Trump’s Social Media Executive Order Is Purely for Show
The president has targeted Twitter, Facebook, and other platforms, but has little actual power over how they operate.Donald Trump’s anticipated executive order has no legal basis. But that’s also not the point.
After Twitter applied a fact-checking label to a pair of the president’s tweets for the first time ever this week, Donald Trump vowed revenge. “Twitter is completely stifling FREE SPEECH, and I, as President, will not allow it to happen!” he declared on—where else—Twitter. “Republicans feel that Social Media Platforms totally silence conservatives voices. We will strongly regulate, or close them down, before we can ever allow this to happen.” Today, he followed through … sort of.
This afternoon, Trump signed an executive order that targets not just Twitter but social media writ large. (You can read it here.) The White House will direct federal agencies to stop advertising on platforms that discriminate politically and ask the Federal Trade Commission to investigate whether platforms are mistreating users. Most significantly, it will ask the Federal Communications Commission to propose regulations that “clarify” the meaning of Section 230 of the Communications Decency Act—the federal law that gives internet platforms broad legal immunity over how they choose to regulate, or not, the content of user posts. It’s a not-so-veiled threat to punish Twitter and other platforms for purported anticonservative bias, by opening them up to costly litigation.
Let’s get one thing out of the way: As a legal matter, that last part is nonsense. The FCC has little to no power over the meaning of Section 230, because the law itself is extremely clear. Passed in 1996, it was designed to solve a problem that plagued web forums in the early years of the internet. According to the prevailing legal doctrine at the time, a site was not liable for content posted by its users; for legal purposes, it qualified as a “distributor,” rather than a “publisher.” Imposing any type of content moderation, however, exposed a site to publisher liability. This created a powerful incentive to allow a free-for-all devoid of even the most minimal standards around things like obscenity, racism, and libel. Section 230 addressed that problem by letting websites keep their immunity and moderate user content as they see fit, “whether or not such material is constitutionally protected.”