Trump faces long odds when it comes to changing Section 230 — but he may still earn a victory by scaring tech companies away from enforcing their moderation policies
President Trump’s latest executive order, targeting the legal protections that allow tech companies like Twitter and Facebook to moderate content without being sued, is unlikely to result in sweeping changes, according to legal experts.
The order, signed on Thursday, calls for the Federal Communications Commission to review Section 230 of the Communications Decency Act, a law that gives tech companies the ability to censor or moderate content on their platforms. Section 230, which was enacted in 1996, is also the legal shield that safeguards tech companies from being sued for what its users post. If Section 230 were to be curtailed or changed, it could become a major liability for Twitter, Facebook and Google-owned YouTube.
Still, the president does not have the authority to alter Section 230 — and his executive order underscores this fact, according to Olivier Sylvain, a law professor at Fordham University.
“I think it’s a big deal that the president thinks he should be able to do this, but it doesn’t have any real teeth,” Sylvain told TheWrap. “As a matter of law and legal governance, [the executive order] is full of problems.”
One issue, according to Sylvain, is that Trump’s executive order asks the Secretary of Commerce to petition the FCC to review Section 230; the FCC, according to the order, will optimally “propose regulations” to clarify whether social media companies should face repercussions for being “deceptive, pretextual, or inconsistent” with applying their terms of service.
“If that sounds convoluted, that’s because it is convoluted,” Sylvain said.
Compounding matters, it is legally questionable whether the FCC can really do anything to change Section 230. The answer is likely “no,” according to Sylvain. Instead, those changes would have to be made by Congress.
“They’ve asked an agency over which the president has control over, the Commerce Department, to petition the FCC, an independent agency over which he has no control,” Sylvain said. “And the only way we evaluate what the FCC can do is by looking at the statute, which is written by Congress, and Section 230 does not set out any authority for the FCC to interpret Section 230.”
Other legal experts agree Trump faces long odds when it comes to changing Section 230 — but he may still earn a victory of sorts by scaring tech companies away from enforcing their moderation policies.
“I do not think the executive action itself will have much impact,” Matt Bilinsky, a tech and media-focused attorney in Los Angeles, told TheWrap. “But I do think it’s an intimidation tactic intended to scare the social platforms away from behavior like ‘fact-checking’ labels.”
Trump’s executive order comes only a few days after Twitter, for the first time ever, attached a fact check notification to the president’s tweets. The notification linked to a brief explainer from Twitter, which the company developed in-house, pushing back against the president’s claims that mail-in voting has been tied to fraud.
Reps for Twitter did not respond to TheWrap’s request on Thursday.
A Facebook spokesperson told TheWrap it believes in “protecting freedom of expression on our services, while protecting our community from harmful content including content designed to stop voters from exercising their right to vote. Those rules apply to everybody. Repealing or limiting Section 230 will have the opposite effect. It will restrict more speech online, not less. By exposing companies to potential liability for everything that billions of people around the world say, this would penalize companies that choose to allow controversial speech and encourage platforms to censor anything that might offend anyone.”
Twitter’s move poured gasoline on the already-contentious relationship between Trump and Silicon Valley. Since taking office in 2017, the president has ripped companies like Facebook and Twitter on multiple occasions for their moderation policies. Those moderation choices in recent years have also irritated some users, who believe major social media companies have unfairly targeted conservative voices — charges the companies have pushed back against.
“A small handful of powerful social media monopolies controls a vast portion of all public and private communications in the United States,” Trump said on Thursday, after announcing he’d just signed the executive order. “They’ve had unchecked power to censor, restrict, edit, shape, hide, alter, virtually any form of communication between private citizens and large public audiences.”
The president added that his executive order “calls for new regulations” under Section 230 to “make it that social media companies that engage in censoring or any political conduct will not be able to keep their liability shield. That’s a big deal. They have a shield. They can do what they want.”
That legal shield was put there for a reason, though, according to Jeff Kosseff, a law professor at the U.S. Naval Academy and author of “The Twenty-Six Words That Created the Internet,” a book on Section 230. Last year, Kosseff told TheWrap the law was adopted to give sites “breathing room” to moderate content.
“Congress passed it because they did not want the platforms to be hands-off,” Kosseff said. “They gave platforms the tremendous flexibility to moderate objectionable content. That was a policy choice that Congress made.”
Trump’s executive order, according to critics on Thursday, fails to honor or acknowledge the law’s spirit.
“This order is an effort to intimidate technology companies from using tools that are indispensable to protecting the integrity of public discourse online,” said Jameel Jaffer, the executive director of the Knight First Amendment Institute at Columbia University. “The order was born unconstitutional because it was issued in retaliation for Twitter’s fact-checking of President Trump’s tweets. Some of its provisions raise additional constitutional concerns since they seem to contemplate that the government will investigate and punish internet service providers for decisions that are protected by the First Amendment. There may well be regulation and legislation worth considering in this sphere, but whatever else this order may be, it is not a good faith effort to protect free speech online.”
While Trump’s executive order faces an uphill battle, it has still drawn the attention of top tech executives. Facebook chief Mark Zuckerberg, for instance, has looked to distance his company from Twitter’s action on Tuesday.
“I don’t think that Facebook or internet platforms in general should be arbiters of truth,” Zuckerberg told CNBC on Thursday morning. “Political speech is one of the most sensitive parts in a democracy, and people should be able to see what politicians say.”
Ultimately, this could be the lasting legacy of Thursday’s executive order: spooking tech companies, in an election year, into being more laissez-faire with their content moderation. But “the likelihood that it’ll change Section 230 in the near future is low,” Sylvain said.
J. Clara Chan contributed to this report.