May 28, 2020
Today, the White House issued an executive order that purports to prevent online censorship, but is actually an unconstitutional effort to pressure online platforms into censoring free expression.
The order directs the Commerce Department to petition the Federal Communications Commission (FCC) to propose regulations defining the proper scope of liability protection for online platforms under Section 230 of the Communications Decency Act. That law provides that platforms cannot be held liable for user-generated content and also provides a safe harbor for companies to choose to moderate content and make decisions about what content to permit on their sites. The executive order also directs the Federal Trade Commission (FTC) to bring enforcement actions for unfair or deceptive trade practices against platforms whenever they make content moderation decisions that do not align with the companies’ public representations, and specifically calls for the FTC to examine any complaints filed against Twitter and to release a public report on those findings.
New America’s Open Technology Institute condemns the draft executive order on several grounds, including:
- The order is unconstitutional on both separation of powers and First Amendment grounds. Section 230 is a statute and the President cannot amend a statute with an executive order. Only the courts or Congress can change the legal interpretation of Section 230. In addition, the First Amendment strictly limits the extent to which the government can direct tech companies regarding what content to allow on their platforms. Even without setting specific rules regarding what content is permissible, government actions that pressure companies to block certain content or allow other content can still run afoul of the First Amendment.
- The President is attempting to dictate the actions of two independent agencies, the FCC and the FTC.
- The executive order appears to be an attempt to pressure platforms into moderating content in the ways that the administration wants, and in ways that threaten free speech by others.
- Section 230 plays an important role in protecting free expression by giving platforms the ability to moderate speech without liability for their decisions. While platforms should be transparent about their practices and the public should hold them accountable for their decisions, the First Amendment does not permit the government to dictate—even indirectly—how these decisions are made.
- The order would demand increased scrutiny of certain users and mandate government monitoring of their online activity. This is government surveillance and would violate the right to privacy.
- The order threatens to cease federal agency spending on advertising and marketing paid to online platforms during a time when agencies such as the CDC and the Census Bureau urgently need to get the word out about public health updates regarding COVID-19 and participation in the Census.
The following quote can be attributed to Sharon Bradford Franklin, policy director at New America’s Open Technology Institute:
“This executive order amounts to an unconstitutional effort to intimidate online platforms into censoring free expression and promoting only the administration’s views. Section 230 is a law enacted by Congress, and the president cannot amend a statute by issuing an executive order.
“While the public must hold tech companies accountable for their decisions regarding what content to allow on their platforms, the government cannot dictate how companies make these decisions. The order outlines a series of tactics designed to impose the weight of government authority to direct what content may appear online. Such a campaign to control what speech may appear online violates the First Amendment and seriously undermines the free expression interests that it protects.
“When platforms actually try to do the right thing and counter voting-related misinformation, we should support these efforts rather than threatening to punish them.”