The next phase of President Trump’s unconstitutional “Executive Order on Preventing Online Censorship” unfolded on Monday, when the National Telecommunications and Information Administration (NTIA) followed the President’s Order and petitioned the Federal Communications Commission (FCC) to upend the law that has safeguarded free expression online for over 20 years. That law, known as Section 230, shields online services like Facebook and Twitter from liability for what their users post online. Critically, it also allows online platforms to moderate awful, but often lawful, content like hate speech and efforts to suppress voting.
The NTIA’s petition to the FCC asks it to write new rules on when Section 230 protects social media services for their actions. It is the next step in President Trump’s retaliatory campaign to pressure online platforms after Twitter fact-checked the President’s misleading tweets about mail-in voting earlier this year.
The details of the Order and Petition are wonky, but the effect of it is not: an unconstitutional effort to intimidate online services from moderating their platforms in ways the President dislikes. CDT challenged the entire Order because it violates the First Amendment. It interferes with freedom of expression online, and attempts to subvert the courts and Congress. With everything else going on in the world today, including Congressional scrutiny of these same online platforms, we cannot lose sight of the President’s efforts to intimidate platforms from responding when he engages in spreading misinformation and hate speech online.
Today, social media services set their own standards about what content is okay to post, and the First Amendment protects their rights to make those decisions. If someone tweets misinformation about how to vote, or claims that drinking bleach cures the novel coronavirus, the platform can remove the post or flag it as inappropriate. Posts by individual users are protected from government censorship by the First Amendment, and so are the decisions by platforms to moderate that content. That’s settled law in this country. It’s also good policy. Given the breadth and complexity of issues such as voter intimidation and misinformation, we should want platforms to be able to thoughtfully respond to this objectionable but otherwise lawful speech.
That’s not to say platforms always get content moderation right. There are complex questions about how and when moderation happens – what posts are taken down, what stays up, and how those decisions are made. At CDT, we have consistently called on platforms to have clear rules of the road, to be more transparent about their moderation decisions, and to create effective mechanisms for appeal if users think content moderation policies are applied unfairly, among other steps. These issues are being debated in Congress, internationally, and within companies and civil society today.
But the President’s Order is not about transparency or informed decision-making. Instead, it tries to upend settled law about free speech. It directs federal government agencies to dictate when content moderation is acceptable, and to create arbitrary interpretations of whether a platform is engaging in “viewpoint-based speech restrictions” — in other words, is politically neutral in the government’s eyes. But the First Amendment bars the federal government from choosing what speech is acceptable and what is not, especially when it comes to politics and the workings of democracy. This is what the Executive Order unconstitutionally attempts, clearly demonstrating that the government will retaliate against those who criticize it.
Truthful information about how, where, and when to vote should matter to all Americans, regardless of political affiliation. When social media services flag the President’s disinformation about voting, they are doing us all a public service — and their efforts are constitutionally protected. The First Amendment does not allow the President or his administration to quash truthful speech about the mechanics of voting, and he may not retaliate against those who act to safeguard American democracy.