Donald Trump is preparing to sign an executive order that could erode legal protections for social media companies for content posted on their platforms, potentially opening them to liability claims over controversial content.
If it survived anticipated legal challenges, the order could also allow federal regulators to sanction companies that in the government’s judgment are not even-handed in their editorial practices.
Scholars warned that Trump’s order was legally toothless, and said it was designed as an effort to spur controversy and create a distraction as the country passed on Wednesday the grim milestone of 100,000 deaths from Covid-19.
But the order was the president’s latest blow in an escalating battle with big tech companies including Twitter and Facebook.
Twitter on Monday affixed a fact-check link for the first time ever to two tweets Trump sent in which the president lied about the safety of mail-in voting.
Twitter said the tweets violated its “civic integrity policy”, which bars users from “manipulating or interfering in elections or other civic processes”.
The president, however, accused the company of doing just that – interfering in an election – in a tweet Wednesday night. “Big Tech is doing everything in their very considerable power to CENSOR in advance of the 2020 Election,” Trump wrote, adding, “I will never let it happen!”
Trump’s executive order, a draft of which was published online, would accuse the social media platforms of “selective censoring” and attempt to remove legal protections for those companies under Section 230 of the Communications Decency Act.
“This order is an effort to intimidate technology companies from using tools that are indispensable to protecting the integrity of public discourse online,” said Jameel Jaffer, executive director at the Knight First Amendment Institute at Columbia University. “Whatever else this order may be, it is not a good faith effort to protect free speech online.”
The order would also invite the Federal Trade Commission to flag purported online bias and prohibit federal spending on advertising or marketing on the platforms.
The order was subject to legal challenges, and it was unclear whether the social media companies would assume additional legal liability for content posted on their platforms as a result of the order.
Marty Lederman, a professor at Georgetown University Law Center, said that the order was “all hat” and “no cattle”.
“The draft executive order is full of sound and fury, signifying nothing,” Lederman tweeted. “Mostly [it] amounts to directing the Department of Commerce to petition the Federal Communications Commission (FCC) for a proposed regulation to ‘clarify’” laws limiting the tech companies’ liability.
The White House did not consult with the FCC before announcing the order, CNN reported.
“This initiative coming from the White House threatens to do far more harm than good to the cause of responsible, constitutional and effective government regulation of social media,” Phil Napoli, a professor of public policy at Duke University, said in a media statement.
Tiffany Li, a professor at Boston University Law school, tweeted that such an executive order “claims tech platforms are doing something they’re not, in violation of an incorrect interpretation of law, and tasks agencies it can’t task to look into the things that aren’t being done that wouldn’t be wrong.”
But Trump touted the move as a watershed for online speech. “This will be a Big Day for Social Media and FAIRNESS!” he tweeted.
By mounting battle on companies such as Twitter and Facebook, Trump could risk damaging platforms that have been instrumental to his political career. Twitter regularly carries his messages to 80m people and his campaign manager credited a Facebook advertising campaign with Trump’s 2016 victory.
Facebook founder Mark Zuckerberg suggested in a Fox News interview set to air Thursday that it was inappropriate for Twitter to flag misleading messaging by Trump.
“I just believe strongly that Facebook shouldn’t be the arbiter of truth of everything that people say online,” Zuckerberg said. “Private companies probably shouldn’t be, especially these platform companies, shouldn’t be in the position of doing that.”
Facebook, Twitter and other social media platforms were criticized in the wake of the 2016 election for hosting foreign propaganda campaigns designed to heighten ideological and identity-based antagonisms in the US political and social spheres. Afterward, Zuckerberg went before Congress and offered assurances that the company was taking measures to limit messaging designed to cripple elections.
Despite the friendliness of the big social media networks to Trump’s cause, conservative media circles frequently air accusations that the companies practice an editorial bias against conservative voices. Each of the companies has rules against racist speech and other hate speech.
“Twitter is engaging in 2020 election interference,” Florida Republican Matt Gaetz, a vocal Trump defender, said on a podcast hosted by former Trump adviser Steve Bannon, in comments flagged by CNN. “They are putting their thumb on the scale.”
