Update (2045ET): The full text of the executive order has been published (the final order is essentially identical to a ‘draft’ copy leaked to the press last night):
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By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered as follows:
Free speech is the bedrock of American democracy. Our Founding Fathers protected this sacred right with the First Amendment to the Constitution.
The freedom to express and debate ideas is the foundation for all of our rights as a free people.
In a country that has long cherished the freedom of expression, we cannot allow a limited number of online platforms to hand pick the speech that Americans may access and convey on the internet. This practice is fundamentally un-American and anti-democratic.
When large, powerful social media companies censor opinions with which they disagree, they exercise a dangerous power. They cease functioning as passive bulletin boards, and ought to be viewed and treated as content creators.
The growth of online platforms in recent years raises important questions about applying the ideals of the First Amendment to modern communications technology. Today, many Americans follow the news, stay in touch with friends and family, and share their views on current events through social media and other online platforms. As a result, these platforms function in many ways as a 21st century equivalent of the public square.
Twitter, Facebook, Instagram, and YouTube wield immense, if not unprecedented, power to shape the interpretation of public events; to censor, delete, or disappear information; and to control what people see or do not see.
As President, I have made clear my commitment to free and open debate on the internet. Such debate is just as important online as it is in our universities, our town halls, and our homes. It is essential to sustaining our democracy.
Online platforms are engaging in selective censorship that is harming our national discourse.
Tens of thousands of Americans have reported, among other troubling behaviors, online platforms “flagging” content as inappropriate, even though it does not violate any stated terms of service; making unannounced and unexplained changes to company policies that have the effect of disfavoring certain viewpoints; and deleting content and entire accounts with no warning, no rationale, and no recourse.
Twitter now selectively decides to place a warning label on certain tweets in a manner that clearly reflects political bias. As has been reported, Twitter seems never to have placed such a label on another politician’s tweet. As recently as last week, Representative Adam Schiff was continuing to mislead his followers by peddling the long-disproved Russian Collusion Hoax, and Twitter did not flag those tweets.
Unsurprisingly, its officer in charge of so-called ‘Site Integrity’ has flaunted his political bias in his own tweets.
At the same time online platforms are invoking inconsistent, irrational, and groundless justifications to censor or otherwise restrict Americans’ speech here at home, several online platforms are profiting from and promoting the aggression and disinformation spread by foreign governments like China.
One United States company, for example, created a search engine for the Chinese Communist Party that would have blacklisted searches for “human rights,” hid data unfavorable to the Chinese Communist Party, and tracked users determined appropriate for surveillance.
It also established research partnerships in China that provide direct benefits to the Chinese military.
Other companies have accepted advertisements paid for by the Chinese government that spread false information about China’s mass imprisonment of religious minorities, thereby enabling these abuses of human rights.
They have also amplified China’s propaganda abroad, including by allowing Chinese government officials to use their platforms to spread misinformation regarding the origins of the COVID-19 pandemic, and to undermine pro-democracy protests in Hong Kong.
As a Nation, we must foster and protect diverse viewpoints in today’s digital communications environment where all Americans can and should have a voice. We must seek transparency and accountability from online platforms, and encourage standards and tools to protect and preserve the integrity and openness of American discourse and freedom of expression.
Protections Against Online Censorship.
(a) It is the policy of the United States to foster clear ground rules promoting free and open debate on the internet. Prominent among the ground rules governing that debate is the immunity from liability created by section 230(c) of the Communications Decency Act (section 230(c)). 47 U.S.C. 230(c).
It is the policy of the United States that the scope of that immunity should be clarified: the immunity should not extend beyond its text and purpose to provide protection for those who purport to provide users a forum for free and open speech, but in reality use their power over a vital means of communication to engage in deceptive or pretextual actions stifling free and open debate by censoring certain viewpoints.
Section 230(c) was designed to address early court decisions holding that, if an online platform restricted access to some content posted by others, it would thereby become a “publisher” of all the content posted on its site for purposes of torts such as defamation.
As the title of section 230(c) makes clear, the provision provides limited liability “protection” to a provider of an interactive computer service (such as an online platform) that engages in “‘Good Samaritan’ blocking” of harmful content. In particular, the Congress sought to provide protections for online platforms that attempted to protect minors from harmful content and intended to ensure that such providers would not be discouraged from taking down harmful material.
The provision was also intended to further the express vision of the Congress that the internet is a “forum for a true diversity of political discourse.” 47 U.S.C. 230(a)(3). The limited protections provided by the statute should be construed with these purposes in mind.
In particular, subparagraph (c)(2) expressly addresses protections from “civil liability” and specifies that an interactive computer service provider may not be made liable “on account of” its decision in “good faith” to restrict access to content that it considers to be “obscene, lewd, lascivious, filthy, excessively violent, harassing or otherwise objectionable.”
It is the policy of the United States to ensure that, to the maximum extent permissible under the law, this provision is not distorted to provide liability protection for online platforms that – far from acting in “good faith” to remove objectionable content – instead engage in deceptive or pretextual actions (often contrary to their stated terms of service) to stifle viewpoints with which they disagree.
Section 230 was not intended to allow a handful of companies to grow into titans controlling vital avenues for our national discourse under the guise of promoting open forums for debate, and then to provide those behemoths blanket immunity when they use their power to censor content and silence viewpoints that they dislike.
When an interactive computer service provider removes or restricts access to content and its actions do not meet the criteria of subparagraph (c)(2)(A), it is engaged in editorial conduct. It is the policy of the United States that such a provider should properly lose the limited liability shield of subparagraph (c)(2)(A) and be exposed to liability like any traditional editor and publisher that is not an online provider.
(b) To advance the policy described in subsection (a) of this section, all executive departments and agencies should ensure that their application of section 230(c) properly reflects the narrow purpose of the section and take all appropriate actions in this regard. In addition, within 60 days of the date of this order, the Secretary of Commerce (Secretary), in consultation with the Attorney General, and acting through the National Telecommunications and Information Administration (NTIA), shall file a petition for rulemaking with the Federal Communications Commission (FCC) requesting that the FCC expeditiously propose regulations to clarify:
(i) the interaction between subparagraphs (c)(1) and (c)(2) of section 230, in particular to clarify and determine the circumstances under which a provider of an interactive computer service that restricts access to content in a manner not specifically protected by subparagraph (c)(2)(A) may also not be able to claim protection under subparagraph (c)(1), which merely states that a provider shall not be treated as a publisher or speaker for making third-party content available and does not address the provider’s responsibility for its own editorial decisions;
(ii) the conditions under which an action restricting access to or availability of material is not “taken in good faith” within the meaning of subparagraph (c)(2)(A) of section 230, particularly whether actions can be “taken in good faith” if they are:
(A) deceptive, pretextual, or inconsistent with a provider’s terms of service; or
(B) taken after failing to provide adequate notice, reasoned explanation, or a meaningful opportunity to be heard; and (iii) any other proposed regulations that the NTIA concludes may be appropriate to advance the policy described in subsection (a) of this section.
Protecting Federal Taxpayer Dollars from Financing Online Platforms That Restrict Free Speech.
(a) The head of each executive department and agency (agency) shall review its agency’s Federal spending on advertising and marketing paid to online platforms. Such review shall include the amount of money spent, the online platforms that receive Federal dollars, and the statutory authorities available to restrict their receipt of advertising dollars.
(b) Within 30 days of the date of this order, the head of each agency shall report its findings to the Director of the Office of Management and Budget.
(c) The Department of Justice shall review the viewpoint-based speech restrictions imposed by each online platform identified in the report described in subsection (b) of this section and assess whether any online platforms are problematic vehicles for government speech due to viewpoint discrimination, deception to consumers, or other bad practices.
Sec. 4. Federal Review of Unfair or Deceptive Acts or Practices. (a) It is the policy of the United States that large online platforms, such as Twitter and Facebook, as the critical means of promoting the free flow of speech and ideas today, should not restrict protected speech. The Supreme Court has noted that social media sites, as the modern public square, “can provide perhaps the most powerful mechanisms available to a private citizen to make his or her voice heard.” Packingham v. North Carolina, 137 S. Ct. 1730, 1737 (2017).
Communication through these channels has become important for meaningful participation in American democracy, including to petition elected leaders. These sites are providing an important forum to the public for others to engage in free expression and debate. Cf. PruneYard Shopping Center v. Robins, 447 U.S. 74, 85-89 (1980).
(b) In May of 2019, the White House launched a Tech Bias Reporting tool to allow Americans to report incidents of online censorship. In just weeks, the White House received over 16,000 complaints of online platforms censoring or otherwise taking action against users based on their political viewpoints. The White House will submit such complaints received to the Department of Justice and the Federal Trade Commission (FTC).
(c) The FTC shall consider taking action, as appropriate and consistent with applicable law, to prohibit unfair or deceptive acts or practices in or affecting commerce, pursuant to section 45 of title 15, United States Code. Such unfair or deceptive acts or practice 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.
(d) For large online platforms that are vast arenas for public debate, including the social media platform Twitter, the FTC shall also, consistent with its legal authority, consider whether complaints allege violations of law that implicate the policies set forth in section 4(a) of this order. The FTC shall consider developing a report describing such complaints and making the report publicly available, consistent with applicable law.
State Review of Unfair or Deceptive Acts or Practices and Anti-Discrimination Laws.
(a) The Attorney General shall establish a working group regarding the potential enforcement of State statutes that prohibit online platforms from engaging in unfair or deceptive acts or practices. The working group shall also develop model legislation for consideration by legislatures in States where existing statutes do not protect Americans from such unfair and deceptive acts and practices. The working group shall invite State Attorneys General for discussion and consultation, as appropriate and consistent with applicable law.
(b) Complaints described in section 4(b) of this order will be shared with the working group, consistent with applicable law. The working group shall also collect publicly available information regarding the following:
(i) increased scrutiny of users based on the other users they choose to follow, or their interactions with other users;
(ii) algorithms to suppress content or users based on indications of political alignment or viewpoint;
(iii) differential policies allowing for otherwise impermissible behavior, when committed by accounts associated with the Chinese
Communist Party or other anti-democratic associations or governments;
(iv) reliance on third-party entities, including contractors, media organizations, and individuals, with indicia of bias to review content; and (v) acts that limit the ability of users with particular viewpoints to earn money on the platform compared with other users similarly situated.
The Attorney General shall develop a proposal for Federal legislation that would be useful to promote the policy objectives of this order.
Definition. For purposes of this order, the term “online platform” means any website or application that allows users to create and share content or engage in social networking, or any general search engine.
Sec. 8. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:
(i) the authority granted by law to an executive department or agency, or the head thereof; or
(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
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Update (1550ET): During a press conference where President Trump signed an executive order pressuring social media companies like Facebook, Google and Twitter to stop showing political bias. The order is meant to chip away at the “liability shield” these platforms enjoy thanks to Section 230 of the Communications Decency Act of 1996.
The EO also requires the DoJ to work with state AGs to make sure they enforce laws on “deceptive” business practices. He added that social media companies are “tantamount to a monopoly” and have had unlimited power to shape and alter the national conversation.
When Twitter tags tweets as “misinformation”, they cease being a platform and effectively become “an editor with a viewpoint”. “What they chose to promote or ignore is nothing short of political activism,” Trump said. “This censorship is a threat to freedom itself – imagine if your phone company edited your text messages or blocked your phone calls.”
AG Barr, who was also in attendance, said Section 230 “was stretched way beyond its original intention…its purpose was to allow websites that were acting virtually as bulletin boards were not responsible for third-party information…”. When they “curate” their collection and start “censoring” particular content, they become publishers, and they shouldn’t be entitled to the same kind of shield that was set up earlier. He also explained how the executive order sets up a “rule making procedure for the FCC” to try and “get back to the original interpretation” of Section 230.
It also encourages state attorneys general to come up with “model” legislation addressing this at the state level.
“Currently social media platforms like twitter enjoy a liability shield because they are a ‘neutral platform’ – which they are not…social media companies who engage in editing or censorship will be stripped of this shield, while companies will be punished should they engage in any “deceptive” acts. Federal agencies will also be barred from buying advertising on these platforms – a direct attack on their bottom line.
Trump said he expects legal challenges to the order, but believes the White House will “do well” with them.
These companies grew because they held themselves out as a public forum…but now that they have become these very powerful networks, they’ve now switched, and they are using that market power to enforce particular view points,” he said. This should be addressed not only via the order, but in court challenges and legislation on Capitol Hill.
Conservatives believe these platforms shouldn’t be allowed to show as much bias in favor of liberals and progressive political views.
- TRUMP SAYS TWITTER HAS STARTED EDITORIALIZING
- TRUMP SAYS SOCIAL MEDIA COMPANIES HAVE UNCHECKED POWER
- TRUMP SAYS SOCIAL-MEDIA COMPANIES WILL LOSE LIABILITY SHIELD
- TRUMP SAYS HE WILL PURSUE LEGISLATION IN ADDITION TO HIS EXECUTIVE ORDER
- U.S. ATTORNEY GENERAL BARR SAYS THE EXECUTIVE ORDER DOES NOT REPEAL SECTION 230 OF COMMUNICATIONS LAW
- TRUMP SAYS TWITER SHOULD BE SHUT DOWN IF IT’S NOT HONORABLE
In true Trump form, the president took a swing at the traditional media, claiming that if press coverage of his presidency was “fair”, he would happily delete his twitter account.
During the Q&A, Trump bashed Twitter’s head of site integrity, Yoel Roth, who has made hysterical statements on his own twitter account, like insisting that there are “actual Nazis” in the White House. “If you’re going to have a guy like this make those decisions…I think we should just shut it down, as far as I’m concerned,” Trump said, adding that he would need to look into the legality of trying to close down Twitter (maybe he can convince Elon Musk to buy it, then delete it?).
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Update (1426ET): White House press secretary says Trump’s executive order should be issued by 5pmET.
— Steve Herman (@W7VOA) May 28, 2020
— Steve Herman (@W7VOA) May 28, 2020
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Update (1300ET): In a hilariously sly move, Trump just sent a tweet that will leave Twitter with an interesting dilemma: Slap another “misinformation” label on a presidential tweet that also includes criticism of the company itself (making it essentially censorship bait), or ignore it and face calls of being labeled “inconsistent” while everybody praises Mark Zuckerberg’s more measured approach.
So ridiculous to see Twitter trying to make the case that Mail-In Ballots are not subject to FRAUD. How stupid, there are examples, & cases, all over the place. Our election process will become badly tainted & a laughingstock all over the World. Tell that to your hater @yoyoel
— Donald J. Trump (@realDonaldTrump) May 28, 2020
Additionally, the FCC has weighed in on the controversy surrounding Trump’s executive order, basically saying that it needs to focus on its basic duties, and doesn’t have the bandwidth for more responsibility.
- FCC’S STARKS: AGENCY MUST KEEP FOCUS ON ESSENTIAL WORK
- FCC’S STARKS COMMENTS ON REPORTS OF TRUMP EXECUTIVE ORDER
Though, of course, that could always change.
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Update (1150ET): In a statement that clearly established Nancy Pelosi and the Democrats as the greater of two evils for Silicon Valley tech giants and their leadership, the Democratic Speaker of the House said Twitter had not gone ‘far enough’ in fact-checking President Trump, while accusing Facebook of selling out the American people for money.
According to CNBC, Pelosi said Trump’s executive order, expected to be signed later on Thursday, is a “distraction”, but added that Twitter had “not gone far enough” in fact-checking the president, and called the current situation “outrageous”
At Facebook, she accused Zuckerberg of “only caring about making money”. “All they want is tax cuts and no regulation…there is no honor among thieves,” she reportedly said, according to Mui.
It appears the “techlash” in Washington remains alive and well.
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Update (0850ET): Fox Business has just confirmed that President Trump plans to sign an executive order to implement everything we’ve discussed below.
FOX Business Network confirms that the President Trump is considering an Executive Order regarding social media companies. The EO would examine the legal protections that social media companies enjoy. #SocialMedia
— Edward Lawrence (@EdwardLawrence) May 28, 2020
Fox reporter Edward Lawrence claims that the order will “examine the legal protections” enjoyed by these companies, suggesting that the administration will also lay out its legal rationale for regulating speech on these platforms in this way.
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Update (0840ET): Just as we expected, President Trump just confirmed that he will be rolling out his administration’s agenda for regulating speech on American social media platforms on Thursday – and will probably make a show of it, to keep the news media focused on his latest culture war, and less about the growing coronavirus death toll.
This will be a Big Day for Social Media and FAIRNESS!
— Donald J. Trump (@realDonaldTrump) May 28, 2020
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The first leaks detailing the Trump Administration’s plan to iron out left-wing bias on American social-media platforms have just arrived.
During a live on-air report, CNBC’s Ylan Mui shared what appeared to be the first details of the White House’s plan, which the president said would be released on Thursday. According to Mui, the White House plans to empower the FCC to write guidelines for American social media companies to help them determine what content should and shouldn’t be removed. The guidelines will make clear what social media companies can do while retaining the ‘liability shield’, while also warning how they might lose that protection by being too proactive.
Notably, the plan relies on the executive branch’s nearly untrammeled power over the vast federal bureaucracy: Once again, Trump plans to bypass Congress – which has long been reluctant to make any changes to the 1996 Communications Decency Act to account for the advent of social media – to accomplish what has become a critical piece of his agenda ahead of the November election. The DoJ will also be required to create a working group with state AGs, along with a list of other provisions.
“We cannot allow a handful of online platforms to handpick and censor the speech Americans read online,” an anonymous administration official told Mui. “[Social media giants] possess a dangerous power.”
There will be a review process before the rules can be implemented, and it’s possible they may never be enacted.
And as Mui pointed out, companies face newfound political uncertainty as regulating speech on these platforms becomes a “political football”.
According to CNBC, the draft text of the order mentioned two companies by name: Twitter and Facebook. Shares of both companies tumbled in pre-market trade on the news.
For what it’s worth, a report published last night claimed that the White House didn’t consult the FCC on these new guidelines.
NEW: The White House did not consult the FCC on a forthcoming executive order pertaining to social media companies, according to a person briefed on the matter.
This suggests the draft order has not gone through the normal interagency review process.
— Brian Fung (@b_fung) May 27, 2020
Though we doubt Commissioner Ajit Pai will have any serious objections to the plan.
Finally, it appears the Executive order does not quite go as far as to call for direct reversals of Section 230 protections… though handing it over to the FCC may well be the warning shot across the social media giants’ bows that they need. As Jonathan Turley noted:
The expectation is that the Trump executive order on social media will include a review of Section 230 of the Federal Communications Act for the possible elimination of protections for Twitter and other social media companies. The effort would be hard to succeed without congressional action. As a private actor, Twitter is not the subject of the First Amendment but the President and his administration are. There are also separation of powers concerns with any unilateral or constructive amendment of Section 230.
Trump in my view is right in condemning the action of Twitter. The focus should be on the company’s assault on free speech principles. Anyone who values free speech on the Internet and social media should be appalled by this action regardless of their feelings about Pres. Trump.