The New Executive Order on Social Media Is Primarily About Consumer Protection Laws, Not “Publisher” Status

(Originally posted at the Yale Journal on Regulation’s “Notice and Comment” Blog.)

By the time he actually signed it, President Trump’s “Executive Order on Preventing Online Censorship” was no surprise. His complaints about social media platforms, and his calls for Congress to rescind Internet platform companies’ immunity under Section 230 of the Communications Decency Act, are long-familiar refrains. More recently, he practically shouted his intentions to take unilateral action. And in the final days of the process, a draft copy of the order was widely circulated online.

But perhaps because of the prolonged public debates of the social media “fairness doctrine” issue in the months, days, and hours leading up to the order’s signing, there seems to be some misunderstanding of precisely what legal mechanism the order is trying to use in order to punish the social media platforms that attracted Trump’s ire.

Leading news organizations, such as the New York Times, are focusing on the order’s assertion that social media companies should be treated as “publishers,” not neutral platforms. This refers to Section 230(c)(1) of the 1996 statute, which provides that “No 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.” Depriving social media companies of “publisher” status could open them up to the limited but significant liability that publishers bear for the content they publish.

In the statute, Section 230(c)(1)’s legislative removal of “publisher” status is followed by Section 230(c)(2)’s legislative grant of immunity for civil liability for certain editorial activities: “No provider or user of an interactive computer service shall be held liable on account of … any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable[.]”

The first provision, Section 230(c)(1) grant of non-“publisher” status, has been at the center of political fights over social media companies, and it was the centerpiece of this week’s widely discussed draft executive order: specifically, the draft asserted that Section 230(c)(1)’s “publisher” status was implicitly qualified by Section 230(c)(2)’s civil-immunity provision. That legal argument has already been widely criticized, and rightly so: it’s clearly wrong. As the Electronic Frontier Foundation emphasized this week, Section 230(c)(1) and Section 230(c)(2) are “two separate and independent protections” for Internet platform companies.

But critics of Trump’s executive order need to recognize that the final version of the executive order actually deemphasized the Section 230(c)(1) argument, taking what was a nearly page-long discussion in the draft order and reducing it to just a few sentences in a sub-sub-section of the final order.

Instead, the final executive order now makes Section 230(c)(2), not Section 230(c)(1)’s “publisher” rule, the centerpiece of President’s new social media policy. The order asserts that social media companies’ editorial activities are often not “good faith” efforts to remove inappropriate content, but rather “deceptive or pretextual actions (often contrary to their stated terms of service) to stifle viewpoints with which they agree.”

And the legal mechanism for its implementation is also slightly more nuanced that many commentators have highlighted. So far, attention is being paid mostly to the order’s direction to the Secretary of Commerce (via the National Telecommunications and Information Administration) to petition the Federal Communications Commission for a new rulemaking to specify what editorial activities do or do not merit civil liability protection under Section 230(c)(2). The Commerce/NTIA/FCC provision is important, but it is only one part of the order’s regulatory enforcement mechanism.

The other part of the enforcement mechanism — perhaps the more important part — is Section 4 of the order, which directs the Federal Trade Commission to “consider taking action” to deem particular Internet platform companies’ editorial practices as “unfair or deceptive acts or practice[s]” because they “restrict speech in ways that do not align with those entities’ public representations about those practices.”

This directive to the FTC dovetails with the order’s reinterpretation of Section 230(c)(2)’s civil immunity provision: if a social-media company’s editorial practices fall outside of Section 230(c)(2)’s protection, then the company would be liable for violation of consumer protection laws, such as federal law’s aforementioned “unfair or deceptive acts or practices” standard, and also the State consumer protection laws to which the order’s Section 5 alludes.

And while it is fair to ask whether the long-independent FTC and FCC will ever actually take the actions that President Trump wants them to take, it is important to keep in mind that President Trump’s attempt to reinterpret Section 230(c)(2) could have an impact even without the federal agencies’ help. Private plaintiffs, and state attorneys general, could bring lawsuits in state or federal court premised upon the same substantive legal theories announced by this order. If anything, President Trump’s amplification of this legal theory about Section 230(c)(2), through an executive order, makes such lawsuits at least somewhat more likely.

Of course, the lawsuits may well fail. The order’s interpretation of Section 230(c)(2)’s civil immunity provision, though less flagrantly wrong than its interpretation of Section 230(c)(1)’s “publisher” provision, seems manifestly unreasonable — the latest example of an impatient President and his administration, dissatisfied with legislative inaction, suddenly finding vast new regulatory powers in old statutes. President Trump’s addition to that list seems likely to meet a similar fate — ironically, in a judicial branch increasingly populated by judges (of President Trump’s own choosing) who are skeptical of such broad and novel assertions of administrative power. Still, even unsuccessful lawsuits can have real effects; and, more broadly, President Trump’s particular tactics here, like his use of emergency powers on immigration, might inspire future presidents in pursuit of their own particular regulatory goals.

But in all of this, the key point is that these will be arguments about Section 230(c)(2), not about Section 230(c)(1)’s “publisher status” — again, as EFF emphasizes, these are “two separate and independent protections.” The “publisher” issue, though previously at the center of political and legal debates over social media companies, is not at the center of this particular executive order. At some point in the process between the draft order that floated online and the finalized order that President Trump signed, the White House relegated the “publisher” issue to practically an afterthought; a sideshow.

Adam J. White is a resident scholar at the American Enterprise Institute and director of George Mason University’s C. Boyden Gray Center for the Study of the Administrative State.