The Authors Guild strongly opposes President Trump’s May 28, 2020, Executive Order, “Preventing Online Censorship,” as yet another attempt by this administration to use executive power to silence speech that is critical of the president. As FCC Commissioner Jessica Rosenworcel said in her statement, “an executive order that would turn the Federal Communications Commission into the president’s speech police is not the answer.”
This Order came after Twitter applied the label of “potentially misleading” to two of Trump’s tweets claiming that mail-in ballots will be fraudulent. Trump retaliated two days later with the Executive Order, but this did not deter Twitter from labeling a subsequent tweet by the President that included “when the looting starts, the shooting starts” as “glorifying violence.” Twitter has recently started using these labels pursuant to a new policy for flagging misleading or deceptive information on its platform. Twitter so far has not removed any tweets, as they may be in the public interest.
One of the most troubling parts of Trump’s Executive Order directs certain government agencies and officials to “clarify” section 230(c) of the Communications Decency Act, a law that shields internet services from civil liabilities for the illegal activities of their users. The Order implies that section 230 is being “distorted” when it is used to protect Twitter and other online platforms from liability when they allegedly “engage in deceptive or pre-textual actions…to stifle viewpoints with which they disagree,” claiming that these kinds of actions amount to editorial conduct that should remove these providers from section 230 immunity.
While the Authors Guild believes that Section 230 itself is far from perfect and should be amended to hold service providers more accountable in certain cases, it is concerned about the President’s attempt to revise a law enacted by Congress through an executive order, especially in retaliation for warnings about harmful statements that are patently false or incite violence.
The Order also requires each Federal department and agency to review its spending on ads and marketing placed on online platforms in light of what the Administration is calling “viewpoint-based speech restrictions,” the clear implication of which is that government agencies may withhold ad dollars in an effort to coerce a platform to engage in speech that violates the platforms’ policies.
The President’s repeated efforts to strong-arm critics through executive power—and in this case, to change a law Congress enacted—goes against the grain of constitutional separation powers. The Order is currently facing a First Amendment lawsuit from a non-profit technology policy called The Center for Technology and Democracy, and other challenges are expected.
We will continue to monitor developments around the Executive Order.