Frequently Asked Questions About Trump’s Executive Order, Section 230 and the Impact on Twitter
What is Section 230 and Why Should I Care?
Section 230 is a part of a 1996 law known as the Communications Decency Act. It provides immunity from lawsuits to websites such as Facebook, Twitter and Google. To qualify for that immunity website operators have to treat all users equally and when a website decides to block content or ban a user, under the 1996 law, the website must do so in good faith.
The practical effect of Section 230 is that if someone posts a negative statement on a website, the website itself cannot be sued for defamation or other tort. For example, if an attorney wrote a false statement about the President of the United States on LinkedIn, the attorney could be liable for defamation but LinkedIn, under Section 230, as the mere platform that hosts the false statement, ordinarily would not be liable. The immunity was established by the law passed by Congress and has been interpreted by the courts through many court decisions since 1996.
What does President Trump’s May 28, 2020 Executive Order do to Section 230’s Immunity?
The normal process to change a law that was passed by Congress is to have Congress pass an amendment. For example, in 2018, the law was amended to narrow Section 230’s immunity to allow for liability to be imposed on websites that knowingly facilitated sex trafficking on their websites. Laws can also be shaped by the courts when judges make rulings interpreting laws such as Section 230.
On May 28, 2020, President Trump issued an Executive Order in response to Twitter tagging some of President Trump’s tweets with fact check links. President Trump’s order would:
1. Redefine what it means to qualify for immunity. Section 230 provides immunity to all intermediaries such as ISPs, Twitter, Facebook and Yelp!
2. Forbid federal spending on social media that the federal government finds stifles free speech by not acting in \”good faith\” when it regulates its users or content.
3. Order the Secretary of Commerce, Wilbur Ross, to work with AG, Bill Barr, to file a petition with the FCC to propose new regulations that punish websites that the Trump administration finds do not act in good faith regarding the website’s content or users
4. Enlist the Federal Trade Commission to target social media companies that the Trump administration deems acting in bad faith.
5. Coordinate a working group to propose model legislation for states to adopt to prohibit websites that act in bad faith.
Is President Trump’s Executive Order Lawful?
Not likely. The executive order attempts to bypass Congress’ legislative role and the court’s judicial role by attempting to redefine who gets immunity under Section 230. Moreover, to the extent that the other aspects of Trump’s order is based on the content of the websites, the order likely runs afoul of the First Amendment. A group based in Washington DC, the Center for Democracy and Technology, has already filed a lawsuit challenging the validity of the Executive Order. The lawsuit asks for the executive order to be declared invalid.
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