President Donald Trump’s increasingly heated feud with Twitter (TWTR) may be good for social media traffic, but his move to limit a platform’s right to moderate content may not be legally enforceable, according to experts.
An executive order signed by the president on Thursday empowers the Federal Communications Commission (FCC) to interpret and issue new regulations for Section 230 of the Communications Decency Act — which protects intermediary platforms like Facebook (FB), Twitter (TWTR), Alphabet’s YouTube (GOOG, GOOGL), among others.
Section 230 was originally created to enable online platforms to make good faith efforts to block content that the platform —or its users — consider to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, without jeopardizing the platform’s exposure to defamation lawsuits. That latitude gives social media an exemption not available to news organizations and other producers of editorial content.
By weakening the liability shield, Trump’s maneuver is designed to make it tougher for social media platforms to censor users’ content, especially political ones. The executive order takes aim at “immense, if not unprecedented power” that it says is wielded by Twitter, Facebook, Instagram and YouTube in shaping public opinion, which the president contends unfairly targets the GOP figures and right-leaning speech.
Section 230 is widely regarded across the political spectrum as a law in need of reform. Yet some experts say the president’s order is legally questionable, and certain to be met with a flurry of challenges.
“According to standing First Amendment doctrine, you don't have First Amendment rights against Twitter as a user,” Nikolas Guggenberger, a Yale Law School lecturer and executive director of the school’s Information Society Project, told Yahoo Finance this week.
Moreover, he said, social media platforms are entitled to their own First Amendment right to free speech, “even if that speech were biased.”
Guggenberger explained the order is problematic on at least two levels: The use of executive power in a way that attempts to circumvent the judicial branch, which has already ruled on interpretations of Section 230; and its obvious and concrete connection to speech perceived as adverse.
The impetus for the reform appears to be, at least in part, attributed to disapproval of Twitter’s action against Trump administration policy.
“The reason for the government to engage in [reform] should never, ever be that the government thinks that speech contradicts, or is [unfavorable] to government policy,” Guggenberger said.
‘Hard to find a clearer violation of the First Amendment’
Still, not every social network has taken Twitter’s position. Facebook has sustained heavy criticism for taking a more laissez-faire approach to political speech — a principle that CEO Mark Zuckerberg reaffirmed in an interview with CNBC Thursday.
“I don’t think that Facebook or internet platforms in general should be arbiters of truth,” Zuckerberg told the network. “I think political speech is one of the most sensitive parts in a democracy, and people should be able to see what politicians say, and there’s a ton of scrutiny.”
Trump’s executive order aims to limit the types of blocking actions that qualify as good faith, and task the FCC with that determination — which if limited, would increase platforms’ potential for liability under the law.
Some legal experts suggested the move is crafted specifically for Twitter, where Trump is a power user.
“It's pretty clear in context what he wants to do is prevent Twitter from responding to what he says,” Northwestern Pritzker School of Law professor, Andrew Koppelman, told Yahoo Finance.
“He wants to be able to disseminate falsehoods without those falsehoods being answered,” Koppelman added. “It’s hard to find a clearer violation of the First Amendment than that.”
Trump’s move directs federal agencies to file within 60 days a petition requesting the FCC propose regulations that clarify what constitutes good faith moderation. It also requires the Federal Trade Commission (FTC) to consider taking action against platforms to prohibit unfair or deceptive acts as prescribed by current law.
The order also calls for a review of federal advertising dollars spent on online platforms, and the reinstitution of a tool for citizens to report moderation they believe amounts to censorship. Those complaints are then to be made public and submitted to the Justice Department and the FTC to evaluate whether they constitute violations that justify legal action.
Northwestern’s Koppelman suggested that the executive order likely has little substance that could be accepted as legal, and that agency attorneys if tasked with writing regulations to enforce the executive order would struggle to do so without violating the First Amendment.
FCC Commissioner Bradley Carr defended Trump’s move this week, telling Yahoo Finance that social media sites benefit from “special protections” under Section 230 that other entities don’t have.
He added that “existing law has always said that if you engage in bad faith takedowns, you don't get those bonus protections and I think given what we've seen over the past few weeks, it makes sense to let the public weigh in and say, is that really what Congress meant when they passed and provided those special protections,” Carr told “On the Move” in an interview.
Carr referred to the portion of the order that offers a tool for citizens to report what they believe to be censorship of political views. Ultimately under the order, the FCC — and not public citizens — is tasked with how to define “good faith” under Section 230.
Yale’s Guggenberger said the portion of the order doesn’t raise legal concerns, as the government is entitled under its investigatory powers to set up a reporting tool.
According to Guggenberger, online platforms and users may have standing to launch legal challenges against Trump’s order, though it remains too early to tell. Until the order is alleged to have caused an injury, no party has legal standing to challenge it.
Plus, Northwestern’s Koppelman said the order remains somewhat dormant unless and until the federal agencies it invokes take action.
Alexis Keenan is a reporter for Yahoo Finance and former litigation attorney. Follow Alexis Keenan on Twitter @alexiskweed.
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