Trump’s social media executive order on weak legal ground

President Trump’s executive order that aims to strip certain legal protections from social media companies such as Twitter and Facebook is making political waves, but legal experts say the measure is mostly toothless and vulnerable to court challenges.

The order drew praise from Trump allies who share the president’s view that Silicon Valley carries an anti-conservative bias. The practical effect of Trump’s executive action, however, is likely to be minimal, according to telecommunications lawyers.

The most ambitious component of the order is a proposal to peel back legal immunities that online platforms have enjoyed for almost 25 years. Those valuable protections fall under a provision of a 1996 law often referred to as Section 230.

Trump’s order argues that the section was never intended to grant blanket immunity “to allow a handful of companies to grow into titans … and silence viewpoints that they dislike.”

Legal experts say that hollowing out the key provision of the 1996 Communications Decency Act would turn the internet upside down, shifting it from a system that has mostly relied on self-governance to one of federal oversight and civil litigation.

Yet many legal observers don’t see the order succeeding in reshaping how the internet is regulated. In addition to likely court challenges, the order also faces a few regulatory hurdles within the government.

Under the order, the Trump administration will first direct an agency within the Commerce Department to file a petition with the Federal Communications Commission (FCC) to clarify the scope of Section 230. If the FCC were to issue a new rule, it could make social media platforms more liable for claims based on third-party content as well as their efforts to moderate their platforms, which currently enjoy legal cover as long as the platforms operate in good faith.

As an independent agency, the FCC could refuse the request. The two Democratic members of the five-person commission have already announced their opposition to Trump’s idea.

“Social media can be frustrating. But an Executive Order that would turn the Federal Communications Commission into the President’s speech police is not the answer,” said Jessica Rosenworcel, one of the Democratic commissioners.

FCC Chairman Ajit Pai (R) has not make his view publicly known, saying only that the commission “will carefully review any petition for rulemaking” filed by the Trump administration, adding, “This debate is an important one.”

Experts in telecommunications law say Pai is unlikely to undercut the current suite of legal protections.

“Right now, I have no doubt that Ajit Pai of the FCC is not going to move on this,” said Berin Szoka, a senior fellow at TechFreedom, a free market think tank.

Trump’s plan would have a higher likelihood of succeeding if he were to win a second term and nominate a new FCC chairman who is more favorable to issuing a new sweeping rule.

Commissioner Brendan Carr (R) has spoken favorably about Trump’s proposal.

“I think given what we’ve seen over the last few weeks, it makes sense to let the public weigh in and say, is that really what Congress meant when they passed and provided those special protections?” Carr told Yahoo Finance on Thursday.

Still, Szoka and other experts who spoke to The Hill agreed that a new rule by the FCC would invite legal challenges.

Gigi Sohn, a distinguished fellow at the Georgetown Law Institute for Technology Law and Policy, said Trump would face an uphill battle in court.

Conservatives are deeply divided over President Trump’s executive order directing the federal government to consider stripping some of the legal protections afforded to the social media platforms.

The order, which came after Twitter appended a fact check to one of the president’s claims about mail voting fraud, would ostensibly make it easier to sue the social media platforms over content posted by the people who use their websites.

Conservatives have long been concerned by what they view as political bias in Silicon Valley. Those concerns have grown as outlets such as Google, Twitter and Facebook have become primary sources of news aggregation for many consumers.

But some conservatives are appalled by Trump’s executive order, viewing it as an authoritarian power grab that will lead to government censorship, an explosion of frivolous lawsuits and a massive expansion of the regulatory state.

Others are celebrating what they view as a long overdue crackdown on an industry they believe has grown too powerful and too willing to stifle conservative speech.

The executive order has split traditional ideological allies, including Sens. Ted Cruz (R-Texas) and Mike Lee (R-Utah), two of the most conservative members of the Senate.

Lee described the order as a “terrible precedent” and a “very dangerous, slippery slope” that is certain to be abused by future administrations seeking to regulate political speech.

“You keep government as far away from it as you possibly can,” Lee said on Fox News Radio’s “The Guy Benson Show.”

“Governments have force as their only real weapon. You don’t want force deciding the art of persuasion or deciding the art of communication with social media,” he added.

Cruz cheered the order, describing Big Tech as “the greatest threat facing our democracy” and arguing that the social media platforms have been able to hide behind legal protections to “target speech with which they disagree and advance their own political agendas.”

“[The tech industry] doesn’t just stifle Americans’ free speech, it shapes what Americans see, hear, and ultimately think about the major issues facing our country, including how those issues should be addressed and who should be elected to address them,” Cruz said in a statement.

At the heart of the debate is Section 230 of the Communications Decency Act, which shields online platforms from lawsuits stemming from content their users post online.