Trump's order taking aim at Twitter is 'bluster': legal experts
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[May 29, 2020]
By Jan Wolfe
WASHINGTON (Reuters) - U.S. President
Donald Trump's attempt to curb what he says is social media censorship
is a political gambit and will not change the legal obligations of
companies like Twitter Inc and Facebook Inc, according to legal experts.
An executive order signed by Trump on Thursday directs federal agencies
to clarify the scope of a law known as Section 230, which protects
internet companies from liability for illegal content posted by users
and allows them to remove lawful but objectionable posts.
Legal experts said it was unclear if the Federal Communications
Commission would embrace Trump's view of Section 230 laid out in the
order. Even if it does, the agency's regulations will have no binding
legal effect on judges who actually have say over the law.
The order "is 95% political theater – rhetoric without legal foundation,
and without legal impact," said Daphne Keller, an expert on internet law
at Stanford University.
![](http://archives.lincolndailynews.com/2020/May/29/images/ads/current/peasleymemorials_lda100213.png)
Marc Randazza, a First Amendment lawyer, said he agreed with Trump's
censorship concerns but acknowledged that much of the executive order
would not lead to actual reforms.
"I think it’s much more of just a leadership statement, or a mission
statement, than a blueprint for anything that’s really going to happen,"
Randazza said.
The White House, Facebook and Twitter declined comment.
Trump, a prolific Twitter user, has long claimed that the service and
other social media platforms silence conservative viewpoints. He signed
the order two days after Twitter for the first time prompted readers to
check the facts in tweets sent by Trump, warning that his claims about
mail-in ballots were false and had been debunked.
Section 230 contains a provision that allows online platforms like
Twitter and Facebook to take down or restrict access to material they
determine "in good faith" to be lewd, excessively violent, harassing, or
otherwise objectionable.
Such restrictions on internet content are generally lawful because the
First Amendment of the U.S. Constitution, which protects free speech,
only applies to government actors, not private companies.
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President Donald Trump boards Air Force One as he departs Washington
for travel to the Kennedy Space Center in Florida at Joint Base
Andrews, Maryland, U.S., May 27, 2020. REUTERS/Jonathan Ernst
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Alleging that censorship of conservative viewpoints is routine, the
draft executive order states that online platforms should not be
shielded when they engage in "deceptive or pretextual actions
restricting online content."
The order directs the Commerce Department to ask the Federal
Communications Commission to clarify the law.
Experts said the analysis of Section 230 in Trump's draft executive
order contradicts court decisions that have interpreted the law as
providing broad immunity.
"A lot of the executive order is bluster," said Kate Klonick, a
professor of internet law at St. John's University. "It basically
casts aside 25 years of judicial precedent."
The FCC's lawyers are well-aware of these court decisions, Klonick
said, and may struggle with how to proceed in the coming months.
"It is unclear they (the FCC) are going to want to do something in
which they would obviously get smacked down by a court order,"
Klonick said.
If the FCC does take action, it will likely spark court challenges,
and Trump is unlikely to prevail, legal experts said.
Klonick said the executive order is a way for Trump to score
political points, regardless of whether it has actual impact.
Jack Balkin, a professor at Yale Law School, said Trump was trying
to use his power as president to frighten social media companies so
they do not fact-check him.
![](http://archives.lincolndailynews.com/2020/Apr/30/images/ads/current/sorrentos_sdadaily_HOMETOWNHEROS_2020.png)
"It’s a shot across the bow," Balkin said.
(Reporting by Jan Wolfe in Washington; Additional reporting by
Elizabeth Culliford and Karen Freifeld; Editing by Noeleen Walder,
Nick Zieminski and Grant McCool)
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