As President Trump continues to find himself at odds with Twitter, the White House is preparing to unleash an executive order that could change the social media landscape for years to come.
The conflict began earlier this week when Twitter began applying fact-checks to a number of users’ tweets, including those written by President Trump. The Commander in Chief took this to heart, and promised swift action to ensure that conservative voices would not be silenced online. Soon, an executive order was in the offing, set to be revealed on Thursday.
Prior to the official announcement, a draft of the order was leaked online…and the language being used was quite powerful.
“In a country that has long cherished the freedom of expression, we cannot allow a limited number of online platforms to hand-pick the speech that Americans may access and convey online,” the draft reads. “When large, powerful social media companies censor opinions with which they disagree, they exercise a dangerous power.”
The executive order takes great pains to avoid some obvious constitutional concerns around the White House’s ability to dictate how private companies should deal with speech espoused by their users, but it could still run into a range of legal challenges. The White House broadly argues that the top social media platforms should be treated as “public squares” within which speech is protected by the First Amendment, while the tech industry has argued that the law enables private companies to make choices about how they treat content on their platforms.
And that’s not all.
As written, one section of the order would require the National Telecommunications and Information Administration, a small agency within the Department of Commerce, to file a petition asking the FCC to review Section 230, tech’s prized liability shield. The section heavily implies that online platforms could be considered publishers of content under certain circumstances — and therefore could be held directly responsible for the content they host, a nightmare for any social media platform fearing a slew of lawsuits over every moderation decision.
Another section would forward complaints of anti-conservative bias filed with the White House over to the FTC, where they could be reviewed as examples of “unfair or deceptive business practices” — technically one of the FTC’s central mandates.
The draft order would also ask the U.S. attorney general to establish a working group “regarding the potential enforcement of State statutes that prohibit online platforms from engaging in unfair and deceptive acts and practices.” It would invite the country’s state attorneys general — nearly all of whom are already involved in antitrust lawsuits against Facebook, Google or both — to participate in the consultation.
In one section aimed directly at the companies’ bottom lines, the draft order would encourage federal agencies to pull back their ad spending from platforms like Facebook and Twitter if it’s found the platforms have imposed “viewpoint-based speech restrictions.” Federal agencies spent about $1.5 billion on advertising and PR over the last 10 years, according to a recent government report. A significant amount of that money goes toward public service advertisements — for instance, this year, the U.S. Census announced a $500 million public education and outreach campaign featuring more than 1,000 advertisements.
Despite the best efforts of the White House to avoid such controversy, a number of social media users have already expressed concerns over the effect that this order could have on the First Amendment, and social media stocks took a beating on Thursday after Wednesday’s announcement.
