|After Twitter fact checks Trump’s Tweets on mail voting in California, a rumored EO was signed that would direct the U.S. government to determine how to pare back Section 230 liability protection.|
This week, after Twitter fact checked two of his Tweets regarding false claims made about mail voting in California in response to the COVID-19 pandemic, President Donald Trump signed a long rumored executive order (EO) seen by many as a means of cowing social media platforms. Given that the First Amendment to the United States Constitution guarantees freedom of speech in relation to government action, it is not clear how Twitter would be considered a government agency and therefore subject to the First Amendment. Nonetheless, the new EO would request that an agency begin a rulemaking to clarify the liability shield with respect to editing content in 47 USC 230 online platforms benefit from and also task a different agency with investigating Twitter and other platforms to see if they are violating their terms of service.
Twitter’s first fact checking of Trump’s tweeting occurred when he made false claims about California’s plan to mail ballots to registered voters, and, not as the President claimed, to all residents of California. On 26 May, Trump tweeted across two Tweets:
There is NO WAY (ZERO!) that Mail-In Ballots will be anything less than substantially fraudulent. Mail boxes will be robbed, ballots will be forged & even illegally printed out & fraudulently signed. The Governor of California is sending Ballots to millions of people, anyone….. ….living in the state, no matter who they are or how they got there, will get one. That will be followed up with professionals telling all of these people, many of whom have never even thought of voting before, how, and for whom, to vote. This will be a Rigged Election. No way!
On 27 May, Twitter added “a label to two @realDonaldTrump Tweets about California’s vote-by-mail plans as part of our efforts to enforce our civic integrity policy. We believe those Tweets could confuse voters about what they need to do to receive a ballot and participate in the election process.”
In the next day after Twitter added this label, word began to leak from the White House that a long rumored executive order regarding Section 230 of the Communications Decency Act was being prepared for the president’s signature. And, late in the day on 28 May, after a day of reporting on the EO by media, Trump did indeed sign the “Executive Order on Preventing Online Censorship,” which asserted
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.
Consequently, the EO directs that “all executive departments and agencies should ensure that their application of section 230(c) properly reflects the narrow purpose of the section and take all appropriate actions in this regard.”
With respect to specific actions, the Department of Commerce’s the National Telecommunications and Information Administration (NTIA) is directed to file a petition for rulemaking with the Federal Communications Commission (FCC) to clarify the interplay between clauses of Section 230, notably whether the liability shield that protects companies like Twitter and Facebook for content posted on an online platform also extends to so-called “editorial decisions,” presumably actions like Twitter’s in fact checking Trump regarding mail balloting. The NTIA would also ask the FCC to define better the conditions under which an online platform may take down content in good faith that are “deceptive, pretextual, or inconsistent with a provider’s terms of service; or taken after failing to provide adequate notice, reasoned explanation, or a meaningful opportunity to be heard.” The NTIA is also ask the FCC to promulgate any other regulations necessary to effectuate the EO.
Administration officials, including some at the FCC and FTC, have anonymously claimed the EO was pushed through this week, bypassing the usual policy vetting process. Moreover, some of these officials explained that FCC and FTC officials has mostly negative feedback on the draft EO circulated last year and claimed the agencies may even lack the authority to undertake the actions directed by the EO.
Three of the five FCC Commissioners made their positions clear on an NTIA petition to execute this portion of the EO. Commissioner Brendan Carr remarked “I welcome today’s Executive Order and its call for guidance on the scope of the unique and conditional set of legal privileges that Congress conferred on social media companies but no other set of speakers in Section 230…[and] I look forward to receiving the petition that the NTIA files.” Commissioner Geoffrey Starks said “I’ll review the final Executive Order when it’s released and assess its impact on the FCC, but one thing is clear: the First Amendment and Section 230 remain the law of the land and control here.” Starks added “[o]ur top priority should be connecting all Americans to high-quality, affordable broadband.” Commissioner Jessica Rosenworcel stated
This does not work. Social media can be frustrating. But an Executive Order that would turn the Federal Communications Commission 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.
Elsewhere in the EO, it is provided that the head of each federal agency must review their online spending and then report to the Office of Management and Budget (OMB). The Department of Justice would then “review the viewpoint-based speech restrictions imposed by each online platform identified in the [reports submitted to OMB] and assess whether any online platforms are problematic vehicles for government speech due to viewpoint discrimination, deception to consumers, or other bad practices.”
The Federal Trade Commission (FTC) must consider whether online platforms are violating Section 5 of the FTC Act barring unfair or deceptive practices, which “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.”
On 29 May Twitter labeled a Tweet of Trump’s about the riots in Minneapolis as being a violation of rules for “glorifying violence,” but the platform left the tweet up because “it may be in the public’s interest for the Tweet to remain accessible.” Twitter also disabled the reply function and explained “We try to prevent a tweet like this that otherwise breaks the Twitter rules from reaching more people, so we have disabled most of the ways to engage with it.”
Moreover, Twitter’s actions regarding Trump are not unprecedented for the platform. This year, it has removed Tweets from Brazil’s President Jair Bolsonaro and Venezuela’s President Nicolás Maduro who were pushing unproven COVID-19 treatments. However, these take downs seem at odds with a 2018 statement by Twitter:
Blocking a world leader from Twitter or removing their controversial Tweets would hide important information people should be able to see and debate. It would also not silence that leader, but it would certainly hamper necessary discussion around their words and actions.
Twitter claimed “[w]e review Tweets by leaders within the political context that defines them, and enforce our rules accordingly.”
Twitter also resisted calls from a number to suspend Trump’s account for violating the platform’s terms of service. In October 2019, then presidential candidate Senator Kamala Harris (D-CA) wrote Twitter CEO Jack Dorsey, arguing
I believe the President’s recent tweets rise to the level that Twitter should consider suspending his account. Others have had their accounts suspended for less offensive behavior. And when this kind of abuse is being spewed from the most powerful office in the United States, the stakes are too high to do nothing.
Moreover, Twitter banned political advertising in November 2019 but still allows issue advertising (e.g. an ad advocating for a southern border wall). And, Twitter is limiting the use of microtargeting.
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