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"When large, powerful social media companies censor opinions with which they disagree, they exercise a dangerous power," the executive order states. "They cease functioning as passive bulletin boards and ought to be viewed and treated as content creators."
The unusual move comes after Twitter labeled two of Trump's tweets about mail-in ballots for containing "potentially misleading information about voting processes." Twitter's action appears to have been a tipping point in a relationship between conservatives and social media companies that has long been fraught. Republicans say their speech is being censored by Twitter, Facebook and other social media sites, though the companies have repeatedly denied doing so. Now these tensions have reached new heights.
On Friday, the dispute took a new twist when Twitter hid an overnight tweet from the president, putting it behind a label that says it violated the company's rules about "glorifying violence." The tweet can still be viewed if someone clicks on a link in the label, per Twitter's determination that "it may be in the public's interest" for the post to remain accessible.
Here's what you need to know about the debate over speech on social media:
Why is Trump going after social media companies?
Trump has accused social networks of censoring conservative speech in the past. He's taken that complaint to the people as well. Last year, his administration launched a website so social media users could share information with the government if they thought their accounts had been suspended, banned or reported because of political bias. He also held a "social media summit" at the White House in 2019 that drew media personalities popular in conservative circles.
Attempts to sue tech companies over claims of political bias have been unsuccessful. This week, the DC Circuit Court of Appeals rejected a lawsuit that accused Twitter, Facebook, Google and Apple of conspiring to suppress conservative views and violating the First Amendment.
For the most part, social networks have had a hands-off approach to Trump's posts because they're often considered newsworthy. But on May 26, Twitter fact-checked Trump's tweets for the first time, adding a label that raised questions about the accuracy of his remarks. The president tweeted that mail-in ballots won't be "anything less than substantially fraudulent," a claim debunked by news outlets and fact-checkers. Trump, who has more than 80 million followers, also falsely stated that California will send mail-in ballots to anyone living in the state, when only registered voters will receive ballots.
A label appeared under both tweets that reads: "Get the facts about mail-in ballots." Clicking on the warning notice directs people to a page explaining that experts say mail-in ballots are very rarely linked to voter fraud.
"We believe those Tweets could confuse voters about what they need to do to receive a ballot and participate in the election process," Twitter said in a statement. Trump's remarks about mail-in ballots also appeared in a Facebook post, but the social network didn't label them. Facebook typically doesn't send posts from politicians to fact-checkers, arguing that their speech is already heavily scrutinized.
Trump clearly wasn't happy with Twitter's actions. The company, he said, showed that allegations about political bias are correct, and he vowed in a tweet to take a "big action." Then came the executive order.
What does Trump's executive order do?
The executive order focuses on Section 230 of the Communications Decency Act, which protects Facebook, Twitter and other online companies from liability for content posted by their users. The law helps ensure that these companies don't get sued for moderating content on their sites. Social networks have rules about what users are allowed to post, barring content such as harassment, hate speech and violent threats.
There are some exceptions under the law. For example, a company could still be held accountable for knowingly allowing users to post illegal content, such as child pornography.
Trump's executive order aims to reinterpret the law through new regulation. Online companies that moderate their websites in anything other than "good faith" could face more lawsuits.
The order directs the Commerce Department to ask the Federal Communications Commission to propose regulation that clarifies when a company isn't acting in good faith. That includes when a company decides to restrict access to content but their actions are inconsistent with its terms of service or taken without adequate notice or a "meaningful opportunity to be heard."
In essence, the Trump administration is arguing that by labeling the president's tweets, Twitter isn't protected by Section 230.
The order also directs the heads of government agencies to review federal spending on online advertising. It asks the Federal Trade Commission to consider taking action against internet companies for practices under Section 230 and to consider issuing a report about political bias complaints. Under the order, US Attorney General William Barr would work with state attorneys general to study political bias allegations.
Does the executive order have legal limits?
Some experts say the order is just political theater and will likely face legal challenges. Both the FTC and the FCC are independent agencies, so it will be up to them whether to take action.
Experts also say the FCC would likely be challenged in court if it were to impose rules. Ernesto Falcon, senior legislative counsel for the Electronic Frontier Foundation, said the Communications Decency Act was meant to determine who can or can't be sued and on what grounds. The law has no language giving the FCC or other federal agency rule-making authority to limit what an online company can or can't do.
It's still unclear whether the FCC will propose new regulation. "This debate is an important one. The Federal Communications Commission will carefully review any petition for rulemaking filed by the Department of Commerce," said FCC Chairman Ajit Pai in a statement.
Marty Lederman, a law professor at Georgetown University Law Center, tweeted that "it's hard to imagine the FCC will do anything" with the executive order and the FTC will likely ignore it.
As I wrote earlier, it's all smoke, no fire. https://t.co/lkj0TEvFhk https://t.co/iWk7B4yvbQ— Marty Lederman (@marty_lederman) May 28, 2020
Robert McDowell, a former Republican commissioner at the FCC, said in a tweet that the order would violate a private company's protections under the First Amendment. "This speech control is #unconstitutional," McDowell tweeted, adding that the president can't grant the FCC new legal power, either.
ACLU senior legislative counsel Kate Ruane said that the order could also harm Trump because if platforms aren't shielded from legal liability for what their users post then they could be more aggressive in pulling down controversial content including posts by the president.
"Congress and the administration would do well to remember that Section 230 is critical to protecting free speech online. The law allows platforms to publish all sorts of content without fear of being held liable for it," she said. "That includes, as Donald Trump appears to have forgotten, his own tweets — even when they include lies."
What do social media companies think about the order?
Facebook and Google, pushing back against allegations of political bias, are already raising concerns about the order.
A Facebook spokeswoman said that repealing or limiting Section 230 will curb online speech.
"By exposing companies to potential liability for everything that billions of people around the world say, this would penalize companies that choose to allow controversial speech and encourage platforms to censor anything that might offend anyone," she said.
A Google spokeswoman said in a statement that "undermining Section 230 in this way would hurt America's economy and its global leadership on internet freedom."
Twitter declined to comment.
What's next?
Trump's executive order is only the tip of the iceberg.
US lawmakers are also drafting legislation to strip online companies of legal protections for posts by users. Sen. Josh Hawley of Missouri and Rep. Matt Gaetz of Florida, both Republicans, are working on separate bills.
"If @Twitter wants to editorialize & comment on users' posts, it should be divested of its special status under federal law (Section 230) & forced to play by same rules as all other publishers," Hawley tweeted. "Fair is fair."
I will introduce legislation to end these special government giveaways. If @Twitter wants to editorialize & comment on users’ posts, it should be divested of its special status under federal law (Section 230) & forced to play by same rules as all other publishers. Fair is fair— Josh Hawley (@HawleyMO) May 27, 2020
President Donald Trump has been fuming about social networks. Now he's doing more than angrily tweeting about it. On Thursday, Trump signed an executive order that aims to curtail legal protections that shield Facebook, Twitter and other online companies from liability for content posted by its users.
"When large, powerful social media companies censor opinions with which they disagree, they exercise a dangerous power," the executive order states. "They cease functioning as passive bulletin boards and ought to be viewed and treated as content creators."
The unusual move comes after Twitter labeled two of Trump's tweets about mail-in ballots for containing "potentially misleading information about voting processes." Twitter's action appears to have been a tipping point in a relationship between conservatives and social media companies that has long been fraught. Republicans say their speech is being censored by Twitter, Facebook and other social media sites, though the companies have repeatedly denied doing so. Now these tensions have reached new heights.
On Friday, the dispute took a new twist when Twitter hid an overnight tweet from the president, putting it behind a label that says it violated the company's rules about "glorifying violence." The tweet can still be viewed if someone clicks on a link in the label, per Twitter's determination that "it may be in the public's interest" for the post to remain accessible.
Here's what you need to know about the debate over speech on social media:
Why is Trump going after social media companies?
Trump has accused social networks of censoring conservative speech in the past. He's taken that complaint to the people as well. Last year, his administration launched a website so social media users could share information with the government if they thought their accounts had been suspended, banned or reported because of political bias. He also held a "social media summit" at the White House in 2019 that drew media personalities popular in conservative circles.
Attempts to sue tech companies over claims of political bias have been unsuccessful. This week, the DC Circuit Court of Appeals rejected a lawsuit that accused Twitter, Facebook, Google and Apple of conspiring to suppress conservative views and violating the First Amendment.
For the most part, social networks have had a hands-off approach to Trump's posts because they're often considered newsworthy. But on May 26, Twitter fact-checked Trump's tweets for the first time, adding a label that raised questions about the accuracy of his remarks. The president tweeted that mail-in ballots won't be "anything less than substantially fraudulent," a claim debunked by news outlets and fact-checkers. Trump, who has more than 80 million followers, also falsely stated that California will send mail-in ballots to anyone living in the state, when only registered voters will receive ballots.
A label appeared under both tweets that reads: "Get the facts about mail-in ballots." Clicking on the warning notice directs people to a page explaining that experts say mail-in ballots are very rarely linked to voter fraud.
"We believe those Tweets could confuse voters about what they need to do to receive a ballot and participate in the election process," Twitter said in a statement. Trump's remarks about mail-in ballots also appeared in a Facebook post, but the social network didn't label them. Facebook typically doesn't send posts from politicians to fact-checkers, arguing that their speech is already heavily scrutinized.
Trump clearly wasn't happy with Twitter's actions. The company, he said, showed that allegations about political bias are correct, and he vowed in a tweet to take a "big action." Then came the executive order.
What does Trump's executive order do?
The executive order focuses on Section 230 of the Communications Decency Act, which protects Facebook, Twitter and other online companies from liability for content posted by their users. The law helps ensure that these companies don't get sued for moderating content on their sites. Social networks have rules about what users are allowed to post, barring content such as harassment, hate speech and violent threats.
There are some exceptions under the law. For example, a company could still be held accountable for knowingly allowing users to post illegal content, such as child pornography.
Trump's executive order aims to reinterpret the law through new regulation. Online companies that moderate their websites in anything other than "good faith" could face more lawsuits.
The order directs the Commerce Department to ask the Federal Communications Commission to propose regulation that clarifies when a company isn't acting in good faith. That includes when a company decides to restrict access to content but their actions are inconsistent with its terms of service or taken without adequate notice or a "meaningful opportunity to be heard."
In essence, the Trump administration is arguing that by labeling the president's tweets, Twitter isn't protected by Section 230.
The order also directs the heads of government agencies to review federal spending on online advertising. It asks the Federal Trade Commission to consider taking action against internet companies for practices under Section 230 and to consider issuing a report about political bias complaints. Under the order, US Attorney General William Barr would work with state attorneys general to study political bias allegations.
Does the executive order have legal limits?
Some experts say the order is just political theater and will likely face legal challenges. Both the FTC and the FCC are independent agencies, so it will be up to them whether to take action.
Experts also say the FCC would likely be challenged in court if it were to impose rules. Ernesto Falcon, senior legislative counsel for the Electronic Frontier Foundation, said the Communications Decency Act was meant to determine who can or can't be sued and on what grounds. The law has no language giving the FCC or other federal agency rule-making authority to limit what an online company can or can't do.
It's still unclear whether the FCC will propose new regulation. "This debate is an important one. The Federal Communications Commission will carefully review any petition for rulemaking filed by the Department of Commerce," said FCC Chairman Ajit Pai in a statement.
Marty Lederman, a law professor at Georgetown University Law Center, tweeted that "it's hard to imagine the FCC will do anything" with the executive order and the FTC will likely ignore it.
As I wrote earlier, it's all smoke, no fire. https://t.co/lkj0TEvFhk https://t.co/iWk7B4yvbQ— Marty Lederman (@marty_lederman) May 28, 2020
Robert McDowell, a former Republican commissioner at the FCC, said in a tweet that the order would violate a private company's protections under the First Amendment. "This speech control is #unconstitutional," McDowell tweeted, adding that the president can't grant the FCC new legal power, either.
ACLU senior legislative counsel Kate Ruane said that the order could also harm Trump because if platforms aren't shielded from legal liability for what their users post then they could be more aggressive in pulling down controversial content including posts by the president.
"Congress and the administration would do well to remember that Section 230 is critical to protecting free speech online. The law allows platforms to publish all sorts of content without fear of being held liable for it," she said. "That includes, as Donald Trump appears to have forgotten, his own tweets — even when they include lies."
What do social media companies think about the order?
Facebook and Google, pushing back against allegations of political bias, are already raising concerns about the order.
A Facebook spokeswoman said that repealing or limiting Section 230 will curb online speech.
"By exposing companies to potential liability for everything that billions of people around the world say, this would penalize companies that choose to allow controversial speech and encourage platforms to censor anything that might offend anyone," she said.
A Google spokeswoman said in a statement that "undermining Section 230 in this way would hurt America's economy and its global leadership on internet freedom."
Twitter declined to comment.
What's next?
Trump's executive order is only the tip of the iceberg.
US lawmakers are also drafting legislation to strip online companies of legal protections for posts by users. Sen. Josh Hawley of Missouri and Rep. Matt Gaetz of Florida, both Republicans, are working on separate bills.
"If @Twitter wants to editorialize & comment on users' posts, it should be divested of its special status under federal law (Section 230) & forced to play by same rules as all other publishers," Hawley tweeted. "Fair is fair."
I will introduce legislation to end these special government giveaways. If @Twitter wants to editorialize & comment on users’ posts, it should be divested of its special status under federal law (Section 230) & forced to play by same rules as all other publishers. Fair is fair— Josh Hawley (@HawleyMO) May 27, 2020Trump also said during Thursday's signing that he's considering shutting down social media sites such as Twitter, although he doesn't know how he would do that."I'd have to ask the lawyers. I'd have to go through a legal process," he said. "If it were able to be legally shut down I would do it." \
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