Get the Facts About the New EO: CDT Files Suit Challenging President’s Social Media Executive Order

Last week, in an apparent response to actions Twitter took to flag a number of his tweets, the President signed a hastily prepared Executive Order (EO) aimed at social media.  As we explain here, the Executive Order takes a number of actions, including:

(i)  directing the Department of Commerce to request a rulemaking at the FCC (an independent agency) “clarifying” the immunity provided by Section 230 of the Communications Decency Act;

(ii)  directing federal agencies to report their ad spending on online platforms to OMB, which will allow DOJ to review and assess whether any platforms are “problematic vehicles for government speech due to viewpoint discrimination, deception to consumers, or other bad practices”;

(iii) directing the FTC (an independent agency) to “consider taking action . . . to prohibit unfair or deceptive acts or practices in or affecting commerce” by large online platforms such as Twitter and Facebook; here, the EO asserts that these online platforms are “public forums” that “should not restrict protected speech” and states that the White House will forward to DOJ and the FTC more than 16,000 complaints of bias or “censoring” by online platforms that were collected by the White House last month;

(iv) directing DOJ to establish a working group to look into whether state unfair and deceptive practices laws can be applied against online platforms, and

(v) directing DOJ to come up with proposed Federal legislation that would “be useful to promote the policy objectives” of the EO.

As we noted in our summary, “[t]he EO raises significant questions about online expression and the extent to which the government may legally regulate or oversee the decisions made by private companies about their content platforms, undoubtedly sparking battles to be fought in a series of proceedings before federal agencies, some states, and in the courts.”

The first of those battles began this week, when the Center for Democracy and Technology sought to block the EO by filing an action for declaratory judgment and injunctive relief in federal district court in DC alleging that the EO violates the First Amendment.  Although the federal agency actions called for by the EO have yet to take place, the suit alleges that the EO’s very existence violates the First Amendment, in two ways:  First, CDT claims that it serves as a retaliatory attack on a private company, Twitter, for engaging in First Amendment protected speech in commenting on the President’s tweets.  Second, CDT asserts that the EO “seeks to curtail and chill the constitutionally protected speech of all online platforms and individuals— by demonstrating the willingness to use government authority to retaliate against those who criticize the government.”

There appears to be little doubt that the EO was in fact a response to the actions taken by Twitter on a number of the President’s tweets by appending a “fact check” to his claims that there would be widespread fraud from mail-in voting. The complaint walks through the roughly 48 hour timeline between when the President sent the tweet that garnered the reaction to when the President issued the EO, quoting a number of public statements that show the linkage—a linkage that the EO itself appears to acknowledge, devoting a full paragraph to the details of the dispute.  But while the EO’s issuance appears to be tied to the recent dispute with Twitter, it did not come out of nowhere; reports emerged in August of 2019 that the White House was drafting an executive order aimed at alleged anti-conservative bias in the tech community, and the EO that was ultimately issued last week appears to be the product of that effort.   

Although the link between the EO and Twitter’s actions seems clear, the question of whether CDT will prevail in the suit is more complex.  First, CDT will have to show its own standing to bring the suit; in its complaint, it alleges that addressing the EO will cause it to divert significant resources, a type of associational standing.  But, second, executive orders are notoriously difficult to challenge as a procedural matter, especially where there are few explicit effects on private parties.  The government will thus likely argue that this suit is premature, and that even if the EO is a direct response to Twitter’s actions, it cannot plausibly be retaliatory or chill speech because it imposes no immediate legal consequences; indeed, a number of outlets have called the EO “toothless.”  

For example, as an independent federal agency, created by Congress, the FCC is empowered to interpret the language of the Communications Act, including Section 230.  And the agency could potentially conclude that the EO’s suggested interpretation is correct.  But the FCC is also free to set its own agenda, and it cannot be directly ordered by the President to take action, in contrast to Executive Branch agencies.  That is why the EO takes the circuitous route of ordering the Department of Commerce to request a rulemaking at the FCC.  The FCC could well disregard that request, or adopt an interpretation of Section 230 different from the one proposed by the EO. 

The FTC is also an independent agency, with its own statutory mandates and authorities, and it too could decline to take the action contemplated by the EO (though, interestingly, the text of the EO does not appear to fully recognize the agency’s independence, directing that the FTC “shall consider” taking various actions related to online platforms).  The EO’s directions to DOJ, in contrast, are orders that that executive agency must carry out, but they are also contingent, with little immediate consequence.       

If CDT’s lawsuit gets to the merits, one of the issues that telecommunications legal scholars will be watching is the EO’s interpretation of Section 230.  CDT’s complaint alleges that one of the ways in which the EO “will interfere significantly with the freedom of speech of all Americans” “is by dictating a new interpretation of [Section 230] that is contrary to established law.”  As we explained in our summary, the interpretation of Section 230 that the EO directs the Department of Commerce to adopt in a filing before the FCC is indeed controversial.  The EO asserts that the protection from liability afforded by Section 230 for content produced by others should be contingent on the process used by the online platform for editing or reviewing that content pursuant to Section 230(c)(2), and that there should be a version of due process afforded by private entities before they take down or alter user-provided content.  That appears to be in tension with the language of Section 230(c)(1), which provides that interactive computer services are not responsible for third party content full stop.  As the Ninth Circuit has explained, these two subsections provide independent protections for providers: “even those who cannot take advantage of subsection (c)(1), perhaps because they developed, even in part, the content at issue . . . can take advantage of subsection (c)(2) if they act to restrict access to the content because they consider it obscene or otherwise objectionable.” Barnes v. Yahoo Inc., 570 F.3d 1096, 1105 (9th Cir. 2009).

Finally, no matter what the District Court decides, an appeal by either side seems certain.  As a result, a final answer on the legality of the EO will almost certainly come after the election in November, which could potentially render the matter moot.  In the meantime, expect a lot more headlines—and tweets—about social media and the government’s response to it.