President Donald Trump has signed an executive order that calls for regulating online censorship on social media platforms, primarily Facebook and Twitter, both of which are called out by name on the order. The order consists of eight sections, the last two of which are definitions and general provisions common to these orders.
The primary actions called for in the order are for the Secretary of Commerce to file a petition for rulemaking with the FCC requesting that the agency propose regulations to clarify sections of the Communications Decency Act that allow online platforms to be free from liability for items posted there, but which still give the platforms the ability to moderate content.
In addition, the order also directs the FTC to consider taking action in cases of complaints received by the White House of political bias on social media, and then to take action for deceptive acts or practices in such cases. The order also asks the FTC to consider complaints against Twitter as violations of the law.
State laws involving deceptive practices or state anti-discrimination laws are the subject of a section in which the Attorney General is directed to establish a working group that will examine state laws, and where they’re lacking in controls over online platforms, to create model legislation that the states would then be asked to enact. An additional section directs the Attorney General to develop a proposal for federal legislation that would then be sent to Congress for action, and it directs agencies to stop advertising on social media platforms that don’t meet the president’s guidelines.
The majority of the executive order is the first section, which is a listing of personal grievances, primarily against Twitter, which a few days prior began putting fact check links on a few of the president’s Tweets. In his order, Mr. Trump says that he’s the only politician who has been fact checked, but in reality, Twitter has applied fact checking elsewhere, notably against some Chinese politicians. Likewise, Facebook has been fact checking postings on its platform for some time, including blocking fake videos.
“Trump’s executive order on social media is a silly distraction from a serious debate,” said Sarah Miller Executive Director of the Economic Liberties Project in a prepared statement. “This executive order is basically a request to independent agencies, the Federal Communications Commission and the Federal Trade Commission, to act in some vague manner. The President cannot single-handedly change a law, he cannot order independent agencies to act, and his executive order reflects that.”
And in fact, the wording of the executive order avoids words that would seem to direct either agency to do anything. It says that the FCC would be sent a proposal for rulemaking, but there’s no legal requirement for it to act. Likewise, the FTC is asked to consider taking action, but is not ordered.
“This strikes me as potentially good politics in revving up his base, but not at all sound as a matter of administrative law or constitutional law,” said Paul Barrett, deputy director of the Center for Business and Human Rights at NYU.
Noting that the executive order bases its argument on the First Amendment to the Constitution that guarantees freedom of speech and of the press, Barrett said that the president doesn’t understand how it works. “The First amendment is not designed to protect the president, but to protect Twitter from the president.”
The executive order goes into effect when it’s published in the Federal Register, which should happen around June 1, 2020.
A number of observers have said that the executive order is unconstitutional, and attempts to enforce it would fail in the courts. However, neither the FCC nor the FTC are required to take any action, and even if they do, the legal challenges that follow would drag on for years.
Neither Twitter nor Facebook responded to requests for comments.