U.S. markets closed

Trump’s Social-Media Order Attacked and Probably Won’t Work

Ben Brody and Todd Shields

(Bloomberg) -- President Donald Trump unleashed an executive order targeting social media companies like Twitter Inc. that have drawn his wrath -- an effort subject to immediate doubts about its constitutionality and whether it would actually deliver its intended punch.

Yet the order on Thursday succeeded on another level for Trump. It shifted attention from his struggles responding to the coronavirus pandemic and a cratering U.S. economy. It also delivered a stark warning to the internet giants he’s tussled with since taking office, while sending an encouraging message to his political base, less than six months before the election.

The move showed Trump using the power of his office to squeeze an industry over a political grievance, in this case his complaint that Twitter fact-checked his tweets about mail-in ballots. The order -- which could expose Twitter, Facebook Inc. and other technology giants to a flurry of lawsuits -- sparked broad condemnation from liberals and even some conservatives who accused the president of launching an unconstitutional assault on free speech.

The clash escalated Friday when Twitter flagged another Trump tweet that the company said violated its rules about glorifying violence. Twitter obscured the offending message, about violence in Minnesota after the death of man in police custody, but said it may be in the public interest for the post to remain accessible.

Trump, who uses Twitter to bypass the mainstream media and communicate directly with the public, is stoking the fight just as his re-election is increasingly at risk over his handling of the pandemic, which has killed more than 100,000 people and forced tens of millions out of work.

Fordham University law professor Olivier Sylvain called the order little more than bluster to please Trump’s base, which is receptive to his claims that the social-media platforms censor right-wing viewpoints. Sylvain and other scholars said the measure is toothless, disjointed, and unlikely to survive a court challenge.

“These are editorial decisions that are in the heartland of what we think is protected speech,” Sylvain said. “Even threatening it from the White House, that should be deeply troubling to anybody.”

The order, which follows a multi-year effort by Trump to rein in internet platforms over his claims of anti-conservative bias, seeks to narrow liability protections that social media companies enjoy for posts by third parties.

It specifically names Twitter, Facebook, Instagram and Alphabet Inc.’s YouTube for their power to shape public perceptions. It raises the specter that the government is trying to punish decisions about content by the platforms that it disagrees with, which is banned by the free-speech protections in U.S. Constitution’s First Amendment.

Singles Out Schiff

It also revives Trump’s anti-Obama rhetoric, and singles out a specific critic in the Democratic Party: “As recently as last week, Representative Adam Schiff was continuing to mislead his followers by peddling the long-disproved Russian Collusion Hoax, and Twitter did not flag those tweets.”

Twitter shares fell 2% in New York trading, while Facebook shares were little changed.

Liability protections for internet platforms are spelled out under Section 230 of the Communications Decency Act of 1996, which allows the companies to display content that’s controversial, offensive and libelous without fear of lawsuits. The law also protects companies from legal repercussions if they take down posts “in good faith” -- a term it leaves undefined -- because lawmakers wanted to limit objectionable content, including pornography.

The Little Law That Made the Internet a Free for All: QuickTake

The executive order takes aim at this second protection by pushing the Federal Communications Commission to issue rules defining bad faith. That could open the door for lawsuits if the decisions to take down content were inconsistent with companies’ terms of service, didn’t provide enough notice, or failed to meet other criteria laid out by the FCC.

The order also pushes the FCC to examine whether companies should still enjoy a legal shield when they leave users’ controversial content on display.

On Friday morning, Trump suggested that he wanted to go even further than the order, tweeting simply, “REVOKE 230!”

That would require action by Congress, which has viewed the provision with increasing skepticism in recent years. While Republicans have complained about alleged bias, liberals have objected to what they see as a proliferation of harmful content, including election-meddling and race and gender hate speech. Both sides have also complained about drug trading, terrorist content and the online sex trade, which prompted changes to the law in 2018.

Elimination Target

Although Congress is focused on responding to the coronavirus pandemic at the moment, lawmakers’ concerns have a “good chance” of leading to the elimination of the law in coming years, said Jeff Kosseff, a law professor at the U.S. Naval Academy who has authored a history of Section 230.

“If you had asked me a few years ago, ‘Will Section 230 be repealed?’ I would have said, ‘No, this thing is sacrosanct,’” Kosseff said. But now, he added, “there is such anger at the platforms, and rightly or wrongly, Section 230 is what people are taking their anger out on.”

The internet without Section 230 might not look quite the way conservative critics might envision it, as platforms could choose to respond to the threat of more litigation by taking down even more content.

Trump, who routinely courts and promotes conservative provocateurs online, has repeatedly suggested that the social media platforms silence right-wing ideas and has suggested that the federal government should intervene to protect free speech.

‘Big Day’

“In a country that has long cherished the freedom of expression, we cannot allow a limited number of online platforms to hand-pick the speech that Americans may access and convey on the Internet,” the order stated.

“This will be a Big Day for social media and FAIRNESS!” Trump said in a tweet Thursday morning that has garnered more than 270,000 likes.

Trade groups representing technology platforms, civil liberties organizations and legal scholars slammed initial reports of the executive order, saying that it was unlikely to survive a court challenge and that punishing ideas that the administration dislikes is incompatible with the order’s claims of protecting free speech.

The order “would be a blatant and unconstitutional threat to punish social media companies that displease the president,” said Kate Ruane, senior legislative counsel of the American Civil Liberties Union, which is a frequent Trump critic. She said it was ironic that the president, a prolific tweeter with 80.6 million followers on the platform, would attempt to weaken the company’s protections against the kind of controversial content he often spreads.

“The president is trampling the First Amendment by threatening the fundamental free-speech rights of social-media platforms,” said Steve DelBianco, president of NetChoice, a conservative-allied trade association that counts Twitter and Facebook as members.

Denunciations by Democrats

The order sparked a chorus of criticisms from Democrats, including former Vice President Joe Biden, Trump’s presumptive Democratic challenger, House Speaker Nancy Pelosi, and Senator Ron Wyden of Oregon, who helped write Section 230 when he served in the House in the 1990s.

“Donald Trump’s misinformation campaigns have left death and destruction in their wake,” Wyden said in a statement. “He’s clearly targeting Section 230 because it protects private businesses’ right not to have to play host to his lies.”

Twitter and other social-media companies have apologized for occasional mistakes around taking down harmful or misleading content, but deny that they deliberately silence any political viewpoints. The platforms say they’re focused on users who are threatening or spread harmful misinformation on issues such as voting or the coronavirus.

Yet some conservatives celebrated the executive order, saying the power of the internet giants must be reined in. “Given the political and cultural influence that these multinational corporations wield, it is of utmost importance to defend free speech values,” said Jon Schweppe, director of policy and government affairs of the Trump-allied American Principles Project, although he expressed some reservations about the order’s “deference to federal agencies.”

Directive to FCC

The order directs the Commerce Department to ask the FCC for the rulemaking within 60 days. If the agency decides to take up the issue, it could still be months before it issues a final regulation. The FCC could also decline to act because it isn’t controlled by the Commerce Department. And any rules could spark lawsuits from the companies, which they would likely win, according to Gautam Hans, a law professor at Vanderbilt University.

Andrew Jay Schwartzman, senior counselor at the Benton Institute for Broadband & Society, said the FCC has no authority to enforce Section 230 and called the directive “preposterous, but at the same time, horrifying.”

The FCC, which is independent from the White House and is overseen by Congress, regulates airwaves uses and telephone providers, and doesn’t oversee internet companies. The order attempts to give the agency a role by having the Commerce Department request action.

“This is about working the ref” and intimidating Twitter, said Gigi Sohn, who served as counselor to former FCC Chairman Tom Wheeler, a Democrat.

FCC Chairman Ajit Pai -- a Republican and Trump appointee -- has criticized Twitter for what he called a politically motivated approach to content.

“This debate is an important one,” Pai said in a statement on Thursday, adding that his agency “will carefully review any petition for rulemaking filed by the Department of Commerce.”

FCC Commissioner Michael O’Rielly, a Republican, slammed the platforms in a tweet and said that he wasn’t troubled by the White House’s seeking a “review of the statute’s application.” But he added that the First Amendment “governs much here.”

Democratic Commissioner Jessica Rosenworcel said in a statement that an executive order that would turn the agency into “the president’s speech police is not the answer” to frustrations with social media. “It’s time for those in Washington to speak up for the First Amendment,” she said.

The order also calls on the Federal Trade Commission, which has a consumer protection mandate, to take a closer look at whether companies misrepresent how they moderate content. And it convenes a working group of state attorneys general to look into similar practices, working with the Justice Department.

The FTC said in a statement that it’s committed to laws “consistent with our jurisdictional authority and constitutional limitations.”

The order would also initiate a review of all ad spending on the platforms by executive branch agencies with reports to the government’s budget office and have the Justice Department determine if the platforms are “problematic vehicles for government speech.” The department should also propose legislation to change the law, under the order.

(Updates with potential for Congress to reform or repeal Section 230 from 14th paragraph)

For more articles like this, please visit us at bloomberg.com

Subscribe now to stay ahead with the most trusted business news source.

©2020 Bloomberg L.P.