Constitutional Law

Trump’s Twitter Executive Order is Legally DOA

After Twitter placed “Get the Facts” labels on President Trump’s false Tweets about massive voter fraud caused by mail-in voting, the POTUS went on a tirade against the social media giant, comparing the fact-checking labels to censorship (which it is not) and accusing the company of stifling conservative voices (though the president provided no examples to back up this claim, of course, and Twitter is full of popular conservative voices with millions and millions of followers).

While he may have dragged his feet on his response to the currently ongoing pandemic, he wasted no time in taking a step to address this issue. Yesterday, he issued an Executive Order aimed at limiting the broad legal protections enjoyed by social media companies, known as Section 230 of the Communications Decency Act. The order also directs the Federal Communications Commission (FCC) to start a rule-making process to clarify when social media companies should keep protections they are afforded under the law.

Section 230 is one of the most important laws that allowed for the proliferation of the Internet and social media. Passed in 1996 at the infancy of the World Wide Web, the law protects Internet companies from being sued over content that appears on their platforms (which is posted by others) and allows for content moderation. The removal of a post is left up to the internal rules of companies such as Twitter, YouTube and Facebook, provided those decisions are made “in good faith.”

While some believe Section 230 is too broad and sweeping, can you imagine what would happen to social media if sites were responsible for what other people posted? They would be flooded with copyright, trademark, defamation, and other claims. They would not be able to conduct business. In fact, while Trump claims he is fighting for free speech, the order would severely restrict and limit speech as sites would block users from posting lots of legitimate content.


But the order is not just a bad policy idea – it is legally dead on arrival. Courts have consistently upheld the law in favor of technology companies, even in cases where 230 was used to defend websites advertising children forced into sex trafficking. As outrageous as that may seem, that particular situation was addressed when, in 2018, Congress amended Section 230 to hold websites legally responsible for promoting prostitution or victims of sex trafficking.

And that’s the other reason the order is DOA: an Executive Order cannot amend a law – that power rests with Congress. Furthermore, tasking the FCC with trying to regulate the Internet is a losing proposition. They haven’t the authority and they don’t want the authority: “There’s this huge thicket of First Amendment issues that it drags the agency into,” Democratic Commissioner Jessica Rosenworcel told NPR. “Chief among them is the government regulating speech, dictating what can and can’t be said online.” She added that the order sought to turn the agency into “the president’s speech police.”

Never mind the hypocrisy of a GOP President trying to regulate a private company and control speech in the free marketplace of ideas. Twitter created Trump. He regularly re-tweets conservative pundits (and white supremacists) and make false and spurious claims on the site all the time. Just today the site had to issue a warning on his Tweet regarding the civil unrest in Minnesota following the death of George Floyd; POTUS stated “when the looting starts, the shooting starts.” The site stated the tweet violated its rules against glorifying violence, and it prevented users from viewing the tweet without reading a brief notice, the first time it has restricted one of the president’s messages in this way. Twitter also blocked users from liking or replying to the post, though they were still allowed to retweet it if they added a comment of their own.

But this latest bit of political theater from the Oval Office is dangerous because it de-values truth; it de-values free speech; and it adds to the president’s derision of any voice that sheds light on his pathological inability to tell the truth. The fact is, his tweet about mail fraud was more dangerous than his idiotic pronouncement that its okay for police to shoot people for property crimes. It is highly likely that many States will rely on mail voting for the 2020 election. Casting doubt on the legitimacy of that voting process – which has been used by the military and countless others including POTUS himself- will weaken the country’s belief in the fairness and propriety of our election system. His inflammatory and false rhetoric fuel the baseless belief that voter fraud is rampant and affects national elections. Twitter was 100% legally right to caution his followers to “Get the Facts.” I doubt his followers will, but that does not mean that the site should just let the most powerful person in the world blatantly lie about such an important issue.

This latest petulant act of the president will die on the vine like much of what he attempts to do. It certainly has no chance of surviving a court case if it ever gets implemented.

Follow me on Twitter @oscarmichelen where I promise not to glorify violence; condone shooting looters; and will not lie about voter fraud.

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