Trump EO Removes Some Social Media Protections, Seeks FCC Proceeding

President Donald Trump signed an executive order Thursday that would remove liability protections for online platforms that censure or edit content (see 2005270016). There would be a role for antitrust agencies and the FCC, whose commissioners reacted along party lines to the EO. “We’re here today to defend free speech from one of the greatest dangers,” Trump said, claiming tech monopolies have “unchecked power” to censor and restrict human interaction.

Joined by Attorney General William Barr, Trump said Barr will work with states on regulations and develop policies that make sure tax dollars don't go to companies that the president said suppress free speech. Trump said he expects a lawsuit challenging the EO. Asked about the possibility of shutting down Twitter, he suggested he would if lawyers found a way: “I’d have to go through a legal process.” Twitter "ceases to be a neutral public platform, they become an editor with a viewpoint," Trump said. "I think we can say that about others also, whether you're looking at Google, whether you're looking at Facebook and perhaps others."

The EO directs NTIA to petition for rulemaking for FCC regulations defining the scope of Section 230 of the Communications Decency Act. Among the commission's members, Brendan Carr was most supportive. He called the EO welcome news.

Commissioner Mike O'Rielly defended the president while also noting free speech concerns that others also raised. He said although he hadn’t seen the EO, Trump has the right to seek review of the 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.”

Commissioner Jessica Rosenworcel said an EO that would turn the FCC 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.” Commissioner Geoffrey Starks said he will review the order when it’s released, “but one thing is clear: the 1st Amendment and Section 230 remain the law of the land and control here.”

Sen. Ron Wyden, D-Ore., expects companies like Facebook, YouTube and Twitter “to resist this illegal act by all possible means.” He urged Americans not to give in to Trump’s “bullying,” which may be the “single most unpatriotic act an American could undertake.”

Rep. Mike Doyle, D-Pa., condemned the EO. His office said such FCC rules would “most likely force internet companies to leave the door open to misinformation and disinformation -- and that would have wide-ranging consequences.” Doyle noted the EO would direct the FTC and state attorneys general to police unfair and deceptive practices. Doyle said he supports Twitter's “actions and the actions of any social media company that fact-checks or removes misinformation or disinformation from their platform, regardless of the source.”

The EO appears designed to punish “a handful of companies for perceived slights and is inconsistent with the purpose and text of Section 230,” said Internet Association interim CEO Jon Berroya. “It stands to undermine a variety of government efforts to protect public safety and spread critical information online through social media and threatens the vibrancy of a core segment of our economy.”

Industry Concerns

Most in industry and advocates who generally seek more regulation as well as those often opposing it were united against the EO, in the hours before Trump signed it. We found one person who backed it, in an interview, while others told us of concerns.

Iggy Ventures CEO Rick Lane defended Trump's general concern, noting the “power of big tech is a bipartisan concern. There is no question that internet platforms have amassed outsized influence over communication, commerce, and access to content, data and society.” A longtime proponent for changes to Section 230, Lane said the unintended impunity created by the statute threatens public safety, competition, economic health and national security.

There should be a serious and informed conversation about the section, but the EO isn’t a productive approach to holding the tech sector more accountable, emailed University of California, Berkeley School of Information professor Hany Farid: “My hope is that this order will be challenged and struck down by the courts -- after all, the first amendment that the President claims to want to protect was designed exactly for this purpose of limiting government overreach.”

Only Congress can remove 230, so the EO empowers the administrative state, said Committee for Justice Director-Public Policy Ashley Baker. “It’s also notable that it does so by asking the NTIA to direct the FCC to make rules,” she said. “Since the FCC is an independent agency, the president cannot directly order it to do this.” C-Band Alliance consultant Preston Padden emailed us he hopes the FCC will stand firmly for free speech, especially for speech the White House doesn’t like.

The executive branch can’t just rewrite a law passed by the legislative branch, said Stand Together Vice President-Technology and Innovation Jesse Blumenthal. The EO is a “bizarre hodgepodge of misreading the law and misunderstanding the government,” he said. “Censorship comes from government threatening to police speech,” not companies handling speech issues on their platforms.

The Computer and Communications Industry Association, Incompas, Information Technology and Innovation Foundation and NetChoice condemned the EO, in statements. Incompas CEO Chip Pickering said that “promoting free speech while protecting our citizens from harm has always been a collective responsibility that is already enshrined into the 230 law and should not be changed.”

“All Americans should be concerned to find a U.S. president issuing executive orders in response to a company that challenges the veracity of his statements,” said CCIA President Matt Schruers. “Social media companies -- and all Americans -- have an inviolable right to comment on what our government says.” ITIF Vice President Daniel Castro accused Trump of attempting to weaponize “federal and state law enforcement and regulatory agencies to retaliate against an American company.”

Public Knowledge and the American Civil Liberties Union also rejected the EO. PK CEO Chris Lewis said Trump doesn’t have the power to rewrite the law. ACLU Senior Legislative Counsel Kate Ruane agreed, saying the statute enables free speech by shielding platforms from liability.