UPDATE: On the afternoon of May 28, 2020, the President signed the executive order concerning CDA Section 230. A copy/link to the order has not yet been posted on the White House’s website.
According to news reports, the Trump Administration (the “Administration”) is drafting and the President is set to sign an executive order to attempt to curtail legal protections under Section 230 of the Communications Decency Act (“Section 230” or the “CDA”). Section 230 protects online providers in many respects concerning the hosting of user-generated content and bars the imposition of distributor or publisher liability against a provider for the exercise of its editorial and self-regulatory functions with respect to such user content. In response to certain moderation efforts toward the President’s own social media posts this week, the executive order will purportedly seek to remedy what the President claims is the social media platforms’ “selective censorship” of user content and the “flagging” of content that is inappropriate, “even though it does not violate any stated terms of service.”
A purported draft of the executive order was leaked online. If issued, the executive order would, among other things, direct federal agencies to limit monies spent on social media advertising on platforms that violate free speech principles, and direct the White House Office of Digital Strategy to reestablish its online bias reporting tool and forward any complaints to the FTC. The draft executive order suggests that the FTC use its power to regulate deceptive practices against those platforms that fall under Section 230 to the extent they restrict speech in ways that do not match with posted terms or policies. The order also would direct the DOJ to establish a working group with state attorneys general to study how state consumer protection laws could be applied to social media platform’s moderation practices. Interestingly, the executive order draft would also direct the Commerce Department to file a petition for rulemaking to the FCC to clarify the conditions when an online provider removes “objectionable content” in good faith under the CDA’s Good Samaritan provision (which is a lesser-known, yet important companion to the better-known “publisher” immunity provision).
Given that the CDA is a statute passed by Congress and interpreted by the courts, it is unlikely that, without an accompanying piece of legislation, one executive order could overturn Congress’s mandate and decades of judicial opinions broadly interpreting the scope of CDA immunity. Putting aside the expected legal challenges to such an order, the President’s action can be seen as the latest salvo against Section 230: in 2018 FOSTA was passed to limit the CDA’s scope for certain sex trafficking content and since then, members of both parties in Washington, though perhaps for different reasons, have suggested the CDA should be reined in further (including the presumptive Democratic nominee, Joe Biden). Given that the CDA is likely the most important law governing internet speech and e-commerce and the online ecosystem, we will closely be monitoring the ongoing debate surrounding the CDA and in what manner Congress or the Administration might seek to curtail its scope or regulate some of the excesses of the online world (presumably without damaging the vibrancy of the internet). One wonders how (or if) this balancing act could be achieved.