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The executive order would direct federal agencies and state attorneys general to investigate social media companies for alleged bias in their content moderation policies.
President Trump issued an executive order on Thursday that could allow federal and state regulators to fine or otherwise punish social media companies like Twitter, Facebook, and Google for the ways they regulate content on their sites.
The order—which critics condemned as an assault on free speech—aims to make changes to Section 230, a long-established law that shields tech companies from liability for the content on their platforms, as well as their moderation policies. It instructs federal agencies like the Federal Trade Commission and the Federal Communications Commission to step up their regulation of tech platforms for perceived bias, and also asks the attorney general to work with states to investigate allegations of bias on social media sites and “enforce their own [state] laws against such deceptive business practices.”
The order was swiftly denounced by some Democratic state attorneys general, who said they certainly wouldn’t help enforce it. They also alluded to the fact that Trump moved forward with his order after Twitter this week for the first time put a “fact checking” label on two of the president’s erroneous tweets about mail-in ballots.
"When it comes to the Internet, smart regulation and innovation can go hand-in-hand,” a representative of California Attorney General Xavier Becerra told Route Fifty via email. “‘Smart' does not mean 'petulant'. The right to free speech lives on the Internet. But there is no right to lie, defraud or commit crimes on the Internet."
Maryland’s attorney general had a similar response. “Trump doesn't have the right to stop Twitter, or any American, from calling out his lies,” said a representative for Attorney General Brian Frosh. “We will fight to protect the [First] Amendment from his attack.”
Republican Texas AG Ken Paxton, however, rejected Twitter’s move toward monitoring posts, saying Trump’s executive order was appropriate. “There is no doubt they have had special treatment different than other companies,” Paxton said on a local radio show, adding that Congress should take further steps. “If they ban speech, they need to be accountable for how they do it.”
There has also been pushback from some current and former members of the FCC. Robert McDowell, a former Republican FCC commissioner, said it was “unconstitutional.” Jessica Rosenworcel, a current Democratic FCC commissioner, said in a statement on Thursday that the president was responding to his concerns with Twitter inappropriately. “Social media can be frustrating,” she said. “But an executive order that would turn the Federal Communications Commission into the president’s speech police is not the answer.”
FCC Chairman Ajit Pai indicated the commission will “carefully review any petition for rulemaking,” while noting the “debate is an important one.”
Trump has long complained about what he perceives to be bias against conservative speech on social media companies, which has been echoed by some Republicans in Congress. But the question of whether social media companies need to do more to moderate content—or even remove it from their platforms—doesn’t fit into clear partisan camps. During the Democratic primary, for example, several candidates argued that Facebook was allowing Trump to lie to users, arguing the company needed to step in.
But Facebook has resisted calls for the company to intervene in political content. This week, as Twitter fact-checked the president, Facebook CEO Mark Zuckerberg said he didn’t think that was the role of a social network. “I don’t think that Facebook or internet platforms in general should be arbiters of truth. Political speech is one of the most sensitive parts in a democracy, and people should be able to see what politicians say,” he said on CNBC.
But Twitter continued to stake out a different position early Friday morning, as Trump reacted to the protests and fires in Minneapolis over the death of George Floyd in police custody on Monday night, writing that “when the looting starts, the shooting starts.” Twitter left the comment up, but affixed a label that read: “This Tweet violated the Twitter Rules about glorifying violence. However, Twitter has determined that it may be in the public’s interest for the Tweet to remain accessible.”
The company affixed the same label when the official White House account retweeted Trump’s personal account. The White House then tweeted: “The President did not glorify violence. He clearly condemned it,” adding that Twitter’s “biased, bad-faith ‘fact-checkers’ have made it clear: Twitter is a publisher, not a platform.”
The labels used by Twitter on Friday were in line with how it dealt with the president’s posts about mail-in ballots.
On Tuesday morning, Trump tweeted in response to California Gov. Gavin Newsom signing an executive order expanding the availability of mail-in ballots. “There is NO WAY (ZERO!) that Mail-In Ballots will be anything less than substantially fraudulent,” Trump wrote. “Mail boxes will be robbed, ballots will be forged & even illegally printed out & fraudulently signed.”
Beneath his tweet, Twitter put a link that said “get the facts about mail-in ballots,” which redirected users to a page that said “these claims are unsubstantiated … fact-checkers say there is no evidence that mail-in ballots are linked to voter fraud.”
Twitter also corrected Trump’s followup tweet in which he claimed California would send mail-in ballots to “anyone living in the state, no matter who they are or how they got there."
“In fact, only registered voters will receive ballots,” Twitter corrected, before adding that five states—California, Oregon, Hawaii, Utah, and Washington—already have elections held entirely by mail. Twitter company accounts and CEO Jack Dorsey later clarified that the fact checks were added to adhere to the site’s civic integrity policy because Trump’s tweets might have “misled people into thinking they don’t need to register to get a ballot.”
Twitter’s actions prompted a tweet tirade from the president, in which he wrote the social media giant “is now interfering in the 2020 Presidential Election” and trying to make the “stupid” case that mail-in voting is not subject to fraud. “Twitter is completely stifling FREE SPEECH, and I, as President, will not allow it to happen,” he wrote.
The executive order is likely to face a court challenge from the tech sector—and legal scholars from both sides of the aisle say White House lawyers will face an uphill battle trying to get the order upheld. In a separate case, a federal appeals court this week ruled that private websites are not public spaces and do not have First Amendment obligations.
Emma Coleman is the assistant editor for Route Fifty.
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