Attorney General William Barr, left, with President Trump, who on Thursday signed an executive order with the intent of limiting some protections afforded social-media firms. PHOTO: JONATHAN ERNST/REUTERS
Trump Signs Executive Order Targeting Social Media
| le 29 May 2020
Measure seeks to limit the broad legal protection that federal law provides online platforms
By John D. McKinnon
and Rebecca Ballhaus – The Wall Street Journal
WASHINGTON—President Trump signed an executive order on Thursday seeking to limit the broad legal protection that federal law currently provides to social-media and other online platforms, a move that is expected to draw immediate court challenges.
The order seeks to make it easier for federal regulators to hold companies such as Twitter and Facebook liable if they are deemed to be unfairly curbing users’ speech by, for example, suspending their accounts or deleting their posts.
Mr. Trump signed the order after Twitter on Tuesday moved for the first time to apply a fact-checking notice to tweets by the president on the subject of voter fraud.
Twitter early Friday attached a public-interest notice to a tweet from Mr. Trump about the violent protests in Minneapolis in response to the death of George Floyd while in police custody. The social-media company said the tweet violated its rules about glorifying violence but allowed users to access it via a link.
Speaking in the Oval Office Thursday as he prepared to sign the order, the Republican president accused Twitter of acting as an editor “with a viewpoint” and described the platform’s fact-check of his tweets as “political activism.” He said he would delete his Twitter account “in a heartbeat” if he felt the news media were fair to him.
“We’re here today to defend free speech from one of the greatest dangers,” the president said. He acknowledged the order would likely be challenged in court, but said: “What isn’t?”
Mr. Trump, who frequently posts on Twitter and has more than 80 million followers on the platform, said that, if his lawyers could find a way to legally shut down Twitter, “I would do it.”
Shares of social-media companies fell on Mr. Trump’s comments. Twitter lost $1.47, or 4.5%, to $31.60. Facebook shares fell $3.68, or 1.6%, to $226.46.
The order seeks to scale back sweeping legal protections that Washington established for online platforms in the 1990s, in the internet’s early days. Those protections were created by Congress in Section 230 of the 1996 Communications Decency Act.
In a post late Thursday, Twitter described the executive order as “a reactionary and politicized approach to a landmark law.” It said Section 230 protects innovation and freedom of expression, and that “attempts to unilaterally erode it threaten the future of online speech and Internet freedoms.”
Facebook on Thursday said that repealing or limiting section 230 would “restrict more speech online, not less” and “would penalize companies that choose to allow controversial speech and encourage platforms to censor anything that might offend anyone.”
Google also criticized the executive order on Thursday. “Undermining Section 230 in this way would hurt America’s economy and its global leadership on internet freedom,” a Google spokeswoman said in a statement. The company enforces its content policies without regard to political viewpoint, she said.
Twitter’s action on Mr. Trump’s tweets Tuesday marked the first time it had applied a fact-check label to tweets unrelated to coronavirus. The company has since put fact-check labels on others’ tweets about other subjects.
Attorney General William Barr, speaking alongside the president, said the Justice Department would draft legislation for Congress on curtailing social-media companies’ liability protections, which Mr. Trump said could include proposing to “just remove or totally change” Section 230. Mr. Barr said the executive order would return the federal law to its intended scope.
The president’s move escalates an already heated fight over how big social-media platforms handle politically charged content. The companies long resisted stronger moderation efforts; they have struggled to address growing pressure to combat the proliferation of misinformation and other problematic content in a way that avoids fueling criticism that they are inconsistent, biased or stifling free expression.
The order marks the Trump administration’s most aggressive effort against social-media companies. The president has threatened for years to counteract what he and many conservatives see as a systemic bias against their political positions on social media. His campaign on Thursday sent supporters an email seeking to raise money off the president’s feud with Twitter.
The order will likely be challenged in court, experts said, on grounds that it oversteps the government’s authority in restricting the platforms’ legal protections, which federal courts have interpreted broadly. It also could be challenged on grounds that it violates their First Amendment protections.
The White House declined to comment.
Facebook Chief Executive Mark Zuckerberg, in a CNBC interview aired earlier Thursday, backed his stance of largely not interfering with politicians’ posts on the company’s platform. “I don’t think Facebook or internet platforms in general should be arbiters of truth,” Mr. Zuckerberg said. “I think that’s kind of a dangerous line to get to in terms of deciding what is true and what isn’t.”
Tech-industry officials criticized the president’s plan. “All Americans should be concerned to find a U.S. president issuing executive orders in response to a company that challenges the veracity of his statements,” said Matt Schruers, president of the Computer & Communications Industry Association.
Daphne Keller, a former associate general counsel at Google who is now director of the Program on Platform Regulation at Stanford University’s Cyber Policy Center, said the White House order is largely rhetoric without legal foundation. But she said it reflects an almost unsolvable bind for the tech companies given their size and influence.
“They get it from both sides: Powerful voices demand that they take down more speech, and other powerful voices demand that they take down less,” she said. “There is no way for them to win, since no one will ever agree on what the exact right speech policies would be.”
The White House order seeks to reshape the way federal regulators view Twitter and other social-media companies—not as hosts of speech but as gatekeepers that control millions of people’s daily experiences on their platforms.
“In a country that has long cherished the freedom of expression, we cannot allow a limited number of online platforms to handpick the speech that Americans may access and convey online,” the order says. “When large, powerful social media companies censor opinions with which they disagree, they exercise a dangerous power.”
The order also lays groundwork for treating the platforms as places where individuals’ First Amendment rights should be protected, terming them “a 21st-century equivalent of the public square.” Proponents of that view said companies should therefore face the same bar as the government for any actions they take limiting expression on their platforms. Opponents said government pressure on the platforms to change their editorial policies could itself violate the first amendment, and judges have consistently dismissed free speech cases against social-media platforms.
The order is far-reaching in scope, setting up multiple ways for the government to attack what the administration views as the problem of online censorship. The most important way is by seeking to scale back the Section 230 protections, which give online companies broad immunity from liability for their users’ actions, as well as wide latitude to police content on their sites.
If President Trump doesn’t like Twitter, he can do everyone a favor and stop tweeting.
Critics across the political spectrum have argued that the law now provides the tech giants too much power, while the platforms argue that it is essential to the internet’s functioning. However, there is little bipartisan agreement on changes to Section 230, limiting prospects for any quick moves in Congress.
In essence, the White House order asserts that tech companies should lose their Section 230 protection if they take action to discriminate against users or limit their access to a platform without providing a fair hearing, or in ways that aren’t spelled out in the platform’s terms of service.
The order directs the Commerce Department to petition the Federal Communications Commission to set up a rule-making proceeding to clarify the scope of Section 230. A key focus of that proceeding would be to determine when platforms have failed to live up to their obligations to act in “good faith” under the law when they police content.
Some experts said the FCC has no legal authority to enforce Section 230. FCC Chairman Ajit Pai said the commission “will carefully review any petition for rulemaking filed by the Department of Commerce.”
Jessica Rosenworcel, one of two Democratic commissioners on the five-member FCC, issued a statement in response to a draft of the executive order saying: “This does not work.”
Matt Perault, a former Facebook public policy director who is now director of Duke University’s Center on Science & Technology Policy, said that the executive order is legally flawed and that, if it did succeed, stripping Section 230 protections would likely lead to the platforms having to moderate content more strictly, not less.
Mr. Perault also said Twitter’s move is likely counterproductive for the tech companies. “What Twitter did was unhelpful,” he said. “It’s likely that few people received new, helpful information from the fact check, and instead it will rally the Republican base in support of policies that will harm the internet.”
Federal regulators, including the Federal Trade Commission, also could begin to look into complaints of online bias once the executive order is promulgated. A reporting tool the administration set up earlier collected more than 16,000 complaints in a matter of weeks, the draft order says. The FTC, for example, could begin to take enforcement action against companies that limit users’ speech in a manner that isn’t fully disclosed in their terms of service, or is contrary to the platforms’ public claims, on grounds that that constitutes an unfair or deceptive trade practice.
The Justice Department also would convene a working group of state attorneys general to look into complaints under the order, and federal agencies would be directed to review their advertising contracts with companies that engage in speech censorship.
Given the legal and regulatory challenges involved, it would likely be months before any actions proposed in the executive order would take effect on social-media platforms. For now, the initiative casts Mr. Trump as fighting for the rights of his base against a tech-industry establishment that his supporters widely view as biased in favor of liberal positions.
Trump administration officials have been discussing the executive order in various forms since 2018, as the president grew increasingly frustrated with tech companies, people familiar with the discussions said. In recent weeks, those discussions have picked up again. In mid-May, Mr. Trump tweeted that the “Radical Left” was in “total command & control” of Facebook, Instagram, Twitter and Google and said the administration was “working to remedy this illegal situation.”
Senate Democratic Leader Chuck Schumer of New York said in a tweet on Thursday: “If President Trump doesn’t like Twitter, he can do everyone a favor and stop tweeting.”