With a stroke of a pen, and the attorney general by his side, President Donald Trump struck his most public blow at the social media sites he has long argued are biased against conservatives.
Such alleged bias has been the subject of Hill hearings and presidential tweets. Even Facebook CEO Mark Zuckerberg concedes there is reason for concern about such bias in Silicon Valley, though no systemic bias, at least at his company.
The President signed an executive order Thursday (May 28) that would enlist the FCC in trying to weed out alleged censorship of conservative speech by labeling it deceptive and thus a violation of an online content providers terms of service. It would also direct the government not to spend ad dollars on sites determined to be violating those terms.
"My executive order calls for new regulations under Section 230 of the Communications Decency Act to make it that social media companies that engage in censoring or any political conduct will not be able to keep their liability shield," he said. "That's a big deal. They have a shield, they're not gonna have a shield."
He said online platforms "are engaging in selective censorship that is harming our national discourse."
As an independent agency, the FCC is not subject to executive orders, so the National Telecommunications & Information Administration would be charged with asking the FCC to implement new rules allowing the FCC to judge under what conditions restricting access to content can be considered a violation of an online platform's terms of service. Currently the FCC does not regulate social media sites, or ISPs beyond their terms of service.
"This debate is an important one," said FCC chair Ajit Pai, who signaled the FCC would definitely pay attention to NTIA's filing. "The Federal Communications Commission will carefully review any petition for rule making filed by the Department of Commerce."
While social media have a legal liability protection--via Sec. 230 of the Communications Decency Action--the draft says that does not apply to deceptive actions restricting online content or in violation of its terms of service.
The President had signaled some action was coming on social media Wednesday (May 28), citing among other things Twitter's application of a fact-checking tag to the President's tweets that mail-in ballots were bogus and an effort to rig the upcoming election and Google's admission that is had been deleting Chinese-language phrases critical of the Chinese Communist Party (Google said it was a mistake being corrected).
The President said Thursday that if he were able to legally shut down Twitter, he would do it.
Twitter CEO Jack Dorsey tweeted this week that the platform would continue to fact check election-related speech:
Fact check: there is someone ultimately accountable for our actions as a company, and that’s me. Please leave our employees out of this. We’ll continue to point out incorrect or disputed information about elections globally. And we will admit to and own any mistakes we make.May 28, 2020
The order says that online platforms can't be allowed to be the arbiters of the speech Americans can access, which the draft calls fundamentally un-American and anti-democratic and a dangerous power in the hands of social media.
Among the troubling practices it cites are flagging content as inappropriate even though it does not violate terms of service, as well as making unannounced policy changes that disfavor particular viewpoints and deleting content/accounts without warning, explanation or redress.
Those are the main complaints conservatives have leveled against social media platforms they say are censoring conservative speech.
"As President I will not allow the American people to be bullied by these giant corporations," he said at the signing ceremony.
Asked if he would give up his Twitter account, the President said no, he would continue to use it to "refute fake news."
Attorney General Bill Barr said at the Oval Office ceremony that folks from both parties agree that Sec. 230 has been stretched too far. He said it is now allowing behemoths to engage in censorship of information. He said they are now publishers.
He called the executive order a strong step toward the original understanding of Sec. 230. Barr said DOJ was preparing federal legislation. He said social media companies had engaged in "bait and switch" by billing themselves as free public forums then becoming powerful purveyors of their own speech.
While the White House can't order the FCC to regulate social media, independent agencies, headed by chairs of the same party as the President, can and have honored the spirit of such directives, as the FCC did back in 2011, when President Barack Obama issued an executive order that government agencies had to conduct cost/benefit analysis of regulations.
In that case, Obama issued two executive orders, one saying government agencies needed to submit regulatory review plans to the White House, a second to clarify that although independent agencies like the FCC and FTC were not subject to that order, they were encouraged to do so, at least to the extent of "publishing" a plan of action for reviewing their regs according to a qualitative and quantitative cost-benefit analysis of their impact on jobs and the economy.
"The First Amendment must be the unwavering beacon in any discussion of governmental actions that would have the effect of limiting speech," said Media Institute President Richard Kaplar of Trump executive order. "Freedom of speech and press are the cornerstones of our democracy – and cannot be overlooked or lightly dismissed."
The order is reprinted below:
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Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.