Trump Signs Executive Order Opening the Door for Federal Regulators to Punish Social Media Companies

Getty US President Donald Trump speaks before signing an executive order on social media companies in the Oval Office of the White House on May, 28, 2020.

Around 4 p.m. on May 28, President Donald Trump signed an executive order to reign in social media companies. Specifically, the order removes liability protections for these companies, opening the door for federal regulators to punish online giants like Facebook, Google, and Twitter for the way they police online content, according to the Washington Post. In the announcement, Trump claimed that he would delete Twitter if not for “unfair reporting by the press,” according to a tweet from Reuter’s White House correspondent Jeff Mason.

The order comes just days after Twitter applied a fact check to two of President Trump’s tweets about mail-in voting. Trump claimed the fact check was a version of censorship, according to the Washington Post. On Twitter this morning, Trump wrote, “[t]his will be a Big Day for Social Media and FAIRNESS!”

In a draft of the executive order obtained by CNN, the Trump administration targets the Communications Decency Act, a 1996 attempt to limit minors’ access to pornography on the internet. The order draft specifically targets Section 230, which reads, “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”

“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 online,” the draft order says. “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.”

In regard to Section 230, the executive order states:

Section 230 was not intended to allow a handful of companies to grow into titans controlling vital avenues for our national discourse under the guise of promoting open forums for debate, and then to provide those behemoths blanket immunity when they use their power to censor content and silence viewpoints that they dislike.  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

Attorney General Barr explained that the order does not repeal Section 230, according to tweets from First Squak. According to Business Insider, some sections of the executive order draft are not legal while others would throw out years of precedent relating to Section 230.

The Executive Order Comes Shortly After Twitter Applied a Fact Check To Two of Trump’s Tweets

On Tuesday, Twitter applied a fact check to two of Trump’s tweets about mail-in voting. The fact check labeled the tweets potentially misleading and linked to a Twitter-curated page with links and summaries debunking the claim, according to CNN.

Twitter claimed that the tweets “could confuse voters about what they need to do to receive a ballot and participate in the election process.” Business Insider claimed that the fact checks themselves were “misleading,” and Twitter CEO Jack Dorsey tweeted that the company updated the link to make that distinction clear. The link now reads “Get the fact about mail-in ballots.”

White House Press Secretary Kayleigh McEnany claimed that the Twitter fact check was inaccurate and targeted against the President in a briefing earlier today. McEnany also reiterated a number of claims made within the order draft according to CNN, including claims that Google helps China surveil its citizens, Twitter spreads Chinese propaganda, and Facebook profits from Chinese advertising.

Section 230 is Short, Broad, and Controversial

Section 230 is a famously broad piece of legislation that, according to the ACLU, “immunizes websites from legal liability for the comments of their users.”

“When Congress enacted Section 230, it wisely recognized that holding websites legally responsible for user-generated content would cripple the rapidly developing online world,” the ACLU explains. “Section 230 defines Internet culture as we know it: It’s the reason why websites can offer platforms for critical and controversial speech without constantly worrying about getting sued.”

In an article on Lawfare, Stewart Baker, a cyberlaw specialist with experience at the National Security Agency and the Department of Homeland Security, explains that Section 230 “gives digital platforms two immunities—one for publishing users’ speech and one for censoring users’ speech.”

According to Baker, the United Kingdom and the European Union do not provide such broad protection for websites and “will severely punish any platform that fails to censor its users promptly.” Baker explains that an exemption from liability is usually treated like a subsidy that the government will grant to young and promising companies. Baker argues that established companies no longer need this liability protection and big tech has continued to benefit for too long.

Baker adds:

I confess to being a conservative, whatever that means these days, and I have little doubt that social media content mediation rules are biased against conservative speech. This is hard to prove, of course, in part because social media has a host of ways to disadvantage speakers who are unpopular in the Valley. Their posts can be quarantined so that only the speaker and a few persistent followers ever see them but none knows that distribution has been suppressed. Or content can be demonetized, so that speakers unpopular within the Valley, even those with large followings, cannot use ad funding to expand their reach. Or facially neutral rules, such as prohibitions on doxing or encouraging harassment, are applied with maximum force only to the unpopular.

Like Baker, Trump has accused big tech of unfairly censoring conservative ideas and messages. Axios called the claim unsubstantiated and Baker does not provide evidence that these tools have been used to quiet conservative voices.

Trump Has Repeatedly Attacked Vote-By-Mail, Which Exists in Some Form in All 50 States

Vote-by-mail has become an unexpected partisan battleground in recent weeks, since the coronavirus postponed a number of elections around the country. Currently, all 50 states allow some version of vote-by-mail, while a handful conduct their elections exclusively by mail. Oregon was the first state to implement universal vote-by-mail in 1998. Since then, Hawaii, Utah, Colorado, and Washington have all implemented universal vote-by-mail. Eight additional states allow some elections to be conducted by mail while five additional states allow especially small precincts to vote by mail. In most states, anyone can request a mail-in ballot, while a handful of states require votes to supply a reason for the request.

Expanding vote-by-mail is one piece in a much larger puzzle to protect voting rights during the pandemic, according to the Brennan Center for Justice. The Brennan Center goes on to list five action areas, namely: “(1) polling place modification and preparation; (2) expanded early voting; (3) a universal vote-by-mail option; (4) voter registration modification and preparation, including expanded online registration; and (5) voter education and manipulation prevention.”

For “[p]eople without Internet and mail access, those who need language assistance to vote, and people with disabilities who rely on voting machines to cast a private and independent ballot,” the Brennan Center argues that some polling places will need to remain open in a universal vote-by-mail system. Other protections include expanded and flexible online registration and aggressive public education about voting rules.

President Trump, Press Secretary McEnany, and White House Counselor Kellyanne Conway all voted by mail in the last election.

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