Reason Roundup

Trump's Executive Order on Twitter Is a Total Mess

Plus: the weird new battle lines on warrantless surveillance, more CDC incompetence, Minneapolis on fire, and more…

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zumaamericastwentyseven535181 | John Nacion/ZUMA Press/Newscom
(John Nacion/ZUMA Press/Newscom)

Disrespected by Twitter, President Donald Trump is throwing a tantrum in the form of an executive order that declares Twitter and Facebook are the "functional equivalent of a traditional public forum" and should "not infringe on protected speech." The president seems to have bypassed the typical interagency review process in issuing his new rule. This means the insanely overreaching order (read the leaked draft here) wasn't written with an eye toward conforming to federal law or constitutional protections of speech and commerce. And make no mistake: the draft order, when it manages to be coherent, is insanely unconstitutional.

But maybe the order having teeth isn't the point here. Trump's mandate might not hold up in court, but just by issuing it, Trump sends a not-so-subtle threat to Twitter, Facebook, and other internet companies. Remember, the apparent impetus for this order was Twitter posting a fact check after one of Trump's tweets.

Should social media companies be getting into the fact-checking game? It's a bad idea, if you ask me. But it's a perfectly legal thing for them to do.

The standard Republican talking point on this right now is that affixing fact-checking links to some tweets makes Twitter a "publisher" instead of a "platform" or "forum." It might make for an interesting semantic distinction, but the legally significant issue is whether Twitter is the speaker or creator of Donald Trump's tweets. If not, it is not legally liable for them. (The same goes for every other user of Twitter, too.)

If you're thinking, "But, but, what about when Twitter creates a fact-check link and presents it after a user's posts?" Courts have routinely ruled that a digital company's decisions about how to present content (or what content to present at all) do not transform it into the speaker of user content.

But back to Trump's new order: It's an Orwellian document, defining federal government regulation of Americans' speech as "free speech" and private questioning of government authority as "censorship." In Trump's formulation, private companies can censor the most powerful person in the country but not the other way around.

Interestingly, after years of downplaying the idea that foreign actors used social media in an attempt to influence the 2016 election, Trump now opportunistically claims that the U.S. government must have power over these platforms to stop the scourge of "disinformation from foreign governments."

But his biggest complaint is about alleged ideological bias by private companies. Despite previously rallying around the rights of conservative businesses to choose who they do business with and decline to display liberal messages (think florists and bakers), Trump now says that private businesses should have to be totally content-neutral conduits of whatever messages that customers want to broadcast.

To justify his position that the feds can compel companies to display messages from private citizens and government officials alike, Trump turns to a mangled conception of the federal law known as Section 230. This is the 1990s statute stipulating that online platforms and publishers are not to be treated as the speaker of user-generated content (i.e., if I defame someone on Facebook, Facebook isn't on the hook for defamation).

The order erroneously suggests that Section 230 only applies if online companies moderate content in ways that are explicitly laid out in their terms of service, though nothing in Section 230 comes close to saying this.

It complains that Twitter has been "restricting online content" for reasons other than those laid out as permissible reasons in Section 230(c)(2). This is the part of the statute saying companies don't become liable for all user content by virtue of moderating content that is "obscene, lewd, lascivious, filthy, excessively violent, harassing or otherwise objectionable."

But "otherwise objectionable" is a completely discretionary standard and can encompass just about anything.

The order relies heavily on conservatives' victimhood conspiracy du jour: that social media companies are colluding to suppress conservative voices. It's an objectively untrue viewpoint, as countless booted and suspended liberal, libertarian, and apolitical accounts can tell you. But even if it were true that Twitter or Facebook only takes action against conservatives—or if we take the more believable assertion that current content moderation policies tend to hit some political viewpoints harder than others—it would still not fall outside the bounds of Section 230(c)(2) moderation, which requires only that the moderator find some speech to be "objectionable."

Somehow, out of Trump's several paragraphs of paraphrasing Section 230 with random erroneous asides, federal officials are supposed to intuit a new paradigm and "apply section 230(c) according to the interpretation set out in this section."

The document also instructs the Federal Communications Commission (FCC) to define concepts that Trump just made up for this order and then propose ways to tell if companies are running afoul of them. Trump wants the FCC to determine the conditions under which content moderation will be considered "deceptive, pretextual, or inconsistent with a provider's terms of service"—but then what? Nothing in Section 230 says a company can't moderate in ways "inconsistent with" their terms of service. And it's laughable to think that bureaucrats will be able to tell whether thousands of individual content moderators are making decisions based on the right reasons or on secretly "deceptive" grounds.

The FCC is also tasked with defining this bit of Trumpian gobbledygook: the conditions under which content moderation will be considered "the result of inadequate notice, the product of unreasoned explanation, or having been undertaking without a meaningful opportunity to be heard."

https://twitter.com/jess_miers/status/1265816039964762112

One of the most concrete parts of the executive order, and perhaps the only feasible part, is a bit saying that all federal agencies must review and submit (within 30 days) a report on the amount of money they spend on social media advertising. It comes in a section titled "Prohibition on Spending Federal Taxpayer Dollars on Advertising with Online Platforms That Violate Free Speech Principles."

Insofar as this order helps keep stupid government propaganda campaigns off social media and reduces what the public pays for those campaigns, great! Alas, Trump doesn't really have any clue what the criteria for preventing these ads might be and didn't bother finding out whether he has the statutory authority to require this before writing the order. It actually asks the heads of each executive department and agency to independently review "the viewpoint-based speech restrictions imposed by each online platform" and then tell Trump "the statutory authorities available to restrict advertising dollars to online platforms."

The second-to-last part of the order is another bit that sounds vaguely weighty but is actually just a bunch of big words sort of strung together in the way that might fool random Trump fans into thinking he's taking action. He declares that Facebook and Twitter are "the functional equivalent of a traditional public forum"—which would essentially mean that they are the "functional equivalent" of government property.

But of course, Trump has no authority to simply seize these private companies via executive order. And even if he could just declare that Twitter and Facebook were the digital equivalent of the National Mall, this would mean that government actors would face serious hurdles to restricting speech on them. Bottom line: Unless government officials are going to completely take over Twitter and Facebook content moderation, invoking public forums here is just bluster.

Ultimately, the order's lack of standard review very much shows.

It seems the White House apparently didn't consult with the Federal Communications Commission about the order, which would mean it did not go through the standard interagency review process.

"Worth remembering that with prior WH attempts to draft an executive order targeting social media companies, the FCC and FTC (which are led by Republican chairmen) privately pushed back on being deputized to police political speech on social platforms," noted CNN tech reporter Brian Fung on Twitter.

"Much of the order could quickly get bogged down in a thicket of legal and constitutional questions," Fung added. "Just for example, the FTC reports to Congress, not the WH."

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