Although dressed in legal jargon and political atmospherics, media law scholars agree that President Trump’s executive order announced on May 28 is already dead on arrival.
The order began by delving into the importance of free speech and the ability to publish content without platform interference based on political bias, which, in the case of Twitter and some other social media companies, the president maintains favors his opponents. Facebook founder Mark Zuckerberg, on the other hand, says his company does not flag posts with political content.
President Trump’s executive order raised concerns about social media platforms engaging in what’s referred to as selective censorship that harms the country’s political discourse.
The president wrote that platforms partaking in such behavior will not be sheltered under an updated definition of Section 230, the section of the Communications Decency Act which provides social media outlets with immunity from assuming liability for third-party users. Trump was upset that Twitter put a label on two of his tweets and encouraged readers to get further information.
The caveat about this updated definition is that it does not yet exist; and furthermore, President Trump does not have the power to make it exist, according to Professor Jeffrey Blevins, head of the department of journalism at the University of Cincinnati (UC) and an expert on media law and policy.
The Communications Decency Act is not an administrative rule to begin with; it is a statute from Congress that governs the Federal Communications Commission (FCC).
Blevins explained that the FCC can enforce statutes that Congress passes and make rules of their own.
“But it would not be typical for the president to tell the FCC to reinterpret or write new regulations about a statute, particularly one that the courts have interpreted very broadly,” Blevins said.
Within the scope of his power, President Trump is only able to ask in the executive order that a petition for rule-making be filed with the FCC, although Dr. Blevins said that if the FCC did attempt to more heavily regulate social media outlets he expects it would be challenged in federal court immediately.
According to Jonathan Peters, assistant professor at the University of Georgia (UGa.) and press freedom correspondent for the Columbia Journalism Review, it is well within the First Amendment rights of a platform, as they are considered private businesses, to create content and enforce rules as they please.
A demonstration of this right is the terms and conditions agreement that users sign when they create their account.
Users do not have to agree to the terms and conditions set forth by a social media platform if they are not willing to run the risk of being moderated. However, that also means they do not get to have an account.
The order also asked for federal agencies to submit information about how much of their budget goes toward advertising on social media and on which platforms they are advertising, to “assess whether any online platforms are problematic vehicles for government speech due to viewpoint discrimination, deception to consumers, or other bad practices.”
However, no mandate for funding restrictions to certain social media platforms was made.
Trump’s executive order further made suggestions to the Federal Trade Commission (FTC) to field complaints from the Tech Bias Reporting tool the White House launched in May of 2019 and consider writing and publishing reports about these complaints to be made available to the public.
According to the executive order, the Tech Bias Reporting tool has already received 16,000 complaints of social media censorship based on political bias.
However, Dr. Blevins said this is when President Trump goes completely out of the scope of his authority.
While the Federal Trade Commission can regulate deceptive advertising, as it pertains to trade, they have almost no power to regulate online censorship based on political viewpoints, according to Dr. Blevins.
The UC professor said this executive order is a perfect example of symbolic politics: the President’s discontent with Twitter’s decision to flag his tweet resulted in him drafting an executive order that “ultimately has no teeth,” Blevins said.
The First Amendment exists to protect social media from government, not the other way around, said Peters.
The UGa. professor also noted that this point seemed to have been lost in the executive order, as President Trump tried to restrict free speech in the name of free speech.
This article originally appeared in The BellRinger: https://aubellringer.wordpress.com/2020/06/02/how-viable-is-trumps-executive-order-targeting-social-media/