Trump’s proposed order on social media could harm one person in particular: Trump

The executive order that Trump signed Thursday seeks to strip liability protection in certain cases for companies like Twitter, Google and Facebook for the content on their sites, meaning they could face legal jeopardy if they allowed false and defamatory posts.

By Peter Baker and Daisuke Wakabayashi

President Donald Trump, who built his political career on the power of a flame-throwing Twitter account, has now gone to war with Twitter, angered that it would presume to fact-check his messages. But the punishment he is threatening could force social media companies to crack down even more on customers just like Trump.

The executive order that Trump signed Thursday seeks to strip liability protection in certain cases for companies like Twitter, Google and Facebook for the content on their sites, meaning they could face legal jeopardy if they allowed false and defamatory posts. Without a liability shield, they presumably would have to be more aggressive about policing messages that press the boundaries — like the president’s.

That, of course, is not the outcome Trump wants. What he wants is to have the freedom to post anything he likes without the companies applying any judgment to his messages, as Twitter did this week when it began appending “get the facts” warnings to some of his false posts on voter fraud. Furious at what he called “censorship” — even though his messages were not in fact deleted — Trump is wielding the proposed executive order like a club to compel the company to back down.

It may not work even as intended. Plenty of lawyers quickly said Thursday that he was claiming power to do something he does not have the power to do by essentially revising the interpretation of Section 230 of the Communications Decency Act, the main law passed by Congress in 1996 to lay out the rules of the road for online media. Legal experts predicted such a move would be challenged and most likely struck down by the courts.

But the logic of Trump’s order is intriguing because it attacks the very legal provision that has allowed him such latitude to publish with impunity a whole host of inflammatory, harassing and factually distorted messages that a media provider might feel compelled to take down if it were forced into the role of a publisher that faced the risk of legal liability rather than a distributor that does not.

“Ironically, Donald Trump is a big beneficiary of Section 230,” said Kate Ruane, a senior legislative counsel for the American Civil Liberties Union, which instantly objected to the proposed order. “If platforms were not immune under the law, then they would not risk the legal liability that could come with hosting Donald Trump’s lies, defamation and threats.”

Trump has long posted false and disparaging messages to his 80 million followers on Twitter, disregarding complaints about their accuracy or fairness. In recent weeks, he has repeatedly issued tweets that essentially falsely accused Joe Scarborough, the MSNBC host, of murdering a staff member in 2001 when he was a congressman. Scarborough was 800 miles away at the time, and the police found no signs of foul play. The aide’s widower asked Twitter to delete the messages, but it refused.

Trump and his allies argue that social media companies have shown bias against conservatives and need to be reined in. While they are private firms rather than the government, the president and his allies argue that they have in effect become the public square envisioned by the founders when they drafted the First Amendment and therefore should not be weighing in on one side or the other.

“If @Twitter wants to editorialize & comment on users’ posts, it should be divested of its special status under federal law (Section 230) & forced to play by same rules as all other publishers,” Sen. Josh Hawley, R-Mo., who has vowed legislation on the matter, said this week on, yes, Twitter. “Fair is fair.”

The order that Trump signed said that an online provider that weighs in on some tweets beyond certain limited conditions “should properly lose the limited liability shield” of the law “and be exposed to liability like any traditional editor and publisher that is not an online provider.”

The order asks the Federal Communications Commission to draft regulations to that effect and directs the Federal Trade Commission to consider action against providers that “restrict speech in ways that do not align with those entities’ public representations about those practices.”

On Thursday, Trump framed his goal as combating bias. “Currently, social media giants like Twitter receive an unprecedented liability shield based on the theory that they’re a neutral platform, which they’re not,” he said in the Oval Office as he signed the order.

But even some government officials said his plan was unenforceable. “This does not work,” Jessica Rosenworcel, a member of the Federal Communications Commission who was first appointed under President Barack Obama, said in a statement. “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. It’s time for those in Washington to speak up for the First Amendment. History won’t be kind to silence.”

Even some conservatives objected, warning that the president was handing control of the internet to the “administrative state” and creating a bonanza for liberal trial lawyers to go after unpopular speakers traditionally filtered out by the mainstream media — including those like Trump himself.

“Conservatives must appreciate the fact that social media has empowered countless new voices on the right and allowed them to garner millions of followers and billions of views,” said Patrick Hedger, a research fellow at the Competitive Enterprise Institute. “The net effect of social media has been overwhelmingly positive.”

The Communications Decency Act was passed during the dawn of the modern information age, intended at first to make it easier for online sites run by early pioneer companies like Prodigy and AOL to block pornography, even when it is constitutional, without running afoul of legal challenges.

By terming such sites as distributors rather than publishers, Section 230 gave them important immunity from lawsuits. Over time, the law became the guarantor of a rollicking, almost no-holds-barred internet by letting sites set rules for what is and is not allowed without being liable for everything posted by visitors, as opposed to a newspaper, which is responsible for whatever it publishes.

Since Section 230 was signed into law by President Bill Clinton, the courts have repeatedly shot down challenges to get around it, invoking a broad interpretation of immunity. In recent years, the court system has been flooded with litigants claiming that social media companies blocked them or their content.

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As a result, Trump may face an uphill road with his order. Daphne Keller, who teaches at Stanford Law School and has written extensively on internet law and regulation, said the order appeared to be “95% political rhetoric and theater that doesn’t have legal effect and is inconsistent with what the courts have said.”

However, Keller, who worked as an associate general counsel at Google for 10 years, said that even if the order did not carry legal weight, it may still be challenged because it was potentially an abuse of power that could violate the First Amendment rights of the companies.

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Eric Goldman, a professor at Santa Clara University Law School and co-director of the High Tech Law Institute there, said that the order “doesn’t stand a chance in court” but that it could do some damage until a legal challenge reached the judicial system. “Section 230 is a magnet for controversy, and this order pours fuel on the fire,” he said.

While the courts have sided with the internet companies, Congress is a different matter. Both Republicans and Democrats have taken issue with the protections afforded to social media companies, even though they disagree on why.

Republicans have accused the companies of censoring conservative voices and violating the spirit of the law that the internet should be a forum for a diversity of political discourse. Democrats have argued that the companies have not done enough to remove problematic content or police harassment.

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Jeff Kosseff, a cybersecurity law professor at the United States Naval Academy and the author of a book about the law, “The Twenty-Six Words That Created the Internet,” said he believed that Section 230 would be repealed by Congress in the next few years. He believes that the internet of 1996, when the law was written to protect startups, is different now and that many of the tech firms protected under the statute are among the most valuable companies in the world.

Without Section 230, courts would be forced to apply the protections of the First Amendment to the modern internet. “We haven’t had a test of that yet,” Kosseff said, “because there was always Section 230.”

In the meantime, Trump’s proposed order may still have an impact. “I think what the order is trying to do is say a company like Twitter holds itself out to be a neutral platform, and when it is biased against conservatives, it is acting deceptively,” said Jeffrey Westling, a technology and innovation policy fellow at the R Street Institute, a public policy research organization.

Westling said the legal theory would probably be difficult to pursue. “The issue I have and I think a lot of people are starting to realize is, the executive order doesn’t need to be legally enforceable to still be a threat to these companies,” he said. “The companies will likely win any challenge, but no one wants to go through litigation. It becomes a cost-benefit analysis of, ‘Is it worth it to put a fact check the next time the president puts a false tweet out there?’”