Two can play Section 230 game: Trump’s EO uses key statute against social media censorship

Social media giants have long hid behind a law shielding them from litigation to censor content they did not like. President Donald Trump’s executive order just reminded them that laws can also be used as a sword.

Though the First Amendment to the US Constitution prohibits the government from restricting freedom of speech, social media platforms have long argued this does not apply to them as private companies. The executive order signed by Trump on Thursday points out that their status as platforms, and immunity from endless civil lawsuits, depends on their removal of controversial content being done “in good faith.”

The order instructs federal agencies to focus on that qualifier when considering Section 230 (C) of 47 US Code to social media companies, noting that this clearly does not apply when their practices are “deceptive” or “pretextual,” inconsistent with their own terms of service, and used to stifle viewpoints with which they disagree. 

Until now, Facebook, Twitter, YouTube and others could have it both ways, insisting they were “platforms” and therefore not liable for user-generated content, while acting as "publishers" and actively deciding which content they would allow, using entirely arbitrary and ever-changing rules.

The issue became political after 2016, when Trump used social platforms to bypass the establishment media that overwhelmingly favored – and endorsed – his opponent. The ‘Russiagate’ conspiracy theory wasn’t just used in an attempt to get Trump out of office, but also to pressure social media giants to censor viewpoints the establishment did not like – overwhelmingly targeting Trump supporters, but also purging dissident voices on the left.

It made little difference whether the companies did so internally, or by outsourcing it to third parties – such as Facebook did recently – the people making these decisions invariably turned out to be passionately partisan.

The fact that Trump specifically called out Twitter’s “head of integrity” and referenced the presence of a Democrat impeachment witness on Facebook’s Oversight Board indicates that Thursday’s order did not come out of the blue. The advanced copy leaked to friendly journalists earlier in the day likewise suggested that the White House has been laying the groundwork for such a measure for years, just waiting for the right moment. 

Remember when a federal judge ruled that Trump is not allowed to block trolls on his personal account, because Twitter was a “designated public forum” and he is an elected official? Trump does, and he’s using the same logic to put the responsibility on social media to act as such.

Critics, of course, claimed that Trump was only acting now – after years of doing nothing and “monitoring the situation” – because Twitter dared “fact check” his opinions on mail-in ballots this week.

Attempting to shield his employees from Trump’s ire, Twitter CEO Jack Dorsey argued that the president’s tweets “may mislead people into thinking they don't need to register to get a ballot.”

Trump called this “ridiculous” and “stupid.” Think of him what you want, but in this instance he’s correct – Dorsey is really reaching here, and insulting the intelligence of millions of Americans in the process.

Perhaps one of the most absurd features of the Trump era is the extent to which his critics have openly sacrificed their own publicly professed principles in order to oppose him. Thus the self-styled civil libertarians on the left suddenly decided they actually love private corporations and hate government regulations, coming out in support of purging “hate speech” (a nonexistent category in US law).

All of a sudden, the First Amendment applied only to the government – but not to Twitter, Facebook or YouTube. Nor did they bother protesting when those companies applied German, Pakistani or Chinese laws to silence Americans. But now the American Civil Liberties Union is reacting to Trump’s order by shrieking “He can’t do that!” 

Except that yes, he can. Ensuring US laws are faithfully executed is literally his mandate (Article II, Section 3). Trump is not revoking Section 230 – only Congress can do that – but he is clearly issuing new guidance as to how it is to be enforced. The federal government may not even need to do much – Trump seems to be well aware of Saul Alinsky’s Rule 9:“The threat is usually more terrifying than the thing itself.”

The mere prospect of being stripped of Section 230 protections and facing costly litigation as a result may prompt these companies to rethink their behavior. Or they could decide their commitment to the ideology of “social justice” and connections to one party in the US political system trump business concerns, so to speak. We’ll see what happens. 

The trouble with the latter approach is that Joe Biden, the Democrat nominee facing off against Trump in November, has just recently called for abolishing Section 230 altogether – making Trump’s position the more moderate and reasonable one by comparison, from their standpoint. 

As I’ve argued before, the battle has never been over a particular tweet or two, but over who gets to be the arbiter of truth – the American people, or the establishment and its allies in legacy and social media. 

At the end of the day, that's what this executive order is all about.