Executive Order "Clarifies" (Rewrites) Online Speech Protections

A May 28, 2020, Executive Order claims to "clarify" a vital protection for internet speech, Section 230 of the Communications Decency Act, 47 U.S.C. § 230, and proclaims that online platforms are public forums under the First Amendment.

An attempt to rewrite established law, the Executive Order followed by mere hours a public feud between President Trump and Twitter over the social media platform's labeling of his tweets as "potentially misleading," and a D.C. Circuit ruling affirming the dismissal of a private lawsuit alleging that Twitter, Facebook, Apple, and Google violated the First Amendment and antitrust law by censoring conservative content.

"Clarification" of Section 230

Courts have widely interpreted Section 230 to provide extremely broad immunity for acts taken by a website or other online provider in publishing content supplied by their users, including when the provider performs traditional editorial functions such as publishing content, taking it down, or editing it (such as shortening or clarifying). Online providers are only liable for content they create or to which they materially contribute.

The Executive Order, entitled "Preventing Online Censorship," attempts to import a "good faith" requirement from one provision of Section 230 into another: Section 230(c)(1) unequivocally states that "[n]o 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." Courts have interpreted this protection to apply regardless of a provider's motive—consistent with Section 230's original purpose to encourage providers to police their own services without fear that they will be held liable for not adequately doing so.

Section 230(c)(2)(A), in contrast, provides that no online provider "shall be held liable on account of … 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" (emphasis added).

The Executive Order takes the position that Section 230(c)(1) should be interpreted in light of Section 230(c)(2)(A), such that a provider who edits user content is engaging in "editorial conduct" and must act in "good faith" or potentially lose the limitation on liability in 230(c)(1). This reading, if adopted by a court, would run contrary to the vast body of case law interpreting Section 230 and would upend established First Amendment protections for online speech. Indeed, a lawsuit has already been filed challenging the constitutionality of the Executive Order.

Online Platforms as "Public Forums"

The Executive Order also takes the position that "large social media platforms, such as Twitter and Facebook" are the "modern public square," pointing to the Supreme Court's 2017 decision in Packingham v. North Carolina, 137 S. Ct. 1730 – and thereby suggesting the platforms should be treated like state actors for First Amendment purposes.

Packingham, recognizing that online media are "the most important places (in a special sense) for the exchange of views," struck down a North Carolina statute prohibiting sex offenders from accessing social media websites. The Court did not hold that social media platforms are government-operated forums that are subject to constitutional constraints.

After Packingham, however, the Supreme Court decided Manhattan Community Access Corp. v. Halleck, 587 U.S. __ (2019), which held that a public access television station was not a "state actor" for purposes of limiting speech. Although Halleck did not concern social media, it is widely regarded as telegraphing the Court's views on the subject.

Indeed, since it was decided, two circuits have held that social media platforms are not subject to the "public forum doctrine." Prager University v. Google, LLC, 951 F.3d 991 (9th Cir. 2020) (YouTube is not a public forum); Freedom Watch, Inc., v. Google Inc., No. 19-7030, slip op. (D.C. Cir., May 27, 2020) (rejecting claims alleging social media platforms had suppressed conservative political views and holding that the platforms are not public forums).

Directions for Enforcement

The Executive Order directs federal agencies to take a number of regulatory actions:

First, the Executive Order directs the filing of a petition for rulemaking with the Federal Communications Commission (FCC), requesting that the FCC propose regulations concerning "the conditions under which an action restricting access to or availability of material is not 'taken in good faith' under Section 230(c)(2)(A)," and in particular, which actions are "(A) deceptive, pretextual, or inconsistent with a provider's terms of service; or (B) taken after failing to provide adequate notice, reasoned explanation, or a meaningful opportunity to be heard." The FCC, however, has previously said that it has no jurisdiction over the internet.¹ 

Second, the Executive Order purports to declare it to be an "unfair or deceptive practice" under the Federal Trade Commission Act for "entities covered by section 230 [to] restrict speech in ways that do not align with those entities' public representations about those practices," and purports to direct the Federal Trade Commission (FTC) to "consider taking action" against entities covered by Section 230 under that authority.

Third, the Executive Order directs Attorney General William 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," and "develop model legislation for consideration by legislatures in States where existing statutes do not protect Americans from such unfair and deceptive acts and practices."

Finally, the Executive Order directs federal agencies to review and report the amount of money spent on online platforms and the "statutory authorities available to restrict their receipt of advertising dollars," after which the Department of Justice will "review the viewpoint-based speech restrictions imposed by each online platform identified in the report … and assess whether any online platforms are problematic vehicles for government speech due to viewpoint discrimination, deception to consumers, or other bad practices."

Applicability to "Online Platforms"

The Executive Order uses the term "online platform," which it defines as "any website or application that allows users to create and share content or engage in social networking, or any general search engine." But Section 230 applies to all "interactive computer services"—a category covering far more than just social-networking sites and search engines—and thus the Executive Order potentially affects this larger category of service providers.

Enforceability Questions

While the President is entitled to hold and express his views about Section 230, there is no evident legal basis to conclude that he has more authority to have those views adopted by courts, legislatures, or regulators than does any other citizen. In particular, an Executive Order cannot amend Section 230 or overrule the hundreds of state and federal judicial decisions that have interpreted it since its passage in 1996.

Moreover, it is far from clear that the FCC has the authority to issue interpretations of Section 230 that would bind social media platforms (or others), and an Executive Order cannot expand the statutory limitations on that agency's regulatory authority. Even so, it will be important to monitor any actions taken pursuant to the Executive Order by the NTIA, the FCC, and the FTC.

FOOTNOTE

1   Restoring Internet Freedom Order, 33 FCC Rcd 311 (2018), aff'd in relevant part, Mozilla Corp. v. FCC, 940 F.3d 1 (D.C. Cir. 2019)