As the White House announced an executive order on Thursday aimed at curtailing the power of social media platforms, legal experts raised serious doubts about the proposal and whether it could survive judicial scrutiny.
The order reflects President Donald Trump’s frustration with Silicon Valley – and an attempt to use the levers of government to target his perceived political enemies in the private sector while rallying conservative supporters.
There are provisions in the draft order, reported by CNN, that are more clearly within Trump’s power. For example, instructing federal agencies not to spend advertising money on social media platforms. He can also direct the Justice Department, through Attorney General William Barr, to study claims of political bias and to work with state attorneys general on the matter.
But larger efforts to regulate social media platforms are more of a legal long-shot. Here’s why:
It could violate the First Amendment
The draft order seeks to establish new rules designed to regulate how companies moderate content on their websites. That risks violating tech companies’ own free-speech protections under the First Amendment, said Robert McDowell, a former Republican commissioner at the Federal Communications Commission.
Companies like Facebook and Twitter, he said, are private entities that enjoy the same protections from the government as individuals do.
“This speech control is #unconstitutional,” McDowell tweeted on Thursday.
In a statement, Democratic FCC Commissioner Jessica Rosenworcel echoed the First Amendment concerns.
“An Executive Order that would turn the Federal Communications Commission into the President’s speech police is not the answer,” she said Thursday. “It’s time for those in Washington to speak up for the First Amendment. History won’t be kind to silence.”
Conservative critics of Facebook and Twitter have accused the companies of infringing on users’ free-speech rights. But users of social media don’t enjoy First Amendment protections from Facebook and Twitter, because Facebook and Twitter are private companies, not the government.
It could effectively circumvent Congress’ will
Authors of the 1996 Communications Decency Act, such as Oregon Democratic Sen. Ron Wyden, have repeatedly said their intent behind the law was to ensure tech platforms cannot be sued over their handling of most user content. The objective of the draft order is to ensure that they can.
The draft order attempts to reinterpret the law so that platforms accused of moderating their websites in anything other than “good faith” could face more lawsuits.
In calling on federal agencies to diverge from the will of Congress, then, the Trump administration is effectively trying to rewrite the law without congressional approval — cutting out a whole branch of government, said Andrew Schwartzman, senior counselor at the Benton Institute for Broadband and Society.
“The draft’s directives to the FCC are preposterous, but at the same time, horrifying,” Schwartzman said.
It challenges the independence of federal agencies
Regulators like FCC and the Federal Trade Commission were established by Congress to oversee the private sector. To make sure they do their jobs fairly, those agencies report to Congress, not to the White House or to any one president.
Under the law, experts say, the President cannot order the FTC or FCC to do anything. The Trump administration can make suggestions or requests, and it’s up to the agencies to decide whether to follow through. But even the mere perception that the agencies may be bending to White House pressure could damage the perceived independence of these regulators. And that could have dangerous consequences when they make decisions affecting huge swaths of the economy.
To prevent that outcome, Congress also set up layers of procedures to make agency decision-making transparent to the public. These same processes are what could derail Trump as he tries to use the executive order to punish social media companies.
For example, even if the FCC decided to follow the administration’s request for new regulations, it would have to solicit public feedback, giving opponents the chance to argue against it. And any final rules by the FCC could be challenged in court. As such, these types of regulations can take months and years to implement.
“The FCC can’t just go out and make a rule,” said Harold Feld, a senior vice president at the consumer advocacy group Public Knowledge. “The FTC can’t just go out and do an enforcement action.”
Pushing Congress to act?
But even if much of the order proves ineffective or legally unviable, it still serves a political purpose, experts say, which is to force a conversation about the power of tech platforms and pressure Congress to change the law.
“The way I’m viewing this executive order is, it being the groundwork for changes being proposed in Congress,” said Jeff Kosseff, a cybersecurity law professor at the US Naval Academy who has studied the Communications Decency Act in detail. “That’s ultimately what I think a lot of people are moving toward.”
The legislative effort is already underway. For months, the Justice Department and Republican lawmakers have been pushing for changes to the Communications Decency Act that could expose tech platforms to more legal risk. It’s not impossible that Congress could repeal a key part of the law, known as Section 230, said Kosseff.
“We don’t really know what the modern internet will look like without Section 230,” he said, given that the law has been on the books for nearly a quarter-century.
This story has been updated Thursday with additional developments.