The Trump Executive Order Claiming to Regulate Social Media Networks Is Legally Meaningless and Distracting

I suppose it’s worth taking a few minutes to read about the Trump administration’s “Executive Order on Preventing Online Censorship”, which you can find in full on the White House website. It is a tantrum-grade piece of rush work, hastily cobbled together from old drafts of similar orders that misrepresent Section 230 of the Communications Decency Act, and legitimize the myth that social media networks are somehow biased against American conservatives.

Timothy B. Lee and Kate Cox, Ars Technica:

The centerpiece of the order is an effort to strip big technology companies of protection under Section 230, a federal law that immunizes websites against liability for user-submitted content. That would be a big deal if Trump actually had the power to rewrite the law. But he doesn’t. Rather, his plan relies on action by the Federal Communications Commission, an independent agency that has shown no inclination to help. Even with FCC help, the most that will happen is a slight reinterpretation of the law—one that the courts might choose to ignore.

The story is similar for other parts of Trump’s executive order. Trump wants the Federal Trade Commission to ensure companies are following their own policies on content moderation. That’s the same approach the FTC takes with privacy now, and it has proven toothless in practice. Perhaps the most significant change would be redirecting federal ad spending away from big technology platforms. At worst, that would be a modest hit to the bottom lines of technology giants that rake in billions of dollars every quarter.

Mike Masnick, Techdirt:

To be clear: the executive order is nonsense. You can’t overrule the law by executive order, nor can you ignore the Constitution. This executive order attempts to do both. It’s also blatantly anti-free speech, anti-private property, pro-big government — which is only mildly amusing, given that Trump and his sycophantic followers like to insist they’re the opposite of all of those things. But also, because the executive order only has limited power, there’s a lot of huffing and puffing in there for very little actual things that the administration can do. It’s very much written in a way to make Trump’s fans think he’s done something to attack social media companies, but the deeper you dig, the more nothingness you find.

Stephen T. Stone, a frequent Techdirt commenter, wrote an excellent tangental piece about the difference between moderation, discretion, and censorship:

A platform the size of Twitter or Facebook comes with a built-in potential audience of millions. Anyone banned from Twitter loses the ability to reach that audience. For some people, such a loss can feel like censorship — even though it isn’t. No one has the right to an audience. No one has the right to make someone listen. But entitled people think they do have those rights, and any “violation” of those “rights” is “censorship”.

So, here are the facts: conservatives are not being censored on the basis of their political beliefs; the President of the United States is certainly not being censored — he’s the president; Section 230 of the CDA helps protect companies like Twitter from liability when a user threatens violence, posts something defamatory, or similar; the First Amendment allows social media companies to determine what kind of posts they will allow, prevent, or remove; and, finally, this Executive Order will have virtually no effect.

This topic distracts from far more pressing concerns. In the real world, there is a pandemic that is causing thousands of deaths every day, many of which are in the United States because its federal government took almost no action through February and much of March. The response to that pandemic has caused economic activity around the world to slow down, leading to unprecedented job losses that threaten the livelihood of millions. Politically, the remaining positivity in Trump’s poll numbers has been declining, which sucks for him; a more pressing concern is that Americans’ trust in their federal government keeps dropping.

Whenever something like this Executive Order is described as a “distraction”, it should not carry the implication that it is deliberate. This administration is so readily engaged in scandalous, unethical, and legally dubious behaviour that it becomes a distraction creating machine without necessarily trying. It’s not really a strategy; it’s what happens when the people in charge are gleefully nihilistic and joyous in their spite. We cannot digest this force-fed all-you-can-eat buffet of cruelty.