By Chris Megerian
Los Angeles Times
President Donald Trump signed an executive order Thursday targeting social media companies such as Twitter, accusing them of having “unchecked power” and escalating his feud with the same technology platforms he’s using as a political bullhorn in an election year.
“We’re fed up with it,” he said in the Oval Office.
The president has little power to modify federal rules without an act of Congress, but his actions _ if upheld by the courts, which is far from assured _ could increase political and financial pressure on social media companies by opening the door to lawsuits and regulatory reviews.
Legal experts described a draft copy of the executive order as political theater and said they don’t expect the final version to pass judicial muster. Critics accused Trump of misusing his authority to try to intimidate Twitter, Facebook and other Silicon Valley companies.
Trump waved off questions about whether he was overstepping his authority with the order, saying, “I guess it’s going to be challenged in court, but what isn’t?”
The move came two days after Twitter added a disclaimer to two Trump tweets that falsely said mail-in ballots led to widespread voter fraud. Although Twitter did not delete his tweets, the president accused it of censorship _ lashing out on Twitter.
“So ridiculous to see Twitter trying to make the case that Mail-In Ballots are not subject to FRAUD,” he tweeted Thursday. “How stupid, there are examples, & cases, all over the place. Our election process will become badly tainted & a laughingstock all over the World.”
The sparring with social media companies is another dividing line in the 2020 election. Conservatives complain that their voices are not heard and liberals demand greater efforts to flag deliberate falsehoods and disinformation _ especially from the president.
Under the First Amendment, the government cannot ban or censor free speech. But Twitter is not the government, and Section 230 of a 1996 federal law called the Communications Decency Act specifically protects internet companies from lawsuits or other liability for moderating content posted by users, or for the content itself.
In his executive order, Trump aims to modify the scope of Section 230.
If a company edits content _ apart from restricting posts that are violent, obscene or harassing _ “it is engaged in editorial conduct” and “forfeits any protection” under the law, according to a draft version of the president’s order posted online by Kate Klonick, a professor at St. John’s University School of Law in New York.
The order directs Commerce Secretary Wilbur Ross to request new regulations from the Federal Communications Commission to determine whether a social media company is acting “in good faith” to moderate content.
In theory, that could open the door to users suing social media platforms if they feel their posts are restricted inappropriately. But it could also make the companies more likely to take down false or misleading content rather that just add a disclaimer _ the opposite of what Trump wants.
“That’s the irony of all this,” said Nathaniel Persily, a Stanford University law professor who studies technology and democracy. “The platforms will be much more aggressive in their automated filtering to go after content that could raise their legal liability.”
Legal experts are skeptical that Trump’s order would pass judicial scrutiny given the wide berth Congress has given social media companies to police their own platforms. Trump has a history of using executive actions to make political statements that have little direct impact.
Daphne Keller, an expert on the regulation of technology platforms at Stanford’s Cyber Policy Center, said the draft of Trump’s order “reads like a stream-of-consciousness tweetstorm.”
“The underlying issues it raises are really important, of course,” she said. “We need an informed public debate about the power of platforms over public discourse. But that’s not what the (executive order) is.”
Under the draft order, U.S. Attorney General William Barr would work with state attorneys general to determine whether companies are violating any state laws. In addition, the White House would collect complaints about alleged online censorship and other unfair practices, then forward them to the Justice Department and the Federal Trade Commission for possible legal action.
The plan could provide another outlet for growing right-wing resentment toward social media companies, whom they accuse of censoring or downplaying conservative political messages.
Trump is a prolific user of Twitter, often tweeting or retweeting dozens of times a day. Some messages are banal and formulaic, but others are incendiary and baseless, such as his recent claims that Joe Scarborough, an MSNBC host, killed an intern in 2001.
The president’s reelection campaign also relies heavily on social media platforms, particularly Facebook, to aggressively target voters for the November election.
Although Trump faced sharp criticism for drafting an executive order as retaliation against Twitter, there’s bipartisan support in Washington for updating regulations regarding social media companies.
Joe Biden, the presumptive Democratic nominee, has called for revoking Section 230 entirely.
In an interview with The New York Times editorial board, he said Facebook and other social media companies were “propagating falsehoods they know to be false” and “it’s totally irresponsible.”
House Speaker Nancy Pelosi, a San Francisco Democrat, said social media companies’ “business model is to make money at the expense of the truth and the facts.” She has been the target of doctored videos _ at least two of which were circulated by Trump _ that Facebook has refused to take down.
She suggested that Trump and companies like Twitter were alike even though they’re currently feuding.
“They’ve all exploited the truth,” she said. “Some have made money off of it, and some have made political capital off of their misrepresentations.”
Persily describes Trump’s expected order as an effort to “work the refs” as the campaign heats up and political attacks are traded on social media.
“You’ll have folks encouraging them to take down content,” he said, “and folks encouraging them to leave it up.”