U.S. President Donald Trump is expected to order a review of a law that has long protected internet companies, including Twitter and Facebook, an extraordinary attempt to intervene in the media that experts said was unlikely to survive legal scrutiny.
News of the proposed executive order came after Trump attacked Twitter for tagging the president’s tweets about unsubstantiated claims of fraud in mail-in voting with a warning prompting readers to fact-check the posts.
The draft order seen by Reuters directs federal agencies to modify the way a law known as Section 230, which protects internet companies from liability for content posted by their users, is implemented. It also orders a review of alleged “unfair or deceptive practices” by Facebook and Twitter, and calls on the government to reconsider advertising on services judged to “violate free speech principles.”
Officials said on Wednesday that Trump would sign the order on Thursday. The White House, Facebook and Twitter declined comment.
The draft order, as written, attempts to circumvent Congress and the courts in directing changes to long-established interpretations of Section 230. It represents the latest attempt by Trump to use the tools of the Presidency to force private companies to change policies that he believes are not favorable to him.
“In terms of presidential efforts to limit critical commentary about themselves, I think one would have to go back to the Sedition Act of 1798 – which made it illegal to say false things about the president and certain other public officials – to find an attack supposedly rooted in law by a president on any entity which comments or prints comments about public issues and public people,” said First Amendment lawyer Floyd Abrams.
Others like Jack Balkin, a Yale University constitutional law professor said “The president is trying to frighten, coerce, scare, cajole social media companies to leave him alone and not do what Twitter has just done to him.”
He said the order would likely have little effect legally.
Still, Twitter’s shares were down 2.2% on Thursday. Facebook and Google parent Alphabet Inc were up slightly.
Trump, who uses Twitter heavily to promote his policies and insult his opponents, has long claimed without evidence that the service is biased in favor of Democrats. He and his supporters have leveled the same unsubstantiated charges against Facebook, which Trump’s presidential campaign uses heavily as an advertising vehicle.
U.S. House Speaker Nancy Pelosi called Trump’s planned order “outrageous” and a “distraction” from the current coronavirus crisis.
The protections of Section 230 have often been under fire for different reasons from lawmakers including Big Tech critic Senator Josh Hawley. Critics argue that they give internet companies a free pass on things like hate speech and content that supports terror organizations.
Social media companies have been under pressure from many quarters, both in the United States and other countries, to better control misinformation and harmful content on their services.
Twitter Chief Executive Jack Dorsey said on the company’s website late Wednesday that the president’s tweets “may mislead people into thinking they don’t need to register to get a ballot. Our intention is to connect the dots of conflicting statements and show the information in dispute so people can judge for themselves.”
Steve DelBianco, president of NetChoice, a trade group that counts Twitter, Facebook and Google among its members, said the proposed executive order “is trampling the First Amendment by threatening the fundamental free speech rights of social media platforms.”
The executive order would call for the Federal Communications Commission (FCC) to propose regulations for Section 230, part of a 1996 law called the Communications Decency Act.
The order asks the FCC to examine whether actions related to the editing of content by social media companies should potentially lead to the firms forfeiting their protections under section 230.
FCC Commissioner Jessica Rosenworcel, a Democrat, said an executive order that would turn the FCC “into the President’s speech police is not the answer.”
The draft order also states that the White House Office of Digital Strategy will re-establish a tool to help citizens report cases of online censorship. The tool will collect complaints and submit them to the Department of Justice and the Federal Trade Commission (FTC).
Federal spending on online advertising will also be reviewed by U.S. government agencies to ensure there are no speech restrictions by the relevant platform.