“President” (I use that title loosely here) Donald Trump is constantly threatening big tech companies with huge consequences and not following through (kind of like his sexual performance with homegirl Stormy Daniels – just ALWAYS falls SHORT!). That includes social media sites, which he both obsessively uses and relentlessly berates for alleged ?anti-Trump bias.? But this week, he went beyond the usual trash talk, issuing an executive order governing how websites can moderate content.
The order follows a feud with Twitter after it fact-checked one of Trump’s tweets, but it’s been brewing since at least 2019 when a social media ?bias? rule was rumored but never revealed (rumors are ALL you need nowadays*). An unfinished draft of the order leaked on Wednesday, full of nonsensical demands and pointless blustering, with many dismissing the rule as simply illegal.
But the final order released yesterday is significantly different from that draft ? and a good deal more troubling. It’s still a tangle of vaguely coherent bad rules ( a lot like tRump’s speeches & press conferences), legally baffling demands, and pure posturing. But it’s easier to see the shape of Trump’s goal: a censorship bill that potentially covers almost any part of the web. Wow, very Orwellian of you Donny my boy…
The order includes some concrete (if highly shaky) policy proposals, for example:
- Websites of any size should lose all Section 230 protections if they don’t follow their terms of service or provide sufficient notice when removing content
- The Attorney General should judge whether any websites receiving advertising money from the government are ?problematic vehicles for government speech? because of ?viewpoint discrimination?
- The Federal Trade Commission should investigate websites for deceptive advertising based on their terms of service
It also includes a lot of vague implications that are never substantiated and may be unintentional:
- The Federal Communications Commission can write laws and send them to Congress now
- Large social media companies are subject to the same rules as the government
- Facebook should host porn (WHAT???)
But that only scratches the surface of this ludicrously expansive mess.
So it’s worth going through the order in more detail ? partly to understand the actual policy changes it’s proposing, but also to establish what Trump probably can’t do and pin down when he seems to just be making stuff up. We?ve bolded some especially important parts for emphasis.
Let’s start with the introduction, which is mostly bluster with no particular legal foundation ? and actually goes opposite the courts in one key instance:
Free speech is the bedrock of American democracy. Our Founding Fathers protected this sacred right with the First Amendment to the Constitution. The freedom to express and debate ideas is the foundation for all of our rights as a free people.
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.
These paragraphs introduce the two sneaky rhetorical tricks that Trump’s executive order is based on. The first is defining the First Amendment simply as the right to ?express and debate? ideas, carefully not mentioning that the First Amendment also bars forcing people (or companies) to speak ? because, ironically, Trump’s entire goal is forcing social platforms to distribute speech they would otherwise moderate.
Trump’s rule defines websites of any size, not just Facebook and Twitter, as ?online platforms?
The second is the generic term ?online platforms.? As the reference to ?large, powerful social media companies? indicates, this is a ?punish Twitter and Facebook? rule. But Trump never bothers to specify this.
I’m going to pull something from later in the order because the order’s failure to distinguish platforms at the scale of Twitter, Google, and Facebook from the rest of the internet is incredibly important and constantly overlooked, and it should color every line we read. Here is what Trump is covering:
For purposes of this order, the term ?online platform? means any website or application that allows users to create and share content or engage in social networking, or any general search engine.
This order does not only hit ?Big Tech.? It also applies to a 20-member birdwatching forum, a cooking blog with a comment section, OR EVEN THIS WEBSITE and all of Trump’s favorite conservative news sites.
Remember this. Now let’s move on.
The introduction in the draft order that leaked was fairly short, but for the final signed version, Trump beefed up the high-minded free speech talk with a list of grievances involving:
This carries no legal weight. It’s just remarkably petty.
Trump keeps going with some bad legal theory:
The growth of online platforms in recent years raises important questions about applying the ideals of the First Amendment to modern communications technology. Today, many Americans follow the news, stay in touch with friends and family, and share their views on current events through social media and other online platforms. As a result, these platforms function in many ways as a 21st century equivalent of the public square.
Over the last few months, at least four courts have ruled on cases about whether social media sites function as a 21st century equivalent of a public square. They?ve all said no. So Trump is imposing a momentous policy change by throwing out rhetoric that sounds cool despite being specifically legally wrong.
Now let’s look at the actual policy the order proposes, which reads like other terrible ?anti-bias? laws that have come up, written by somebody who doesn’t know or care how laws work in the United States.
First, some background: Section 230 of the Communications Decency Act contains two key provisions. The first, 230(c)(1), explicitly says ?interactive computer services? should not be treated as the ?publisher? of what third parties post. That means platforms aren’t liable for content posted by their users. It’s what protects websites from lawsuits if a user posts libel or threats, and it’s the better-known part of the law.
There are serious proposals to reform Section 230 ? and this isn’t one of them
Conversely, Section 230(c)(2) limits liability when sites delete content. It says they can’t be held liable for ?any action voluntarily taken in good faith? to remove any content the platforms consider to be ?obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.? In other words, platforms have enormous discretion to moderate ? basically anything the platform considers to be objectionable can be taken down.
Notably, courts don’t apply these rules by looking at a website’s overall purpose. They judge how it handled a specific piece of content. It doesn’t matter whether the service is a ?publisher,? a ?platform,? or something else. Again: there is no legal distinction between a ?publisher? and a ?platform? in the current law, and every website that has comments or user submissions is covered by 230.
Let’s see how Trump handles this:
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.
This is a variation on the usual ?publishers versus platform? nonsense. It’s true that print publishers are responsible for illegal content they publish, as long as they know it’s there. But so is any online publisher! And any websites traditional print publishers operate are still protected under Section 230, so this phrasing doesn’t make a lot of sense in the year 2020.
Trump either wrongly thinks Section 230 has an on / off switch for entire websites or he wants to add one. If it’s the latter, he can’t do that by executive order; he?d need Congress to amend the law, which would make this whole section symbolic since there are already multiple Section 230 ?anti-bias? bills.
Instead, Trump seems to be proposing an end-run around Congress:
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:
The FCC can make rules that interpret but don’t contradict existing laws. Here, through an elaborate game of telephone, it’s supposed to unilaterally overhaul Section 230 and dare Congress to block its amendments. Remember when Republicans spent yearsarguing that the FCC didn’t have the authority to make rules about net neutrality, a topic Congress hadn’t even touched?
But let’s forget that Congress would probably veto this proposal and a court would almost certainly strike it down. Here’s what the FCC is supposed to ?clarify?:
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 exact wording is confusing because it’s applying case-by-case rules to entire sites. But the apparent gist is that if a site removes any content in a way that’s not in ?good faith,? it’s also permanently liable for any user-generated content.
The executive branch cannot simply overrule the other two branches of government, but this order makes it clear Trump is going to try
It also adds a definition of ?good faith? that’s effectively a list of forum troll gotchas ? good luck delivering a ?reasoned explanation? to an obnoxious internet pedant. Also, companies can make terms of service as vague as they want, big platforms like Facebook famously change their terms of service all the time, and many smaller sites covered under Section 230 don’t even have them.
Serious and fairly nonpartisan Section 230 reformers have proposed a kind of ?good faith? provision for (c)(1), requiring sites to take ?reasonable steps? to remove illegal content. But those are aimed at getting abuse and harassment taken down. Trump just wants to scare sites away from moderating content.
Ironically, the clearest solution Trump’s bill creates for most websites is to implement a ?ban anyone for no reason? moderation policy and offer an appeals process that hears complaints but never acts on them. And unlike at least one bill in Congress, Trump’s rules don’t specifically include anti-bias provisions ? he just makes it sound like they do.
Again, Trump doesn’t have the power to single-handedly make these rules. The language of Section 230 was passed by Congress and has been repeatedly and consistently interpreted by the courts. The executive branch cannot simply overrule the other two branches of government, but this order makes it clear Trump is going to try.
The Section 230 proposal is the heart of the order, but it adds a variety of other loosely related punishments, too. That includes sanctions for websites, in the form of an order ?protecting federal taxpayer dollars from financing online platforms that restrict free speech?:
(a) The head of each executive department and agency (agency) shall review its agency’s Federal spending on advertising and marketing paid to online platforms. Such review shall include the amount of money spent, the online platforms that receive Federal dollars, and the statutory authorities available to restrict their receipt of advertising dollars.
(b) Within 30 days of the date of this order, the head of each agency shall report its findings to the Director of the Office of Management and Budget.
(c) The Department of Justice shall review the viewpoint-based speech restrictions imposed by each online platform identified in the report described in subsection (b) of this section and assess whether any online platforms are problematic vehicles for government speech due to viewpoint discrimination, deception to consumers, or other bad practices.
This is ripe for abuse. Government agencies are supposed to give their online advertising plans to Trump’s Department of Justice, which will decide if the platforms advertised on practice ?viewpoint discrimination,? which Trump has clearly defined as removing conservative content. That said, the rule just asks the Justice Department to ?review? the sites, not take any firm action.
And for the platforms Trump wants to punish, the dollar figures at stake here are tiny. According to federal procurement records, Twitter has received roughly $200,000 from government agencies since 2008. Twitter made $808 million during the first three months of this year.
I mentioned earlier that Trump’s order conflates all online services with large social media platforms like Twitter and Facebook. To his credit, there’s at least one section where he avoids this. Unfortunately, it’s the section where he appears to… nationalize Twitter and Facebook moderation policies:
It is the policy of the United States that large online platforms, such as Twitter and Facebook, as the critical means of promoting the free flow of speech and ideas today, should not restrict protected speech. The Supreme Court has noted that social media sites, as the modern public square, ?can provide perhaps the most powerful mechanisms available to a private citizen to make his or her voice heard.?
The Supreme Court case that’s being quoted is 2017’s Packingham v. North Carolina, in which the court determined that North Carolina couldn’t ban sex offenders from social media. But the North Carolina state legislature is literally the government, which is barred by the First Amendment from restricting speech. Private companies like Twitter and Facebook are not governments and face no such restrictions ? in fact, they have First Amendment rights of their own. The order does nothing to resolve this contradiction.
Protected speech can include porn and spammy ads
Trump refers to ?protected speech? a few times throughout the order, but he never walks out what that means. A lot of legal speech is objectionable for non-political and largely non-controversial reasons. If you take an absolutist view of the definition, for example, Trump is ordering Facebook to stop banning pornography and spammy ads. It’s easier to accept as a rhetorical flourish, albeit one that’s deeply confusing and unsettling in a formal executive order.
In any case, the potential bombshell gets forgotten quickly in favor of yet another random punishment:
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.
I think this section exists so Trump can sue Twitter because it claimed eight years ago to be ‘the free speech wing of the free speech party.? Given how vague the language is, it comes off as yet another suggestion that government agencies should find reasons to attack Trump’s enemies.
The attorney general is also supposed to start a working group to help states make their own anti-bias laws:
The Attorney General shall 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 group should also ?collect publicly available information regarding? a variety of site behaviors. It’s close to the end of the order, so Trump basically rounds up all his remaining vendettas involving Facebook, YouTube, and Twitter and tells the Justice Department to investigate:
(i) increased scrutiny of users based on the other users they choose to follow, or their interactions with other users;
(ii) algorithms to suppress content or users based on indications of political alignment or viewpoint;
(iii) differential policies allowing for otherwise impermissible behavior, when committed by accounts associated with the Chinese Communist Party or other anti-democratic associations or governments;
(iv) reliance on third-party entities, including contractors, media organizations, and individuals, with indicia of bias to review content; and
(v) acts that limit the ability of users with particular viewpoints to earn money on the platform compared with other users similarly situated.
And finally, the attorney general is supposed to develop a proposal for legislation that would ?be useful to promote the policy objectives of this order.? But there’s no detail on that, so we’ll leave it for another time.
It’s hard to capture how badly this mangles free speech and the legislative process
It’s hard to capture just how badly this order mangles free speech and the entire legislative process. But one of its worst flaws is a common one: making rules that assume every website is Facebook. We?ve said over and over that Section 230 is not ?a gift to big tech companies.? It’s a gift to the internet. Trump’s order makes that clearer than ever ? because unlike even a fairly similar proposal from Sen. Josh Hawley (R-MO), its ?online platform? definition explicitly targets all websites, not just the biggest by users or revenue.
I wasn’t kidding about the birdwatching forum. Move over Hong Kong, it’s OUR turn to have our freedoms stripped…
If you take this order seriously, every website with a comment section ? and possibly even cloud storage services or online creative tools ? are going to be covered by a convoluted set of probably unconstitutional regulations designed to stop Donald Trump from getting fact-checked on Twitter.
Trump has a long-standing habit of throwing out absurd ideas and then forgetting about them (well, he is tRump afterall – the single worst President in American history). But he’s also filed expansive executive orders and been outraged when courts objected and then filed successively narrower versions until he got one past the courts. It’s plausible Trump does really think he can force websites to carry political content he likes, and if this order is any indication, nobody is stepping in to correct him.