Executive order turns the 1st Amendment on its head

How interesting that the Trump administration has become a virtual law school class, bringing heretofore obscure provisions in the U.S. Constitution into mainstream conversations or putting a new spin on well-known ones. Before Donald Trump became president and refused to divest himself of personal businesses from which he profits while in office, few had even heard of the emoluments clause of the U.S. Constitution.

A rebranded version of the 10th Amendment, which reserves all powers to the state not expressly delegated to the federal government, has emerged in the Trump administration to divest the states' ability to impose net neutrality regulations that would bar blocking or throttling of internet traffic or to exercise virtually any control over placement of wireless antennas

Now the Trump administration has repurposed the First Amendment. Even those of us who are many years away from being bleary eyed law school students will recall that the First Amendment protects citizens from government restrictions on free speech. Not the other way around. Undaunted, in late May, President Trump signed the Executive Order on Preventing Online Censorship reportedly in response to Twitter's decision to flag two tweets as potentially misleading and to include a fact checking link. The executive order explicitly names Twitter and complains that it "selectively decides to place a warning label on certain tweets" of an unnamed politician, while not flagging statements by Rep. Adam Shiff about the "long-disproved Russian Collusion Hoax."

The executive order targets the 1996 Communications Decency Act, which distinguished operators of online platforms from "publishers" such as newspapers and gave them broad immunity from liability for the third-party content that appeared on those platforms. Section 230 states that "[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider."

Despite this immunity, the statute allows platforms to invoke a "Good Samaritan" provision to flag or even remove material that the platform in good faith considers to be "obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable." Twenty years of case law has explored the edges of this provision and how much editing or control the platform could exercise without crossing the line to becoming a "publisher" and losing the protection of Section 230.

Now, with a six-page executive order, President Trump attempts to rewrite Section 230 by directing various federal agencies, including the Federal Communications Commission, Federal Trade Commission, and the National Telecommunications and Information Administration to review the scope of immunity for online platforms. The directive to the Department of Justice is the most astonishing of all. The executive order directs DOJ to review "viewpoint-based speech restrictions imposed by each online platform ... and assess whether any online platforms are problematic vehicles for government speech due to viewpoint discrimination, deception to consumers, or other bad practices."

In other words, President Trump wants to turn the First Amendment on its head to protect government speech by threatening to remove Section 230 immunity for online platforms that flag, remove or fact-check tweets and posts from him or his administration officials. This is, of course, the opposite of the Founding Fathers' intent. In the seminal case of New York Times v. Sullivan, 376 U.S. 254, 270 (1964), the U.S. Supreme Court held that "debate on public issues should be uninhibited, robust, and wide-open, and it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials."

In Sullivan, a city commissioner who supervised the police department sued the New York Times for publishing an ad that contained some inaccurate statements about poor treatment of black students protesting segregation. The Supreme Court held that even false statements about public officials did not constitute defamation unless the speaker had actual malice against the official. Actual malice requires "knowledge that it [the statement] was false or with reckless disregard of whether it was false or not."

The flagged tweets that unleashed President Trump's ire against Twitter and the executive order stated falsely that mail-in ballots would lead to widespread voter fraud. Twitter included a statement beneath each tweet, "Get the facts about mail-in ballots," and provided a link to a fact check page with further links and summaries of news articles debunking the assertion.

Let's pretend for a moment that the First Amendment protects government speech, and the test for traditional publishers' liability for "interfering" with the government's speech apply to Twitter. President Trump's tweets would not pass muster as protected speech under Sullivan's actual malice standard. The claim that mail-in ballots cause widespread voter fraud are demonstrably untrue according to multiple objective authorities. President Trump either knowingly made false statements in his tweets, or displayed reckless disregard for their falsity.

Twitter was right to invoke the "Good Samaritan" provisions of Section 230 to flag President Trump's tweets as possibly misleading. In fact, it could have gone even further and removed the false statements. Now Trump wants to remove the ability of online platforms like Twitter even to question the truthfulness of government officials' statements.

Ironically, while President Trump purports that his executive order will make online platforms more open and unbiased, it may have the opposite effect. Online platforms have often turned a blind eye to wild conspiracy theories and false statements because they knew they had immunity under Section 230. They will be far more likely to monitor and flag, or remove, false, defamatory and otherwise objectionable content if they fear liability because they lose that immunity. 