President Trump’s executive order that aims to strip certain legal protections from social media companies such as Twitter and Facebook is making political waves, but legal experts say the measure is mostly toothless and vulnerable to court challenges.
The order drew praise from Trump allies who share the president’s view that Silicon Valley carries an anti-conservative bias. The practical effect of Trump’s executive action, however, is likely to be minimal, according to telecommunications lawyers.
The most ambitious component of the order is a proposal to peel back legal immunities that online platforms have enjoyed for almost 25 years. Those valuable protections fall under a provision of a 1996 law often referred to as Section 230.
Trump’s order argues that the section was never intended to grant blanket immunity “to allow a handful of companies to grow into titans … and silence viewpoints that they dislike.”
Legal experts say that hollowing out the key provision of the 1996 Communications Decency Act would turn the internet upside down, shifting it from a system that has mostly relied on self-governance to one of federal oversight and civil litigation.
Yet many legal observers don’t see the order succeeding in reshaping how the internet is regulated. In addition to likely court challenges, the order also faces a few regulatory hurdles within the government.
Under the order, the Trump administration will first direct an agency within the Commerce Department to file a petition with the Federal Communications Commission (FCC) to clarify the scope of Section 230. If the FCC were to issue a new rule, it could make social media platforms more liable for claims based on third-party content as well as their efforts to moderate their platforms, which currently enjoy legal cover as long as the platforms operate in good faith.
As an independent agency, the FCC could refuse the request. The two Democratic members of the five-person commission have already announced their opposition to Trump’s idea.
“Social media can be frustrating. But an Executive Order that would turn the Federal Communications Commission into the President’s speech police is not the answer,” said Jessica Rosenworcel, one of the Democratic commissioners.
FCC Chairman Ajit Pai (R) did not make his view publicly known, saying only that the commission “will carefully review any petition for rulemaking” filed by the Trump administration, adding, “This debate is an important one.”
Experts in telecommunications law say Pai is unlikely to undercut the current suite of legal protections.
“Right now, I have no doubt that Ajit Pai of the FCC is not going to move on this,” said Berin Szoka, a senior fellow at TechFreedom, a free market think tank.
Trump’s plan would have a higher likelihood of succeeding if he were to win a second term and nominate a new FCC chairman who is more favorable to issuing a new sweeping rule.
Commissioner Brendan Carr (R) has spoken favorably about Trump’s proposal.
“I think given what we’ve seen over the last 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 Yahoo Finance on Thursday.
Still, Szoka and other experts who spoke to The Hill agreed that a new rule by the FCC would invite legal challenges.
Gigi Sohn, a distinguished fellow at the Georgetown Law Institute for Technology Law and Policy, said Trump would face an uphill battle in court.
“It’s either a violation of the agency’s authority — the FCC doesn’t have the authority to regulate content on social media platforms — or it’s unconstitutional as a limitation on free speech,” she said.
Given the unlikelihood of it surviving a legal challenge, Sohn said the order appeared aimed at “working the refs” before the 2020 election.
Trump’s move Thursday marked an escalation of his long-running feud with Silicon Valley over allegations of anti-conservative bias.
The latest battle was sparked on Tuesday when Twitter took the unprecedented step of warning users about the accuracy of Trump’s tweets that exaggerated the risks of voter fraud, linking his remarks to fact checks.
Trump lashed out in a series of subsequent tweets, threatening to “close” social media platforms and accusing the company of “stifling FREE SPEECH” and harboring bias against conservatives.
But Trump’s claim of anti-conservative bias lacks evidence. No empirical studies have substantiated his assertions.
Thursday’s order also called on Attorney General William Barr to propose legislation that would increase federal regulation of social media companies.
During the White House signing ceremony, Trump and Barr indicated that legislation on Section 230 could arrive soon. Barr did not provide further details, while Trump suggested lawmakers could just “remove or totally change 230.”
A vote on such a measure, however, would put Republican lawmakers in a tough spot, making them choose between free market principles and their loyalty to Trump.
Another section of Trump’s order would direct users’ complaints about political bias to the Federal Trade Commission (FTC) and task the agency with reviewing whether allegations amount to “unfair or deceptive business practices.”
Experts say that if the FTC were to reach the same conclusions as Trump, it would cut against how the courts have long interpreted Section 230.
“To the extent the FTC attempts to find that there is an unfair or deceptive practice here, it has to overcome the way in which courts interpret Section 230 and also prove that the social media have acted ‘deceptively’ in a way that actually harmed users,” said Harold Feld, a senior vice president at Public Knowledge, a public interest group that supports internet freedom.
“Since the terms of service are written to allow social media platforms to do whatever they want, this is effectively impossible,” Feld added.
Feld said the one provision of the order that would be most likely to make an impact is Trump’s push to curtail federal spending on the platforms. But that too could suffer a similar fate under a legal challenge, he said.
“This may violate the doctrine of an ‘unconstitutional condition,’ where the government cannot condition receiving a benefit on something unconstitutional,” he said.
“It’s pretty clear that what the government is actually doing here is the precise thing the First Amendment was designed to prevent: the president using his power to make himself immune from public criticism and silencing his rivals,” he added.