Donald Trump’s May 28, 2020 executive order targeting social media companies has been sucking up a lot of oxygen in the already overloaded news cycle, and for good reason. It reveals the president’s indefensible misunderstanding of First Amendment basics — including that the Constitution does not bind private actors like Twitter, only government actors like President Donald J. Trump.
It also displays an ignorance about how federal law is made. Trump’s order purports to trigger changes to an act of Congress known as the 1996 Communications Decency Act, which provides legal immunity to websites that publish other peoples’ content. If a restaurant goer posts a bad review on Yelp, for example, the restaurant cannot sue Yelp — even if the bad review amounts to defamation, which is against the law. Section 230 of the statute states, “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another content provider.” In other words, don’t kill the messenger.
After Twitter posted a clarification that two of Trump’s tweets were “potentially misleading” regarding the facts regarding mail-in ballots, Trump trumped up the executive order, explaining upon signing it that, “We’re here today to defend free speech from one of the greatest dangers.” In Trump’s mind, he is forever the victim, despite the massive and ever-expanding powers of his unique office.
Yet, the saddest part of this tale may be what the order does not say in express terms: that by drafting it for the president, career government lawyers are feeding his narcissism at the expense of their own professionalism and legitimacy.
In general, the order canvasses the federal government and loops in a panoply of federal agencies to avenge Trump’s hurt over Twitter’s subtle rebuke.
More specifically, first, it prompts the Federal Communications Commission (FCC) to rethink the statute’s liability protections to the extent that online platforms “instead engage in deceptive or pretextual actions . . . to stifle viewpoints with which they disagree,” and directs the secretary of commerce (of all people) to “file a petition for rulemaking” with the FCC.
Translation: Donald Trump believes that Twitter shouldn’t ping his lies on Twitter because it gets him very upset, so he wants the FCC to pass penalizing regulations that undermine the statute’s immunity provision under the guise of “interpreting” the Communications Decency Act.
Note here that conservatives traditionally reject regulatory power and the federal administrative bureaucracy as infringing on Congress’s prerogative to make laws. If the Communications Decency Act is to be amended, Congress — not Trump or the agencies that answer to him — must do it under Article I of the Constitution. (The order admits as much in Section 6, which tasks the attorney general with proposing legislation to amend the statute. Good luck getting it past the Democratic majority in the House of Representatives.)
To the extent the executive order itself infringes on free speech, even Congress can do nothing to save it. The Constitution is the supreme law of the land.
Second, the order goes on to hint that “Federal spending on advertising and marketing paid to online platforms” will be shrunk if it turns out that the Department of Justice finds “any online platforms are problematic vehicles for government speech due to viewpoint discrimination, deception to consumers, or other bad practices.”
Translation: If Twitter keeps exercising its own right to post speech on its own platform that is inconsistent with Trump’s speech, Trump will penalize it by cutting any federal spending that is currently going Twitter’s way.
Third, the order directs the Federal Trade Commission (FTC) to “consider taking action . . . to prohibit unfair or deceptive acts or practices” that “may include practices by entities covered by section 230 that restrict speech in ways that do not align with those entities’ public representations about those practices.” For Twitter in particular, the FTC is supposed to create and make “publicly available” a report describing any consumer complaints that “allege violations of law.”
Translation: The FTC is tasked with legally penalizing and publicly shaming Twitter for pinging the president for his lies about mail-in voting.
Finally, the order directs the attorney general to “establish a working group” that invites state attorneys general to consider “potential enforcement of State statutes that prohibit online platforms from engaging in unfair or deceptive acts or practices.”
Translation: Attorney General Barr is to step outside his federal law enforcement role and marshal state attorneys’ general to see about applying state laws adversely to Twitter too.
Yes, Trump is that mad.
Of course, the irony here is that Trump’s perceived victimhood has produced an order that itself seeks to infringe on valid speech under the First Amendment. Trump is not a private citizen; Twitter is. But more concerning is the apparent reality that a cadre of federal public servants — including lawyers who passed the bars of their respective states and entered the federal government pledging to serve the interests of the public — researched, drafted, polished and signed off on this troubling missive.
It takes heroes to keep democracy going. Where are they now?
Kimberly Wehle is a Visiting Professor of Law at American University’s Washington College of Law, and author of the books, How to Read the Constitution—and Why, and What You Need to Know About Voting—and Why (to be released on June 16). Follow her on Twitter @kim_wehle.