Policy Summary: The Communications and Decency Act (CDA) was passed in 1996 and provides that an “interactive computer service” is immune from civil liability if they publish information from third – party users.
On May 28, 2020 President Donald J. Trump signed an executive order titled “Preventing Online Censorship.” The executive order was prompted by Twitter’s decision earlier in the week to place labels on tweets emanating from President Trump’s verified Twitter account. On a May 26, 2020 tweet from the President about perceived mail – in ballot fraud, Twitter for the first time added a link at the bottom of the tweet that said “Get the facts about mail – in ballots” which was preceded by an exclamation mark in an oval. That signaled that there were other facts to the issue that were not mentioned in the President’s tweet.
In Section 2, subsection (b) of the executive order, the President directs all executive departments and agencies to examine whether Section 230 of the Communications Decency Act is properly applied in a manner to ensure that a social media platform cannot enjoy immunity from civil liability while engaging in acts of censorship of a third – party user’s views. Additionally, President Trump ordered further rule – making to clarify the instances of when a social media platform is engaging in acts of censorship. LEARN MORE
Policy Analysis: Twitter’s announcement that they would append labels to tweets from President Donald J. Trump’s Twitter account is unique in that it is believed to be the first time that Twitter has sought a way to combat the numerous falsehoods that have become a feature of the President’s tweets. Brad Parscale, President Trump’s campaign manager, called the move by Twitter “biased” and a way to “obstruct and interfere with President Trump getting his message through to voters.”
But the executive order and the statement from Mr. Pascale have misconstrued the situation. There is no obstruction and interference or an issue with free speech because Twitter has in no way placed limits on what President Trump wants to write or tweet out. The President still has control over the message he chooses to type out and put up on his Twitter feed. Twitter has not altered his tweets in any way to change the message contained in his tweets. What they have merely done is added a hyperlink on the bottom of the tweet, separate from what the President has typed out, that encourages readers to “get the facts” and additional info. Readers can still read the President’s tweets in their original form intended by the President while also having the option of further researching the issue and coming to their own conclusion after comparing other available evidence. President Trump has a long history of spewing out outright falsehoods and debunked conspiracy theories and it appears that Twitter has become fed up with the political vitriol that have roots in President Trump’s tweets. But this executive order will do nothing to help create an environment where free speech can flourish and all viewpoints are welcome. By directing his executive order at Section 230 of the DCA and the issue of civil liability the President and his team are avoiding the issue of whether their tweets have merit and may simply be angry that their tweets can be contradicted with opposing and established facts. If the President’s tweets are not being altered or blocked from view in any meaningful way then there is no free speech violation.
Finally, the President’s executive order is another incident in a trend where President Trump falsely believes that he has the power to amend the law. The President of the United States has no power to change existing law. Only Congress has the power to do that. The President only has the power to execute laws that have already been passed and can only direct federal agencies to administer the law as it currently exists. His executive order cannot override the requirements of Section 230 of the DCA. Two Internet legal scholars – Eugene Volokh at UCLA and Eric Goldman at Santa Clara University – state that Congress has already rejected the model that websites are civilly liable for a third – party user’s speech that they publish. Since Congress has already decided this issue, President Trump cannot unilaterally change it or have it be modified in a significant way by federal agencies.
This situation is the direct result of President Trump’s Twitter behavior. Had the President been more thoughtful about his tweets than Twitter likely would not have had to take the action that they did this week. But the President’s actions in response to Twitter’s move illustrates that his views on free speech and presidential power are not rooted in the established concepts of the First Amendment and what the White House can do to affect meaningful change. LEARN MORE, LEARN MORE
- First Amendment Coalition – non – profit group webpage on First Amendment free speech issues.
- Electronic Frontier Foundation – non – profit group infopage on Section 230 of the Communications Decency Act of 1996.
This brief was compiled by Rod Maggay. If you have comments or want to add the name of your organization to this brief, please contact Rod@USResistnews.org