An excellent student in my First Amendment class emailed me yesterday to ask whether Trump’s executive order on social media violated Twitter and Facebook’s First Amendment rights.  This is a complicated question worthy of sincere analysis.  Since the question of the executive order’s constitutionality came to me from a former student, and has not yet been resolved by the courts, I will approach it like a law school hypothetical.

The Facts:  This Tuesday, Twitter added a “fact check” label to two of the President’s tweets about mail-in ballots and voter fraud.  President Trump believes the social media platform is displaying an anti-conservative bias in labeling certain tweets as false and adding its own editorial content to only some tweets, while ignoring others that may also be misleading.  The President argues that Twitter is no longer acting as a neutral arbiter when allowing others to post content to its site.  (Facebook’s Mark Zuckerberg disagreed with Twitter’s approach, noting that “I just believe strongly that Facebook shouldn’t be the arbiter of truth of everything that people say online.”)

The Executive Order:  In response to Twitter’s actions, President Trump yesterday issued an Executive Order on Preventing Online Censorship.  He wishes to remove the liability protections afforded by Section 230 of the Communications Decency Act to social media providers or other websites that display information posted by users.  Section 230 of the CDA, which actually has detractors on the right and the left, gives Internet content providers immunity from lawsuits for defamation and other torts if these providers are not “publishers” of that information.  In essence, websites can be sued only for the content they directly publish, and are immunized from liability for content others publish, even if they engage in “good faith” blocking of access to content these websites believe are “obscene, lewd, lascivious, filthy, excessively violent, harassing or otherwise objectionable.”  Section 230’s protections from lawsuits has allowed websites to have robust comments sections and spawned the growth of many websites in America during the early phases of the Internet.

In his executive order, President Trump directed the Federal Communications Commission to make rules surrounding which social media platforms are no longer engaging in “good faith” restrictions of access to content and will thus be deemed publishers – subject to lawsuits for the content of users.  Currently, websites are immune from liability for others’ content added to their websites, whether they screen comments beforehand or not.  President Trump seems to be suggesting that Twitter is not moderating its content in good faith and thus is not immunized under Section 230.  If Twitter is deemed a publisher, it will no longer be able to claim Section 230’s immunity for others’ tweets, and thus ironically may engage in even more aggressive policing of users’ content.

Disclaimer- my personal views:  Before I legally analyze this issue, I should state my personal views about the issue.  I think Section 230 of the CDA is a beneficial law.  Although it creates some egregious comments sections, and although Twitter is somewhat of cesspool of un-nuanced anger and often misinformation, I still believe it is better to have more information aggregated than having Twitter selectively editorialize users’ tweets.  I agree with Mark Zuckerberg that our Internet content platforms should remain as neutral as possible (including Google’s search-engine algorithm).  If Twitter is going to remove or flag/editorialize content, it should have clear, transparent standards for how it plans to do so in an apolitical way, to decrease the risk of further alienation and political polarization perpetuated by these giant media platforms.

Legal Analysis:  As a threshold matter, many legal scholars are arguing that President Trump and the FCC lack authority to alter the Communications Decency Act, a law signed by Congress and whose provisions have been adjudicated thoroughly in the courts.  For the FCC to be able to take additional action, Congress would need to delegate authority to the FCC to determine which content providers are censoring content “in good faith,” and can thus enjoy the protections of Section 230.  Because the law is clear and unambiguous, these scholars and activists argue, there is nothing for the FCC, an administrative agency, to decide.  Under the current law, all websites are immunized from liability for their posters’ content, regardless of how the websites moderate this content, the argument goes.  Congress could repeal Section 230, but the FCC has no action it can legally take.

I am not so sure about this position.  I think there may be sufficient ambiguity in the law for the FCC to define “good faith” to potentially exclude websites that engage in selective editorializing of content for political reasons, but perhaps not.  I can leave this issue to the administrative law scholars to debate and the courts to decide.  I will weigh in on the First Amendment issues.

First, no private website is constitutionally obligated to be politically “neutral.”  Twitter, a private company, is legally entitled to editorialize its content without violating anyone’s First Amendment rights.  Free speech values, as a concept, may be implicated by what Twitter is doing, but Twitter is not the government and does not have to abide by the Constitution’s free speech protections.

That said, the Constitution also does not require Section 230 of the CDA.  The First Amendment itself does not immunize Twitter from lawsuits for the content of its users, if that content is unprotected speech, such as defamation, obscene speech, or child pornography.  Constitutionally speaking, if Twitter allows defamatory content, Twitter can be sued for that content, so long as defamation law is applied properly and in a way that does not violate Twitter’s free speech rights.  (Note:  The “actual malice” standard, where a public figure suing Twitter would have to prove conscious falsity or reckless disregard for the truth, would make it difficult to sue Twitter for its users’ content, although Twitter would likely over-police its content if Section 230’s liability protections are removed, for fear of lawsuits.)

Because Section 230 is not constitutionally required, Congress could repeal this section.  Perhaps (if legal under administrative law), the FCC could implement the CDA according to President Trump’s latest executive order, removing Section 230 protections for websites that do not remain neutral in moderating content.  However, if President Trump’s actions are in direct retaliation to Twitter chastising Trump, there is room for the argument that President Trump is punishing Twitter for its speech.  This would surely be a First Amendment problem, and Twitter could bring an as-applied challenge to whatever the FCC does in response to the executive order. (There is some evidence that President Trump has been considering this type of executive order since 2019, but Twitter’s latest actions directly contributed to its issuance yesterday.)  Even if Section 230 is not constitutionally required, it cannot be undone by executive order as punishment for speech the government dislikes.

Additionally, if the FCC is empowered to define which websites are not flagging content “in good faith” but are instead being politically manipulative, there is a First Amendment concern that the FCC will do so in a way that is not viewpoint-neutral.  As the government, the FCC must remain neutral and not punish speakers based on viewpoint.  The FCC’s definition of “in good faith” cannot be so subjective that it leaves room for the FCC to remove Section 230’s liability protections only for those websites with left-leaning propensities.  That would also present a First Amendment problem, and websites could challenge the FCC’s definition facially or bring an as-applied challenge if they believe they are being unfairly targeted for removal of Section 230’s immunities.

In sum, there is a decent argument that the FCC may redefine “in good faith” under Section 230 of the Communications Decency Act to exclude Twitter’s flagging of content, but perhaps the law, as established by Congress and interpreted by the courts, does not leave room for the FCC to do so.  In the event the FCC can redefine who is a publisher of information — and thus subject to liability and now excluded from Section 230’s protections — any new definition of “in good faith” may present serious First Amendment problems if the new definition gives the FCC too much discretion to selectively remove Section 230’s protections, even if simply repealing Section 230 does not violate the First Amendment.