President Trump on Thursday signed an executive order aimed at increasing the ability of the government to regulate social media platforms.

“In a country that has long cherished the freedom of expression, we cannot allow a limited number of online platforms to hand pick the speech that Americans may access and convey on the internet,” the president stated in a prepared statement.

Citing the First Amendment, and the protection of the rights therein, the president stated that online platforms engage in what he called “selective censorship,” including blacklisting and shadow banning – the act of blocking or partially blocking a user or their content from an online community so that it will not be readily apparent to the user that they have been banned. For instance, shadow banned comments posted to a blog or media site will not be visible to other persons accessing that site from their computers.

“Twitter, Facebook, Instagram, and YouTube wield immense, if not unprecedented, power to shape the interpretation of public events; to censor, delete, or disappear information; and to control what people see or do not see,” said Trump.

The president reiterated his commitment to what he called “free and open debate on the internet,” Which he said is essential to sustaining American democracy.

“Online platforms are engaging in selective censorship that is harming our national discourse,” said Trump. “Tens of thousands of Americans have reported, among other troubling behaviors, online platforms flagging content as inappropriate, even though it does not violate any stated terms of service; making unannounced and unexplained changes to company policies that have the effect of disfavoring certain viewpoints;
and deleting content and entire accounts with no warning, no rationale, and no recourse.”

Protections Against Online Censorship

Section 2 of the executive order clearly addresses the immunity from liability created by section 230(c) of the Communications Decency Act (section 230(c)). 47 U.S.C. 230(c).
The president stated that the scope of the immunity should be clearly defined, and “should not extend beyond its text and purpose to provide protection for those who purport
to provide users a forum for free and open speech, but in reality use their power over a vital means of communication to engage in deceptive or pretextual actions stifling
free and open debate by censoring certain viewpoints.”

Section 230(c) was designed to address early court decisions holding that, if an online platform restricted access to some content posted by others, it would thereby become
a “publisher” of all the content posted on its site for purposes of torts such as defamation.
The president argued that the provision provides limited liability “protection” to a provider of an interactive computer service (such as an online platform) that engages in “Good Samaritan’ blocking” of harmful content.

Specifically, the Congress sought to provide protections for online platforms that attempted to protect minors from harmful content and intended to ensure that such providers would not be discouraged from taking down harmful material.

The provision was also intended to further the express the vision of the Congress that the internet is a “forum for a true diversity of political discourse.”

Subparagraph (c)(2) expressly addresses protections from “civil liability” and specifies that an interactive computer service provider may not be made liable “on account of” its decision in “good faith” to restrict access to content that it considers to be “obscene, lewd, lascivious, filthy, excessively violent, harassing or otherwise objectionable.”

According to the president, online platforms, far from acting in good faith, hide under an arbitrarily expanded interpretation of this policy, to stifle viewpoints with which they disagree.

“When an interactive computer service provider removes or restricts access to content and its actions do not meet the criteria of subparagraph (c)(2)(A), it is engaged in editorial conduct,” Trump stated.

“It is the policy of the United States that such a provider should properly lose the limited liability shield of subparagraph (c)(2)(A) and be exposed to liability like any traditional editor and publisher that is not an online provider,” he added.

In order to advance the policy of free and open debate on the internet, Trump directed that:

1. all executive departments and agencies should ensure that their application of section 230(c) properly reflects the narrow purpose of the section and take all appropriate actions in this regard.
2. Within 60 days of the date of this order, the Secretary of Commerce (Secretary), in consultation with the Attorney General, and acting through the National Telecommunications and Information Administration (NTIA), shall file a petition for rulemaking with the Federal Communications Commission (FCC) requesting that the FCC expeditiously propose regulations to clarify:
3. the circumstances under which a provider of an interactive computer service that restricts access to content in a manner not specifically protected by subparagraph (c)(2)(A) may also not be able to claim protection under subparagraph (c)(1), which merely states that a provider shall not be treated as a publisher or speaker for making third-party content available and does not address the provider’s responsibility for its own editorial decisions;
4. the conditions under which an action restricting access to or availability of material is not “taken in good faith” within the meaning of subparagraph (c)(2)(A) of section 230, particularly whether actions can be “taken in good faith” if they are:

(A) deceptive, pretextual, or inconsistent with a provider’s terms of service; or

(B) taken after failing to provide adequate notice, reasoned explanation, or a meaningful opportunity to be heard; and

(iii) any other proposed regulations that the NTIA concludes may be appropriate to advance the policy described in subsection (a) of this section.

Protecting Federal Taxpayer Dollars from Financing Online Platforms That Restrict Free Speech.

Trump directed the head of each executive department and agency to review its agency’s Federal spending on advertising and marketing paid to online platforms.

In May of 2019, the White House launched a Tech Bias Reporting tool to allow Americans to report incidents of online censorship. In just weeks, the White House received over 16,000 complaints of online platforms censoring or otherwise taking action against users based on their political viewpoints.