The Executive Order Targeting Social Media Gets the FTC, Its Job, and the Law Wrong

This is one of a series of blog posts about President Trump’s May 28 Executive Order. Other posts are here, here, and here.

The inaptly named Executive Order on Preventing Online Censorship seeks to insert the federal government into private Internet speech in several ways. In particular, Sections 4 and 5 seek to address possible deceptive practices, but end up being unnecessary at best and legally untenable at worst.

These provisions are motivated in part by concerns, which we share, that the dominant platforms do not adequately inform users about their standards for moderating content, and that their own free speech rhetoric often doesn’t match their practices. But the EO’s provisions either don’t help, or introduce new and even more dangerous problems.

Section 4(c) says, “The FTC (Federal Trade Commission) shall consider taking action, as appropriate and consistent with applicable law, to prohibit unfair or deceptive acts or practices in or affecting commerce, pursuant to section 45 of title 15, United States Code. Such unfair or deceptive acts or practice may include practices by entities covered by Section 230 that restrict speech in ways that do not align with those entities’ public representations about those practices.”

Well, sure. Platforms should be honest about their restriction practices, and held accountable when they lie about them. The thing is, the FTC already has the ability to “consider taking action” about deceptive commercial practices.

But the real difficulty comes with the other parts of this section. Section 4(a) sets out the erroneous legal position that large online platforms are “public forums” that are legally barred from exercising viewpoint discrimination and have little ability to limit the categories of content that may be published on their sites. As we discuss in detail in our post dedicated to Section 230, every court that has considered this legal question has rejected it, including recent decisions by U.S. District Courts of Appeal for the Ninth and D.C. Circuits. And for good reason: treating social media companies like “public forums” gives users less ability to respond to misuse, not more.

Instead, those courts have correctly adopted the rule on editorial freedom from the Supreme Court’s 1974 decision in Miami Herald Co. v Tornillo. In that case, the court rejected strikingly similar arguments—that the newspapers of the day were misusing their editorial authority to favor one side over the other in public debates and that government intervention was necessary to “insure fairness and accuracy and to provide for some accountability.” Sound familiar?

The Supreme Court didn’t go for it: the “treatment of public issues and public officials—whether fair or unfair—constitute the exercise of editorial control and judgment. It has yet to be demonstrated how governmental regulation of this crucial process can be exercised consistent with First Amendment guarantees of a free press as they have evolved to this time.”

The current Supreme Court agrees. Just last term, in Manhattan Community Access v Halleck, the Supreme Court affirmed that the act of serving as a platform for the speech of others did not eliminate that platform’s own First Amendment right to editorial freedom.

But the EO doesn’t just get the law wrong—it wants the FTC to punish platforms that don’t adhere to the erroneous position that online platforms are “public forums” legally barred from editorial freedom. Section 4(d) commands the FTC to consider whether the dominant platforms are inherently engaging in unfair practices by not operating as public forums as set forth in Section 4(a). This means that a platform could be completely honest, transparent, and open about its content moderation practices but still face penalties because it did not act like a public forum. So, platforms have a choice—take their guidance from the Supreme Court or from the Trump administration.

Additionally, Section 4(b) refers to the White House’s Tech Bias Reporting Tool launched last year to collect reports of political bias. The EO states that 16,000 reports were received and they will be forwarded to the FTC. We filed a Freedom of Information Act (FOIA) request with the White House’s Office of Science and Technology Policy for those complaints last year and wer told that that office had no records (https://www.eff.org/document/eff-fioa-request-tech-bias-story-sharing-tool).

Section 5 commands the Attorney General to convene a group to look at existing state laws and propose model state legislation to address unfair and deceptive practices by online platforms. This group will be empowered to collect publicly available information about: how platforms track user interactions with other users; the use of “algorithms to suppress political alignment or viewpoint”; differential policies when applied to the Chinese government; reliance on third-party entities with “indicia of bias,” and viewpoint discrimination with respect to user monetization. To the extent that this means that decisions will be made based on actual data rather than anecdote and supposition, that is a good thing. But given this pretty one-sided list, there does seem to be a predetermined political decision the EO wants to reach, and the resulting proposals that come out of this may create yet another set of problems.

All of this exacerbates a growing environment of legal confusion for technology and its users that bodes ill for online expression. Keep in mind that “entities covered by section 230” describes a huge population of online services that facilitate online user communication, from Wikimedia to the Internet Archive to the comments section of local newspapers. However you feel about Big Tech, rest assured that the EO’s effects will not be confined to the small group of companies that can afford to navigate these choppy waters.