WASHINGTON D.C. Today, the White House released a long-rumored Executive Order entitled “Preventing Online Censorship.” The Order blasts social media services for alleged political bias against conservatives; calls on the Federal Communications Commission to issue rules gutting Section 230 immunity, which has been essential to nearly all websites; asks the Federal Trade Commission and state Attorneys General to sue websites for being political biased; bars all federal agencies from buying ads on social media services deemed to be “biased;” and calls for the new federal and legislation.

“This is pure political theatre — and an affront to the Constitution,” said Ashkhen Kazaryan, Director of Civil Liberties at TechFreedom. “The Order is a hodgepodge of outdated and inapplicable precedents combined with flagrant misinterpretations of both the First Amendment and Section 230. The Order claims that Twitter and Facebook are the ‘the functional equivalent of a traditional public forum,’ but the Supreme Court has clearly rejected such arguments — led by none other than Trump appointee Brett Kavanaugh.” 

“The Order would gut Section 230, the law that has made today’s Internet possible,” continued Kazaryan. “Trump demands a complete rewriting of Section 230 — not by Congress but by the FCC — based on two preposterous legal arguments: First, the Order collapses the statute’s three separate immunities, which work differently, into a single immunity that require defendants to prove that they acted in ‘good faith.’ That would transform the statute, opening the floodgates to frivolous lawsuits intended to harass website operators — not only from private plaintiffs like Prager U but all federal agencies, which the Order commands to take action. Second, the Order asks the FCC to write rules defining ‘good faith’ in such expansive terms that websites could be sued not only for failing to deliver on general statements they make about their neutrality but also for every aspect of their content moderation process. In effect, the FCC would micromanage how websites work.”

“This would create a new Fairness Doctrine for the Internet — something the Republican party platform warned against as late as 2016,” noted Kazaryan. “The goal here is obvious: to allow Trump’s supporters to ‘work the refs’, pressuring social media not to moderate content in ways that might hurt them, or even to actively favor them. But even if none of this becomes law, the Order has already succeeded in politicizing content moderation — and feeding the growing persecution complex among conservatives that social media are out to get them. Conservatives should remember why they fought FCC regulation of broadcasting for decades: it will eventually come back to bite them, and it’s grossly unconstitutional. FCC Chairman Pai has been clear that he’s a champion of the First Amendment. We hope he’ll reject any attempts by the White House to force the FCC into taking actions that would violate the First Amendment.”

“Even if the FCC issued the rules Trump wants, enforcing them would be unconstitutional,” concluded Kazaryan. “In 2004, left-wing activists asked the FTC to sue Fox News for failing to deliver on its promises to be ‘Fair and Balanced.’ The Republican FTC Chairman responded: ‘There is no way to evaluate this petition without evaluating the content of the news at issue. That is a task the First Amendment leaves to the American people, not a government agency.’ The same is true for policing the fairness of social media: it’s just not a job for the government. Any attempt to enforce Trump’s executive order will fail in court on First Amendment grounds. ”

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We can be reached for comment at media@techfreedom.org. See more of our work on free speech and Section 230 on our website, including:

  • Our Twitter thread breaking down the White House EO
  • Our Twitter thread addressing FCC Commissioner Carr’s Interview on the matter
  • Our letter to the Senate Judiciary analyzing the EARN IT Act. PR on the letter.
  • A coalition letter by 27 civil society organizations and 53 academics a set of seven principles to guide conversation about amending Section 230 of the Communications Decency Act of 1996
  • Our statement on Sen. Hawley’s proposed legislation on regulating the Internet
  • Our op-ed “Some conservatives need a First Amendment refresher”
  • Our letter to AG Sessions “DOJ Inquiry re Tech Companies Bias is Misguided”
  • Our blogpost “Reality Check for Trump and Republicans Crying ‘Bias’”!
  • President Berin Szóka’s testimony before the House Judiciary Committee on the filtering practices of social media platforms
  • Our statement on the passage of SESTA
  • Our statement on the takedown of Backpage and its implications for Section 230 and recent sex trafficking legislation
  • Tech Policy Podcast #251: SESTA/FOSTA Hurts Victims It Aims to Protect

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