, with its platform implicated in everything from political interference and conspiracy theories to literal genocide. According to a recent Wall Street Journal report, Zuckerberg and other top executives like Facebook policy chief Joel Kaplan have steered the company away from attempting to tone down polarization on the site, despite alarming findings from its own researchers such as that 64 percent of people in extremist Facebook groups joined them at Facebook’s recommendation.
“President Trump will continue his attacks on free speech and the courts will strike them down but in the meantime we expect social media companies to not bend on their responsibility to protect the lives of users and our democracy on their platforms,” Jessica González, co-founder of Change the Terms and co-CEO of Free Press, told Gizmodo in a statement.
“At even the first hint of this unlawful White House action, Facebook’s Mark Zuckerberg immediately caved to the president, arguing that it’s not his job to ensure the American people receive accurate information about voting,” González added. “We shudder to think of how this cowardly position will apply to the unrestrained hate and misinformation on Facebook that threatens the lives of millions under Zuckerberg’s leadership.”
Additional reporting by Dell Cameron