Can Trump Rewrite the Law to Go After Twitter By Decree?

U.S. President Donald Trump holds up a front page of the New York Post as he speaks to reporters while discussing an executive order on social media companies in the Oval Office of the White House in Washington, U.S., May 28, 2020. REUTERS/Jonathan Ernst
May 31, 2020 Topic: Politics Region: Americas Blog Brand: The Reboot Tags: Donald TrumpSocial MediaTwitterMedia BiasCensorship

Can Trump Rewrite the Law to Go After Twitter By Decree?

Like Obama before him, President Trump may have a pen, but he cannot rewrite statutes at will.

President Trump has escalated his war of words with America’s leading technology firms. After threatening to “close down” social media platforms, he announced that he would issue an executive order concerning Section 230 of the Communications Decency Act, a bedrock intermediary liability protection for internet platforms. However, a draft of the forthcoming executive order seems to slyly misunderstand Section 230, reading contingency into its protections. Let’s take a look at the statute and the relevant sections of the proposed executive order to see how its interpretation errs.

(c) Protection for “Good Samaritan” blocking and screening of offensive material

(1) Treatment of publisher or speaker

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

(2) Civil liability

No provider or user of an interactive computer service shall be held liable on account of—

  1. 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

  1. 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).

The statute contains two parts, (c)(1) and (c)(2). Subsection (c)(1) prevents providers of an “interactive computer service,” be they Twitter, or a blog with a comments sections, from being treated as the publisher of their users’ speech. 230 (c)(2) separately addresses providers’ civil liability for actions taken to moderate or remove content.

The executive order obfuscates this distinction, presenting (c)(1) as contingent on (c)(2). The EO contends that “subsection (c)(2) qualifies that principle when the provider edits content provided by others.” This is simply incorrect. Subsection (c)(2) protects platforms from a different source of liability entirely. While the first subsection stops platforms from being treated as the publishers of user speech, (c)(2) prevent platforms from being sued for filtering or removal. Its protections are entirely separate from those of (c)(1); dozens of lawsuits have attempted to treat platforms as the publishers of user speech, none have first asked if platforms’ moderation is unbiased or conducted in good faith. Even if a provider’s moderation were found to breach the statute’s “good faith” element, it would merely render them liable for their moderation of the content in question, it wouldn’t make them a publisher writ large.

The executive order makes its misunderstanding even more explicit as it orders the various organs of the federal government to similarly misinterpret Section 230.

When an interactive computer service provider removes or restricts access to content and its actions do not meet the criteria of subparagraph (c)(2)(A), it is engaged in editorial conduct. By making itself an editor of content outside the protections of subparagraph (c)(2)(A), such a provider forfeits any protection from being deemed a “publisher or speaker” under subsection 230(c)(1), which properly applies only to a provider that merely provides a platform for content supplied by others. It is the policy of the United Sates that all departments and agencies should apply section 230(c) according to the interpretation set out in this section.

The order goes on to direct the National Telecommunications and Information Administration to petition the FCC, technically an independent agency, to promulgate regulations determining what sort of moderation breaches the good faith aspect of (c)(2), and, according to the administration’s erroneous reading of the statute, triggers the forfeiture of (c)(1) protections against being treated as a publisher.

Clearly, none of this is actually in Section 230. Far from expecting websites to “merely provide a platform,” (c)(2)(A) explicitly empowers them to remove anything they find “otherwise objectionable.” Our president seems to have decided that Section 230(c)(1) only “properly applies” to social media platforms that refrain from responding to his outlandish claims. Republicans might want to amend Section 230 so that it only applies to conduit‐​like services, however, any attempt to do so would face stiff opposition from democrats who want platforms to moderate more strictly. Like Obama before him, President Trump may have a pen, but he cannot rewrite statutes at will. As drafted, his order’s reasoning is at odds with congressional intent, a quarter century of judicial interpretation, and any reasonable reading of the statute’s plain language.

This article by Will Duffield first appeared in CATO on May 28, 2020.

Image: Reuters.