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Trump's social media order faces legal, implementation hurdles, lawyers say

Communications law experts say President Donald Trump's executive order aimed at preventing censorship on social media is likely to face implementation hurdles and legal scrutiny.

The order directs the U.S. Secretary of Commerce, through the National Telecommunications and Information Administration, to petition the U.S. Federal Communications Commission to review and clarify certain legal protections provided under Section 230 of the Communications Decency Act, a landmark piece of legislation that protects internet platforms from civil and criminal liability for content created and posted by users. This would include clarifying under what conditions platforms could be found to be out of compliance with a clause in the statute regarding "good faith" efforts to restrict access to material deemed objectionable.

SNL Image

President Donald Trump speaks before signing an executive order
aimed at preventing censorship on social media.

Source: AP

The action comes after Twitter Inc. posted fact-check disclaimers on two of Trump's tweets May 26. The disclaimers said the tweets' claims that mail-in voting will lead to voter fraud were unsubstantiated.

Communications attorneys said the legal authority of independent agencies, including the FCC, to interpret and take action on the Section 230 statute as directed is murky at best.

"There's no statutory language that gives the FCC any authority to be interpreting this section," said Jeffrey Westling, a resident fellow for technology and innovation who focuses on online content policy at free-market policy think tank R Street Institute, in an interview. "If they do try to open up a rulemaking ... I would assume they would lose very quickly in court."

Lawyers from Wiley Rein LLP said in a May 28 blog post that the FCC is under "no obligation to act ... and as an independent agency will be expected to base its considerations on its statutory mandates and sound public policy."

FCC Chairman Ajit Pai said May 28 that the agency will "carefully review any petition for rulemaking filed by the Department of Commerce."

Megan Brown, a partner at Wiley Rein who represents clients before the FCC, said in a May 28 interview that the executive order puts the FCC in a challenging position.

"I think this FCC has shown its reluctance to police content and to bump up against the First Amendment," she said.

Brown said it seems inevitable that the FCC would be asked to weigh in on content-based distinctions about what could be seen as lewd, offensive or objectionable.

The executive order would also establish a process where the White House would share complaints it receives related to "tech bias" and "online censorship" with the U.S. Federal Trade Commission and Justice Department. It states that the FTC "shall consider taking action" where companies restrict speech in ways that conflict with their public disclosures around content moderation to prohibit unfair or deceptive acts or practices.

The independent FTC conducts investigations under the authority of Section 5 of the Federal Trade Commission Act, which prohibits "unfair or deceptive acts or practices in or affecting commerce."

"There's just no way they're [the FTC] going to be able win a case on a deception authority claim," said Westling. "The [companies'] content moderation guidelines are not promises, they're just general standards," he said.

Ultimately, the point of the action is to put pressure on companies to make moderation decisions in a way the president wants them to make, Westling said.

On the morning of May 29, the day after the executive order was signed, Twitter posted a "public interest notice" on one of Trump's tweets, alleging he violated company rules around glorifying violence.

Twitter CEO Jack Dorsey also said on May 28 that the company will continue to point out incorrect or disputed information about elections globally.

Addressing litigation risk that could follow the implementation of the executive order, Scott Wilkens, a partner at Wiley Rein, said in an interview that the action could likely be challenged by a number of different parties.

"It's hard to predict whether a challenge would be brought by an entity like Facebook [Inc.] or Twitter or whether it would be brought by an entity like a First Amendment institute or watchdog," he said. "I think that there will likely be room for a number of different parties to do that, depending on how the order is implemented."

The executive order specifically names Twitter, Facebook, Instagram LLC and YouTube LLC.

Among other provisions, it directs the U.S. attorney general to create a working group regarding possible enforcement of state statutes prohibiting online platforms from engaging in unfair and deceptive acts or practices under the executive order. The working group would invite state attorneys general for consultation.

The White House would also share related complaints it receives with the working group.

Brown noted that some of the named companies already have state attorneys general investigating them and that it is possible that any violations in this area could be another area of litigation.

The executive order could also embolden lawmakers in Congress who have been "agitating for changes" to Section 230, she said.

Prior to the executive order, a U.S. senator and a House member, both Republicans, said on May 27 that they are working on legislation to change Section 230. In a May 29 tweet, Trump called for Section 230 to be repealed.