A lot of the president’s order consists of complaints about social media corporations and their efforts to flag or take away content material deeme
A lot of the president’s order consists of complaints about social media corporations and their efforts to flag or take away content material deemed inappropriate. Right here is a proof of the authorized points surrounding the parts of the order that may — or would possibly — do one thing.
What protects social media corporations?
It says intermediary website operators — a category ranging from social media giants like Twitter, Facebook and YouTube to blogs that let readers post comments — will not be treated as the publisher or the speaker for making others’ posts available.
A related provision also protects the sites from lawsuits accusing them of wrongfully taking down content. It gives them immunity for “good faith” decisions to remove or restrict posts they deem “obscene, lewd, lascivious, filthy, excessively violent, harassing or otherwise objectionable, whether or not such material is constitutionally protected.”
How does the executive order target this shield?
By putting forward a vision for an exception to websites’ legal immunity.
The order argues that if a site restricts access to others’ content in bad faith and goes beyond removing the types of objectionable content detailed in the law, it should be deemed a publisher rather than a neutral platform — thus losing its legal immunity from lawsuits.
If this vision were the law, it would mean that social media companies could be sued for defamatory content over what other people post on their platforms. For example, because Mr. Trump has used Twitter to falsely insinuate that the MSNBC host Joe Scarborough murdered a congressional aide in 2001, Mr. Scarborough could in theory accuse Twitter of libel — if he could also make the case that Twitter met Mr. Trump’s criteria for being an editor.
Even under the executive order’s vision of the law, such lawsuits might fail: A court would first have to decide that the social media firm had sufficiently engaged in enough editorial conduct to lose its immunity. But the order could discourage such companies from taking an active role in curating the content on their platforms — and raise the risk and cost of doing business.
How does the order try to impose this understanding?
By setting in motion a request that the Federal Communications Commission issue a rule to “clarify” whether the immunity law implicitly contains the exception Mr. Trump wants.
Specifically, the order directs the Commerce Department to ask the F.C.C. to develop regulations addressing whether social media firms lose Section 230 immunity if they restrict access to posted material in bad faith. That could include actions that are “deceptive, pretextual or inconsistent with a provider’s terms of service,” the order said.
The F.C.C. is an independent agency outside Mr. Trump’s control. Its five-member panel has three Republican and two Democratic appointees.
Would such a rule make any legal difference?
Probably not, legal experts said.
First, although the F.C.C. oversees parts of communications law where Congress envisioned its regulation, like rules for telephone companies, the order does not explain why the agency would have any role in authoritatively interpreting Section 230. Courts, not the F.C.C., handle lawsuits.
“This is just noise,” she said, adding: “It’s not a hard question. It’s not a tossup. It’s obvious that the F.C.C. doesn’t have jurisdiction.”
Finally, agency regulations cannot override a statute enacted by Congress. On its face, the law gives websites broad leeway to restrict or take down posts they consider bad, including a catchall category of posts they consider “otherwise objectionable.”
Still, the order could kick-start a policy debate and Congress can change the statute. The order also directs Attorney General William P. Barr to develop draft legislation for Congress to consider that would promote the policy goal of curtailing the legal protections that Section 230 gives powerful technology companies.
What does Trump want to count as inappropriate editing?
The executive order does not spell this out in detail.
Given the order’s timing and context, the most obvious notion is that Mr. Trump is trying to stop Twitter from flagging his tweets as inaccurate. The order complains that he was singled out, and Mr. Trump told reporters that Twitter’s fact-check labels were “political activism.”
But it was not clear how the details of the change envisioned by the executive order clearly map onto that complaint. Twitter has not removed or restricted Mr. Trump’s messages.
But the administration has reportedly long toyed with the idea of targeting social media companies, and an earlier draft of the executive order, which did not contain some of the language about Twitter’s fact-checking labels, suggested a version had been drafted some time ago. Elements, including references to complaints that companies suppress content or users based on political views, suggested another target: so-called shadow banning.
Some conservatives have voiced a theory that Twitter suppresses their posts for political reasons by hiding them from other users, even though their writers can still see them — a purported practice that would more closely fit the notion of deceptively restricting access to posted content. The company has denied that it does so, however Mr. Trump endorsed the accusation in July 2018 and vowed to look into it.
What else would the chief order do?
It opened a number of critiques that might end in some form of later motion.
Mr. Trump required the pinnacle of every government division and company to provide a report on how a lot promoting cash it spent on on-line platforms. The Justice Division is then to overview whether or not such platforms impose “viewpoint-based speech restrictions” to evaluate whether or not any are “problematic” locations for presidency speech — an implicit menace to ban taxpayer-funded advertising and marketing on them.
The president additionally put in movement two critiques that ponder eventual motion to ban social media platforms from proscribing entry to person posts in methods the expertise corporations don’t disclose. He requested the Federal Commerce Fee to look at that situation, and he advised the Justice Division to convene a working group with state attorneys common on whether or not they might use state legal guidelines to handle it.