On May 26, 2020, for the very first time, the social networking service Twitter added a label to two tweets by President Donald Trump which refuted the President’s claims about voter fraud in California. Several days later, Twitter permitted a tweet by the President about protests in Minneapolis to remain accessible with another label stating that the tweet “violated Twitter Rules about glorifying violence.”

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The President quickly responded with a series of tweets which claimed that Twitter’s fact-checking of him “was interfering in the 2020 Presidential Election,” that “Twitter is completely stifling FREE SPEECH” and that he, as president, “will not allow it to happen,” and, referring to major social media platforms, stated that “We will strongly regulate, or close them down.”

The President followed up his tweets by issuing Executive Order on May 28, 2020 (Executive Order on Preventing Online Censorship), which states up front as follows:

Free speech is the bedrock of American democracy. Our Founding Fathers protected this sacred right with the First Amendment to the Constitution.  The freedom to express and debate ideas is the foundation for all of our rights as a free people. 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 on the internet.

The Executive Order then takes aim at social media platforms by directing federal regulators to scrutinize Section 230 of the Communications Decency Act of 1966 (“CDA”), 47 U.S.C. §230(c)(1), which protects internet services, including social media companies, from liability based on the words third parties use on their platforms. As set forth in the July 22, 2019 Trending Law Blog Post, Section 230 of the CDA is already facing amendment in the Senate. It’s now facing another challenge – this time by the President who tweeted on May 29, 2020, “REVOKE 230!”

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But does the President have the authority to repeal or revoke all or part of a federal statute such as §230 of the CDA? No, he does not.  Article I, Section 8, Clause 18 of the Constitution empowers Congress, not the President, to make laws. Clause 18 would also empower Congress, not the Executive Branch, to repeal a law.

The President’s Executive Order does not actually repeal or revoke §230, but it does seek, among other things, to have federal agencies establish rules to clarify when social media companies should be protected from liability and to take legal action against social media companies that engage in “deceptive” conduct or “inconsistent with an online platform’s terms of service.”

The Executive Order raises numerous First Amendment issues, including whether the federal government can regulate the speech rights of private companies, and there will likely be many court challenges in response to it. In fact, one such challenge has already been filed in federal court by the Center for Democracy & Technology.

The First Amendment was adopted in 1791. Since then, there have been hundreds of cases involving the First Amendment. The May 28, 2020 Executive Order suggests there will be many more to come.

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            For any question relating to this article, please contact Robert B. Nussbaum, Esq. at Saiber LLC.