US President Donald Trump is planning to issue an executive order to restrict social media companies from taking down posts on their platforms, the Washington Post reported. Additionally, the order would limit US federal agencies from spending money on advertising on “online platforms that violate free speech principles”. The move comes after Trump lashed out at Twitter for adding a fact-check label to two misleading tweets he posted on mail-in voting leading to election fraud. Trump is reportedly planning on signing this executive order today, and the New York Times said that it is “almost certain” to be challenged in court.

A draft of the executive order, titled “Preventing Online Censorship”, was released by Kate Klonick, assistant professor at St. John’s University of Law.

David Kaye, the UN’s Special Rapporteur on Promotion and Protection of the Right to Freedom of Opinion and Expression, said that the order was an intimidation tactic rather than a serious policy measure to advance free speech rights. “Trump wants to draw everyone into what looks like a policy debate about the scope of platform immunity,” he said. “But it’s not that! it’s a ploy for him to dominate and eviscerate public oversight of his lies.”

Increasing the civil liability for social media companies

The draft executive order (accessible on Klonick’s website here) represents a significant attack on safe harbour that social media companies enjoy as intermediaries under Section 230 of the Communications Decency Act. The order has a peculiar interpretation of subsection (c)(2) of the Section, which says that:

No provider or user of an interactive computer service shall be held liable on account of –
(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or
(B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).

[emphasis ours]

Trump is essentially extrapolating the exemption from civil liability by saying that if social media companies are making changes (such as deleting posts or adding misinformation labels) that are not in good faith, or in ways “inconsistent with an online platform’s terms of service”, the platform would lose its intermediary liability protections. That would, in turn, restrict social media platforms’ ability to scrutinise the president’s speech. The draft EO instructs the Federal Communications Commission to introduce regulations to clarify the scope of intermediary liability protections, and thereby let social media companies be held liable if they act inconsistently to their terms of service, or don’t provide adequate notice or “the opportunity to be heard”. The Commerce Secretary will have to file a petition with the FCC within 30 days of the order’s signing to this end via the National Telecommunications and Information Administration.

Social media sites are tantamount to a ‘public square’, says Trump

The draft executive order essentially puts forward the argument that since most people use social media to stay informed, it is the “functional equivalent of a traditional public forum”, and so speech should enjoy significantly more protections there. Trump said that over 16,000 people complained through the White House Tech Bias Reporting Tool that their posts were removed or accounts suspended for their political views. The EO orders the White House to continue receiving such complaints, and forward them to the Federal Trade Commission, which “shall consider taking action” based on those reports. The FTC has been instructed to draft a report based on these complaints.

The draft order also instructs the US Attorney General Bill Barr to create a working group “regarding the potential enforcement of State statutes that prohibit online platforms from engaging in unfair and deceptive acts and practices”. This group would look into social media companies’ tracking of users, including “monitoring users based on their activity off the platform”. The order also applies to search engines.