Upset with Twitter
’s decision to attach a fact-checking notice to his posts, President Donald Trump issued an Executive Order yesterday threatening the legal shield benefiting social media giants like Facebook and Twitter. While the Order has little chance of limiting these companies’ First Amendment rights, it adds to the growing chorus to reverse the legal regime established in the 1990s that has served as a critical underpinning of the Internet.
The White House positioned the Order as a safeguard of free speech against big-tech censors: “we cannot allow a limited number of online platforms to hand pick the speech that Americans may access and convey on the internet.”
Despite this wording, it seeks to regulate the free speech rights it claims to uphold by limiting the discretion over content employed by social media companies. “Twitter now selectively decides to place a warning label on certain tweets in a manner that clearly reflects political bias,” the Order complained.
Since the First Amendment prohibits only government censorship, the Order has little chance of curtailing Twitter’s constitutional rights. “Under the law of the First Amendment, the President has things exactly backward,” explained Len Niehoff, a professor at the University of Michigan Law School. “The First Amendment protects private parties from actions by the government that limit their free speech. When Twitter commented on the President’s tweets, it engaged in conduct that the Constitution protects. In contrast, when the President retaliated against that speech by issuing an executive order intended to punish Twitter, he engaged in conduct that the Constitution protects against.”
Though Twitter was the immediate target of Trump’s Order, the declaration adds to the growing chorus to change the critical law that has long provided a legal shield to Internet companies: Section 230 of the 1996 Communications Decency Act.
Enacted to protect the nascent Internet industry, Section 230 shielded Internet platforms from wrongdoing committed by those acting through their sites. The law arose from a pair of court rulings which made web platforms liable for their content if they oversaw or moderated any of the content appearing on their sites. Companies with no oversight, however, were given a free pass, incentivizing them to abandon any sort of supervision over their end users. Reacting to these rulings, Congress passed Section 230 so that Internet platforms could moderate user content without the fear of legal liability.
“It’s difficult to overstate how critical this law has been to the success of the Internet sector,” Michael Beckerman, the head of the Internet Association, a trade group representing online giants like Google
, Facebook, and Amazon
, wrote in an op-ed last year. Beckerman’s statement reflects the conventional wisdom surrounding Section 230 by both supporters and critics of the law.
Trump’s Order is just the latest salvo against Section 230, which has faced scrutiny for years. In fact, while the timing of the Order links it to the president’s recent spat with Twitter, reports emerged last summer of a similar undertaking by the White House.
Many of these complaints arise from the drawbacks associated with the immunity granted to Internet platforms by the 1996 law. The current legal landscape forces victims of libel or the invasion of privacy or cyber bullying to seek legal recourse from end users but not the platforms where these users operate. The fact that chat rooms, media outlets, video-sharing platforms, and social media entities don’t have to answer for users’ comments on their sites has led to complaints that these platforms have been lax in governing troubling content.
After years of growing urgency, Congress finally made a minor adjustment to the law two years ago by making it easier to pierce the immunity granted by Section 230 against web sites involved with sex trafficking and prostitution.
Though the 2018 update left the rest of the provision untouched, Frank Pallone, Chairman of the House Committee on Energy and Commerce called for updating Section 230 to “tackle the symptoms of poor content moderation online while also protecting free speech” during congressional hearings last year. A bipartisan group of senators has also proposed an amendment to Section 230 which would allow platforms to “‘earn’ their liability protection” if they make a greater effort to restrict child pornography.
Even Trump’s presumptive opponent in the coming presidential election spoke out against the provision in January in relation to Facebook. Citing privacy concerns and the propagation of “falsehoods,” Joe Biden called for the protections provided by Section 230 to be “revoked” for the social media giant.
Frustrated by a legal regime that has left the onus on copyright holders to identify pirated material, large copyright holders have also targeted Section 230. In 2018, the Motion Picture Association of America urged the government to reconsider the long-established foundations “exacerbating a variety of internet ills.”
These groups have joined forces with organizations combating child sex-trafficking that takes place over the Internet.
But Twitter, Facebook, and Google, which owns YouTube, aren’t alone. In a replay of the battles over net neutrality during the Obama administration, these online behemoths have struck alliances with free speech groups who fear the potential censorship to online discourse proposed by Trump’s Executive Order. Soon after the White House released the Order, the Electronic Frontier Foundation, a leading defender of digital rights, called it “an assault on free expression online.”
While the brouhaha surrounding Trump’s Order will soon dissipate in the next news cycle, the battle to fundamentally alter the Internet is growing more intense by the day.