President Donald Trump signed an executive order on May 28, 2020 aimed at limiting the broad legal protections under section 230 of the Communications Decency Act. Section 230 of the Communications Decency Act protects internet companies, particularly social media companies, from being sued over the content that is posted or shared on their platforms and allows the internet companies to moderate the content based on their company policies so long as the decisions are made “in good faith.” Courts have repeatedly upheld the law in favor of internet companies. The executive order seeks to narrow the extensive protections of section 230. The executive order asserts that social media platforms are more than mere sites where people post content, but function more like a public square.
Essentially, the President’s reasoning for the executive order is that because the social media companies moderate the content on their sites, they cease functioning as passive bulletin boards and should be viewed as content creators. The executive order states: “Twitter, Facebook, Instagram, and YouTube wield immense, if not unprecedented, power to shape the interpretation of public events; to censor, delete, or disappear information; and to control what people see or do not see.” Particularly, the executive order charges that online platforms are engaging in selective censorship and flagging or deleting content it deems inappropriate. The cumulative effect of this, the executive order argues, disfavors certain viewpoints. Its likely that the President means conservative viewpoints.
The executive order directs the Federal Communications Commission to begin a process to clarify situations when social media companies should enjoy the protections of section 230, potentially opening up scenarios where an online platform might be sued. In addition, the executive order instructs the Justice Department to consult with state attorney generals regarding the enforcement of state statutes that prohibit websites, social media platforms, or even general search engines from engaging in unfair, deceptive acts or practices. Unfair or deceptive acts or practice is defined to include “practices by entities covered by section 230 that restrict speech in ways that do not align with those entities’ public representations about those practices.” Also, government agencies are to review the amount of federal dollars it spends on online platforms under the executive order. Finally, the executive order tells the Federal Trade Commission that the White House has received over 16,000 complaints of online platforms censoring or taking other action against users based on the user’s political viewpoints. The order directs the Federal Trade Commission to take action against internet companies “to prohibit unfair or deceptive acts or practices in or affecting commerce.”
The actual effect of the executive order is unknown. Internet companies are largely private companies, and the executive order would likely infringe on their First Amendment rights. Ironically, if internet companies are stripped of the protections from liability from the content of their users, they are more likely to censor the posts on their sites than not.