The Two Things To Understand About Trump's Executive Order On Social Media: (1) It's A Distraction (2) It's Legally Meaningless
from the the-season-of-dumb dept
We’ve officially reached pure silly season when it comes to internet regulations. For the past two years now, every so often, reports have come out that the White House was exploring issuing an executive order trying to attack Section 230 and punish companies for the administration’s belief in the myth that content moderation practices at large social media firms are “biased” against conservatives.
However, it apparently took Twitter literally doing nothing more than linking to people arguing that Trump’s tweets were misleading, to cause our President to throw a total shit fit and finally break out the executive order. This one is somewhat different than drafts that have been floated in the past, though it has the same origins (and, according to a few people I spoke to, this new executive order was “hastily drafted” to appease an angry President who can’t stand the idea that someone might correct his nonsense). You can read the draft that get sent around to everyone last night. The final version is expected to be at least somewhat close to this.
To be clear: the executive order is nonsense. You can’t overrule the law by executive order, nor can you ignore the Constitution. This executive order attempts to do both. It’s also blatantly anti-free speech, anti-private property, pro-big government — which is only mildly amusing, given that Trump and his sycophantic followers like to insist they’re the opposite of all of those things. But also, because the executive order only has limited power, there’s a lot of huffing and puffing in there for very little actual things that the administration can do. It’s very much written in a way to make Trump’s fans think he’s done something to attack social media companies, but the deeper you dig, the more nothingness you find.
Let’s dig into this clusterfuck of nonsense. It starts out with what might sounds like a sensible argument, if you don’t understand the ins-and-outs of Section 230, by saying that because Section 230’s “good samaritan” clause requires good faith, that “pretextual actions restricting online content or actions inconsistent with an online platform’s terms of service” are somehow not covered by 230:
Section 230(c) was designed to address court decisions from the early days of the Internet holding that an online platform that engaged in any editing or restriction of content posted by others thereby became itself a ?publisher? of the content and could be liable for torts like defamation. As the title of section 230(c) makes clear, the provision is intended to provide liability ?protection? to a provider of an interactive computer service (such as an online platform like Twitter) that engages in ??Good Samaritan? blocking? of content when the provider deems the content (in the terms of subsection 230(c)(2)(A)) obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable. Subsection 230(c)(1) broadly states that no provider of an interactive computer service shall be treated as a publisher or speaker of content provided by another person. But subsection 230(c)(2) qualifies that principle when the provider edits the content provided by others. Subparagraph (c)(2) specifically addresses protections from ?civil liability? and clarifies that a provider is protected from liability when it acts in ?good faith? to restrict access to content that it considers to be ?obscene, lewd, lascivious, filthy, excessively violent, harassing or otherwise objectionable.? The provision does not extend to deceptive or pretextual actions restricting online content or actions inconsistent with an online platform?s terms of service. 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. By making itself an editor of content outside the protections of subparagraph (c)(2)(A), such a provider forfeits any protection from being deemed a ?publisher or speaker? under subsection 230(c)(1), which properly applies only to a provider that merely provides a platform for content supplied by others. It is the policy of the United States that all departments and agencies should apply section 230(c) according to the interpretation set out in this section.
This, like so much misinformation, has a tiny nugget of truth, buried in a mound of pure bullshit. The nugget of truth: content created by a platform has never been covered by Section 230. That means that the text of the line notifying people that there was more information about mail-in ballots, was a Twitter creation and of course it’s liable for that content alone. That’s always been the case though. This executive order does nothing to change that.
But nearly everything else here is ridiculous nonsense. Courts have ruled over and over and over again that “otherwise objectionable” covers a lot of ground and the President doesn’t get to just change that. Besides, it’s beyond evident that Twitter had a good faith belief that its users were better served by providing additional context (additional speech!) to Trump’s conspiracy theory. That’s a basic editorial function well protected by the 1st Amendment.
Also, importantly, the order that “all departments and agencies should apply” this nonsense interpretation of 230 is… meaningless. Federal agencies don’t interpret or enforce Section 230. The courts do that. So what will this actually do or change? Literally nothing.
From there, the President tries to get agencies to “do something,” that they cannot do and which would be meaningless even if they wanted to do something anyway.
To further advance the policy described in subsection (a) of this section, within 30 days of the date of this order, the Secretary of Commerce (Secretary), through the National Telecommunications and Information Administration (NTIA), shall file a petition for rulemaking with the Federal Communications Commission (FCC) requesting that the FCC expeditiously propose regulations to clarify:
(i) the conditions under which an action restricting access to or availability of material is not ?taken in good faith? within the meaning of subparagraph (c)(2)(A) of section 230, particularly the conditions under which such actions will be considered to be:
(1) deceptive, pretextual, or inconsistent with a provider?s terms of service; or
(2) the result of inadequate notice, the product of unreasoned explanation, or having been undertaking without a meaningful opportunity to be heard; and
(ii) Any other proposed regulations that the NTIA concludes may be appropriate to advance the policy described in subsection (a) of this section.
So much nonsense to unpack here. First of all, the FCC has no authority to issue such regulations. None, zip, zilch. Part of the ruling in Reno v. ACLU that tossed out all the other parts of the CDA as unconstitutional made it clear that the FCC has no authority to regulate websites. And it’s even more ridiculous when you realize that this is being handed to the very same FCC that has sworn up and down, left, right, center, backwards, and forwards, Monday through Sunday and back again, that it has no authority to regulate “neutrality” and doesn’t want to have any authority to regulate “neutrality,” and even thinking that the FCC might want to enforce neutrality over the parts of the telecom system that it does have authority over is crazy talk and nonsense. So, you have an FCC saying it can’t enforce neutrality for infrastructure players (again, over which the courts have made clear it has authority), being told that it needs to enforce neutrality for edge providers (which no sensible person believes it has authority).
Second, courts have long determined that the only reasonable interpretation of “taken in good faith” is to mean that the platforms have a very wide berth in choosing what to moderate. A court cannot second guess that without running into significant 1st Amendment issues regarding compelled speech and anyone’s ability to make their own editorial judgments. Third, “deceptive, pretextual, or inconsistent with a provider’s terms of service” is again outside the FCC’s authority. It might be covered by the FTC, but in a very, very limited way. Making editorial decisions that an immature crybaby with too much power doesn’t like is not deceptive nor inconsistent with a website’s terms of service.
Third, note the specifics of the order. The NTIA, which the President can command, is told to petition the FCC (which the President cannot command). The FCC need not do anything with that petition. Fluff and nonsense designed to make people think something was done.
Perhaps recognizing how silly the FCC part is, the EO also ropes in the FTC. But this won’t get very far either:
The FTC shall consider taking action, as appropriate and consistent with applicable law, to prohibit unfair or deceptive acts or practices in or affecting commerce, pursuant to 15 U.S.C. 45. Such unfair or deceptive acts or practice shall include practices by entities regulated by section 230 that restrict speech in ways that do not align with those entities? public representations about those practices.
First off, the FTC already has the power to prohibit unfair and deceptive acts. So telling the FTC that it should do what it already does is… once again… meaningless. As for telling the FTC to go after platforms for restricting speech… well, that’s just blatantly unconstitutional, and the FTC knows it would lose any such case. It would lose badly and embarrassingly. I’d be very surprised if the FTC chose to go through that just for the hell of it.
The entire framing of this section is like a fever dream from all of the failed lawsuits trying to challenge Section 230 by misreading three very important Supreme Court decisions, two of which don’t say what many whining people think they say, and one of which they ignore. You’ll see the two they misread here:
(a) It is the policy of the United States that large social media platforms, such as Twitter and Facebook, as the functional equivalent of a traditional public forum, should not infringe on protected speech. The Supreme Court has described that social media sites, as the modern public square, ?can provide perhaps the most powerful mechanisms available to a private citizen to make his or her voice heard.? Packingham v. North Carolina, 137 S. Ct. 1730, 1737 (2017). Communication through these channels has become important for meaningful participation in American democracy, including to petition elected leaders. These sites are providing a public forum to the public for others to engage in free expression and debate. Cf. PruneYard Shopping Center v. Robins, 447 U.S. 74, 85-89 (1980).
Packingham and Pruneyard are regularly cited by people who don’t understand either, to argue that Twitter is a public forum. Courts have shot this down repeatedly. As they should, because neither case says what people claim they say. Packingham was a very important case, in which the Supreme Court said, quite clearly, that governments cannot pass a law that kicks people off the internet. That’s it. Note that it applies to governments. It does not apply to private companies.
Pruneyard is a case about whether or not a particular shopping mall had become a public square, limiting the ability of the owners to kick people out. Anyone citing that case to argue that its ruling applies to social media has to ignore (1) the very specific fact pattern in Pruneyard, and (2) multiple cases since Pruneyard that have narrowed that decision down to the point that it appears to apply to just the shopping center in question. And this is made clear in the Manhattan Neighborhood Network case from just last summer, in which the 5 “conservative” justices made it clear that Pruneyard was a special case, and social media would not even come remotely close to meeting the “public forum” standard. For what it’s worth, the 4 “liberal” judges dissented on the overall decision, but even their dissent makes it clear that they agreed with the fact that private companies do not turn into public forum bound by the 1st Amendment just by hosting conversations.
This is the case that the executive order totally ignores, despite being written by the most recent Trump appointee, Brett Kavanaugh, and which lays out in painstaking detail, that in order to meet the Pruneyard standard, a website would need to perform a function that had “traditionally and exclusively been performed by government.” That’s not Twitter. Indeed, Kavanaugh’s opinion in the MNN case was a robust support for private property rights, and makes it clear why Trump’s executive order is the exact opposite of that:
In short, merely hosting speech by others is not a traditional, exclusive public function and does not alone transform private entities into state actors subject to First Amendment constraints.
If the rule were otherwise, all private property owners and private lessees who open their property for speech would be subject to First Amendment constraints and would lose the ability to exercise what they deem to be appropriate editorial discretion within that open forum. Private property owners and private lessees would face the unappetizing choice of allowing all comers or closing the platform altogether. ?The Constitution by no means requires such an attenuated doctrine of dedication of private property to public use.? … Benjamin Franklin did not have to operate his newspaper as ?a stagecoach, with seats for everyone.? … That principle still holds true. As the Court said in Hudgens, to hold that private property owners providing a forum for speech are constrained by the First Amendment would be ?to create a court-made law wholly disregarding the constitutional basis on which private ownership of property rests in this country.? … The Constitution does not disable private property owners and private lessees from exercising editorial discretion over speech and speakers on their property
In other words, the executive order’s reliance on the the completely unrelated Packingham, and completely irrelevant Pruneyard cases, is just more nonsense.
Then the executive order tasks the Attorney General with hassling companies the President doesn’t like:
(a) The Attorney General shall establish a working group regarding the potential enforcement of State statutes that prohibit online platforms from engaging in unfair and deceptive acts and practices. The working group shall invite State Attorneys General for discussion and consultation, as appropriate and consistent with applicable law.
Of course, this is already happening with antitrust, and I doubt it will be any different here. Just more bad faith harassment over supposed political viewpoints.
The only thing in the executive order that is something that can be handled by an executive order is a petty and silly decision to maybe, kinda have the federal government stop buying ads on platforms the President dislikes. Except it doesn’t even say that. The title says that it’s a “prohibition on spending federal taxpayer dollars on advertising with online platforms that violate free speech principles” but that’s only the title. The actual details beneath that heading do not say that anyone has to stop buying ads. It just asks federal agencies to waste their time to account for how much they’re spending on advertising on these platforms and “assess.” That might lead to reduced advertising in practice, but it is not ordered here.
The head of each executive department and agency (agency) shall review its agency?s Federal spending on advertising and marketing paid to online platforms. Such review shall include the amount of money spent, the online platforms supported, the viewpoint-based speech restrictions imposed by each online platform, an assessment of whether the online platform is appropriate for such agency?s speech, and the statutory authorities available to restrict advertising dollars to online platforms not appropriate for such agency?s speech.
This, of course, seems kind of pointless and petty. It’s unlikely to do very much, but if it does lead to less advertising, it just harms the ability of the federal government to get out the messaging it wants to get out, so if the President wants to shoot himself in the foot that way, well, that’s his call. Of course, you can pretty much bet that as this is happening, the President’s re-election campaign is spending gobs and gobs of money on these very same platforms.
Anyway — this is all a distraction. The polls currently don’t look great for Trump and over 100,000 people are dead in large part due to Trump’s own mismanagement of the COVID-19 pandemic. He doesn’t want people talking about this, so he does something performative like this instead. It does get people talking about it, and he knows full well that his ignorant base of sycophantic followers will eat this up in the false belief that it actually means something and will somehow “take away” Section 230. It doesn’t. It can’t. It’s nonsense.
Still, it’s already working. I’ve already seen major media claiming that this is Trump “limiting” Section 230 or paring it back, and his fans are jumping up and down, even though the end result of this is not at all what they think it is. Don’t be one of those foolish people.