An angry Trump signs executive order cracking down on social media companies

President Donald Trump issued an executive order targeting social media companies on May 28, 2020, two days after Twitter had labeled two of his tweets potentially misleading. The executive order specifically targets Section 230 of the 1996 Communications Decency Act, which protects online platforms from liability for content posted on their sites.

Key Players

Donald Trump is the 45th president of the United States. Throughout his presidency, Trump has relied on his personal Twitter account to issue official communications, including policy moves, personnel changes, and personal insults.

Twitter is a social media company that launched in 2006. As of 2020, it has 145 million  active daily users, all of whom can post short tweets of up to 280 characters on the platform.

Further Details

On the morning of May 26, 2020, Trump tweeted his opposition to voting by mail, asserting without evidence that mail-in ballots would be “substantially fraudulent.” He falsely claimed in a second tweet that voting by mail would result in a “Rigged Election.”

In response to these baseless claims, Twitter added a warning to the tweets that urges users to “get the facts about mail-in ballots.” The message links to a page that says Trump’s claims were unsubstantiated and mail-in ballots are very rarely fraudulent. The page includes links to articles from The Washington Post and other outlets that reject Trump’s claims; it also cites experts on voter fraud who pointed out that five states already vote almost entirely by mail.

The next day, Sen. Josh Hawley (R-Mo.) and Rep. Matt Gaetz (R-Fla.) both announced that they had begun writing legislation stripping Twitter of some federal protections. Gaetz tweeted that the legislation would revise Section 230 of the  Communications Decency Act of 1996, which says intermediary website operators like Twitter and Facebook cannot be treated as the publisher or speaker of others’ posts made available on their platforms, which in turn protects them from lawsuits.

On May 28, Trump issued an Executive Order on Preventing Online Censorship, stating that he did so to “defend Free Speech from one of the gravest dangers it has faced in American history.” The order specifically targets social media companies’ Section 230 protections. It says that if a website restricts access to others’ content in bad faith, it should be deemed a publisher rather than a neutral platform, and therefore lose its legal immunity.

The New York Times, to illustrate the potential effect of the executive order. uses the example of Trump’s tweets that incorrectly imply that MSNBC host Joe Scarborough murdered a congressional staff member in 2001, when he was a Republican member of the House of Representatives from Florida. If Trump’s executive order were to become law, Scarborough could theoretically accuse Twitter of libel.

The order instructs the Department of Commerce to ask the Federal Communications Commission (FCC) to develop regulations specifying how a social media company would lose its Section 230 immunity. However, the FCC is an independent regulatory agency outside of Trump’s control. In addition, the order seeks to direct complaints about political bias on the platforms to the Federal Trade Commission, another independent agency.

Outcome

Executive order faces long legal battle that experts say will likely end in its rejection

A number of legal experts have already questioned the legality of Trump’s executive order and voiced concern over its implications for Free Speech if it were to be implemented, according to The Washington Post. Ellen P. Goodman, a law professor at Rutgers University who specializes in Free Speech and digital communications, described the order as “just noise” and said it was obvious the FCC lacked jurisdiction on this issue. Kate Klonick, an assistant  professor of law at St. John’s University who specializes in online speech and content moderation, said the order is “likely not going to be upheld by a court.” The Center for Democracy and Technology, a nonprofit, kicked off the official legal dispute on June 2, 2020, when it filed a lawsuit in U.S. District Court for the District of Columbia, alleging that the order violates the First Amendment and calling on the court to declare it unlawful and invalid.