Trump's social media order could affect the campaign, even if it doesn't change the law
- Trump signed an executive order Thursday that aims to rein in content on social media platforms.
- That executive order may never become law. But that may not matter.
- It could still force companies to face the growing pressure of litigation and political heat during the run-up to the 2020 election.
President Donald Trump's executive order targeting social media companies Thursday immediately sparked outcry among the president's critics. But it was also dismissed as legally toothless.
Yet, with the 2020 election on the horizon, that may not matter.
The order gives Trump another weapon to wield from the bully pulpit of an incumbent presidency, serving as a warning shot to social media platforms that he is willing to put them through costly litigation if he is unhappy with the content on their sites. He will also use those platforms, specifically Twitter, to his direct advantage in getting his message out.
"It's an enormous amount of words, bluster and attention for doing effectively nothing anytime soon," said Deborah Pearlstein, a professor of constitutional law at Cardozo Law school. "The issue is whether its purpose is to intimidate and chill free speech, rather than actually affect legal change."
There has been growing support among Democrats and Republicans for a need to review section 230 of the Communications Decency Act, a controversial statue that gives technology companies immunity from being sued over the content on their platforms. Trump's rival in the election, apparent Democratic nominee Joe Biden, has said he believes Section 230 should be "revoked." House Majority Leader Nancy Pelosi unsuccessfully fought to remove Section 230 from U.S. trade law.
Online platforms have defended the statute as necessary to allow people to express their opinions and for their companies to grow. But their detractors have argued it gives companies like Twitter a way to sidestep regulations imposed on traditional publishers, despite the crucial role they play in disseminating news.
It's about presidential power
But Trump's action Thursday, his critics argue, isn't necessarily about Section 230. It's about presidential power.
"There is a serious and long-term debate about the effectiveness of 230 as it is currently written, and there are serious and smart arguments and lots of different sides of the debate," said Pearlstein. "This is not that debate."
Pelosi, meantime, decried the executive order as doing "nothing to address big Internet companies' complete failure to fight the spread of disinformation."
"Instead," she said, "the President is encouraging Facebook and other social media giants to continue to exploit and profit off falsehoods with total impunity – while at the same time directing the federal government to dismantle efforts to help users distinguish fact from fiction."
While Democrats and Republicans have both proposed legislation to modify the law, Trump seemingly wants to sidestep Congress altogether. Instead, his order would rope in the power of federal agencies to tackle content modification.
Trump announced plans to sign an executive order days after he slammed Twitter for applying warning labels to two of his tweets that made misleading claims about mail-in voting.
In the initial draft form of the order, the final version of which has not yet been viewed by CNBC, Trump pushes the National Telecommunications and Information Administration, which is part of the executive branch to lobby the Federal Trade Commission to take actions against companies that engage in "deceptive" acts of communication. The FCC does not report to the president and has historically avoided giving itself a role in defining politically sensitive information.
"Putting the FCC in the position of defining what is good faith seems kind of treacherous," said Megan Brown, a partner with law firm Wiley Rein. "Who at the FCC is going to want to get the crystal ball out and opine on what is reasonable
But even if the FCC doesn't do as Trump hopes, it will likely at least explore rule-making as a result of the order -- if signed in its current form. That, say, experts, could open the door or opponents of the social media companies to pour in with negative comments and complaints about their practices.
Attorney General William Barr said Thursday that the Justice Department would also seek to sue social media companies, saying the application of Section 230 "has been stretched way beyond its original intention."
Twitter on Thursday night called Trump's executive order "a reactionary and politicized approach to a landmark law, saying attempts to erode it "threaten the future of online speech."
Google issued a statement, saying: "We have clear content policies and we enforce them without regard to political viewpoint. Our platforms have empowered a wide range of people and organizations from across the political spectrum, giving them a voice and new ways to reach their audiences. Undermining Section 230 in this way would hurt America's economy and its global leadership on internet freedom."
Flood of litigation
And the executive order could open the floodgates to litigation, even if it's ultimately ruled illegal. Lawyers and lobbyists who spoke to CNBC said they had spent much of Wednesday evening and Thursday scrambling to understand the executive order and its legal implications.
The Trump campaign, meantime, has demonstrated a seeming belief in the power of the threat of costly litigation, lodging libel suits against both The Washington Post and The New York Times. Critics have said these suits are unlikely to be victorious, but that doesn't mean they won't cost money - or rile up Trump's base.
That base may be of increasing focus as the coronavirus pandemic threatens the U.S. economy, a benchmark of Trump's reelection campaign. Trump has shown signs of losing ground with some of the key constituencies that helped him win in 2016, including seniors.
Critics on Thursday were quick to point to what they say was an immediate impact of Trump's battle cry. Facebook CEO Mark Zuckerberg told CNBC he does not think social networks should be fact-checking what politicians post.
Facebook issued the following statement Thursday evening:
"Facebook is a platform for diverse views. We believe in protecting freedom of expression on our services, while protecting our community from harmful content including content designed to stop voters from exercising their right to vote. Those rules apply to everybody. Repealing or limiting section 230 will have the opposite effect. It will restrict more speech online, not less. By exposing companies to potential liability for everything that billions of people around the world say, this would penalize companies that choose to allow controversial speech and encourage platforms to censor anything that might offend anyone."
"At even the first hint of this unlawful White House action, Facebook's Mark Zuckerberg immediately caved to the President, arguing that it's not his job to ensure the American people receive accurate information about voting," said Jessica J. Gonzalez, co-founder of Change the Terms and co-CEO of Free Press.