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WASHINGTON, D.C., May 28, 2020 (LifeSiteNews) — President Donald Trump signed an executive order today suggesting the federal government will begin to interpret much more narrowly the legal immunities social media companies currently enjoy.
Section 230 of the Communications Decency Act protects platforms like Twitter and Facebook from being sued for what their users post on the sites.
Whereas news agencies and other publishers can face lawsuits for publishing libelous claims, social media platforms are currently exempt from such action because the law classifies them as platforms rather than publishers.
Trump’s executive order (see full text below) says “the scope of that immunity should be clarified: the immunity 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.”
“The growth of online platforms in recent years raises important questions about applying the ideals of the First Amendment to modern communications technology,” Trump wrote. “Today, many Americans follow the news, stay in touch with friends and family, and share their views on current events through social media and other online platforms. As a result, these platforms function in many ways as a 21st century equivalent of the public square.”
Terry Schilling, executive director of the American Principles Project, agreed that “Big Tech platforms” have “become the digital replacement to the physical public square.”
“Given that reality,” he said, “and given the political and cultural influence that these multinational corporations wield, it is of utmost importance to defend free speech values and to protect the essence of democracy itself by encouraging the platforms to observe First Amendment principles and allow the free-flowing exchange of ideas.”
“Platforms have speech rights, too. Twitter, for example, is well within its rights to censor or otherwise restrict a user’s speech — even the President of the United States,” Schilling explained.
“But if Twitter wants to engage in that censorship, they should not be receiving a special subsidy from the federal government in the form of immunity from civil liability. Those advocating for a change to Section 230 want to establish a quid pro quo — if the American people are going to insulate these multinational corporations from legal liability, they need to at least provide a public square in return.”
The executive order continues, “Section 230 was not intended to allow a handful of companies to grow into titans controlling vital avenues for our national discourse under the guise of promoting open forums for debate, and then to provide those behemoths blanket immunity when they use their power to censor content and silence viewpoints that they dislike.”
The order also directs the heads of federal agencies to determine how much taxpayer money their agencies spend advertising and contracting with tech giants.
The Department of Justice will then “review the viewpoint-based speech restrictions imposed by each online platform identified in the report” and “assess whether any online platforms are problematic vehicles for government speech due to viewpoint discrimination, deception to consumers, or other bad practices.”
Trump has criticized anti-conservative bias on social media several times this week, after Twitter flagged a post of his with a “get the facts” label. Trump’s tweet had warned of the likelihood of voting fraud through mail-in ballots, but the label added by Twitter linked to text and articles in the liberal media which contradicted his claims.
Trump has accused Twitter of “interfering in the 2020 Presidential Election” and social media platforms generally of silencing conservative voices. He warned social media giants that his administration could “strongly regulate, or close them down.”
….Twitter is completely stifling FREE SPEECH, and I, as President, will not allow it to happen!
— Donald J. Trump (@realDonaldTrump) May 26, 2020
….happen again. Just like we can’t let large scale Mail-In Ballots take root in our Country. It would be a free for all on cheating, forgery and the theft of Ballots. Whoever cheated the most would win. Likewise, Social Media. Clean up your act, NOW!!!!
— Donald J. Trump (@realDonaldTrump) May 27, 2020
Twitter has now shown that everything we have been saying about them (and their other compatriots) is correct. Big action to follow!
— Donald J. Trump (@realDonaldTrump) May 27, 2020
Big Tech is doing everything in their very considerable power to CENSOR in advance of the 2020 Election. If that happens, we no longer have our freedom. I will never let it happen! They tried hard in 2016, and lost. Now they are going absolutely CRAZY. Stay Tuned!!!
— Donald J. Trump (@realDonaldTrump) May 28, 2020
Florida congressman Matt Gaetz announced on his regular podcast yesterday that he is working on legislation that would remove Section 230’s legal immunity that social media companies currently enjoy,
“I am currently working with my Republican colleagues on the Judiciary Committee to craft legislation to say that if you’re going to opine as to the truth or falsity of that which is put on your platform, for the sake of its viewers, you don’t get the protection of Section 230. You are not a platform. You are doing something else, you are editorializing,” Gaetz said.
Facebook CEO Mark Zuckerberg has responded to the controversy surrounding Twitter’s fact-checking of Trump by saying he believes that Facebook and other private platform companies “shouldn’t be the arbiter of truth of everything that people say online.” Zuckerberg told Fox News that Facebook has a different policy on fact-checking from Twitter’s.
Last week, Facebook punished conservative education organization PragerU with “reduced distribution and other restrictions” for “repeated sharing of false news” and “misinformation” when PragerU released a video disputing environmentalists’ claims about the decline of polar bear populations. The social media giant suppressed a quotation from St. Augustine last year, and in 2018, a Facebook spokeswoman admitted to suppressing and demonetizing posts deemed “false” by “our third-party fact-checkers.”
Niamh Uí Bhriain of Life Institute in Ireland told LifeSiteNews that Google and Facebook had both openly and covertly interfered in the Irish 2018 abortion referendum, causing significant damage to the pro-life message.
“Google openly banned online advertising, even on YouTube, when it was widely understood that this would only really damage the pro-life side in the referendum, since the establishment media had been part of the abortion campaign for years. It meant that crucially important messages went unheard by voters,” Niamh explained.
“After the vote it emerged that Google had actually also operated a blacklist of terms such as 'abortion and Down Syndrome' and 'abortion is wrong' – to manipulate searches so that Google would decide what voters saw when they used those search terms,” she said.
“Facebook has a long history of refusing adverts and limiting the reach of pro-life pages – but it also employs so-called 'fact checkers' to adjudicate on pro-life messages, even when those fact-checkers have shown themselves to be absolutely biased,” she continued.
“In Ireland, Facebook has employed The Journal to check facts, even though that platform went so far as to change its own previous findings in the abortion referendum to suit the Yes campaign. It's high time Google, Facebook and Twitter were called to account – these Big Tech companies have a monopoly on social media communications and are using it to censor conservatives and pro-life messages.”
“While some may quibble with the details of the executive order, especially with its deference to federal agencies, the main takeaway is that this will set an important precedent for future policymaking: If market-dominant platforms aren’t interested in behaving like a public square with regard to content moderation policies, they shouldn’t receive any sort of special deal from the federal government — period,” concluded Schilling.
Executive Order on Preventing Online Censorship
By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered as follows:
Section 1. Policy. Free speech is the bedrock of American democracy. Our Founding Fathers protected this sacred right with the First Amendment to the Constitution. The freedom to express and debate ideas is the foundation for all of our rights as a free people.
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. This practice is fundamentally un-American and anti-democratic. When large, powerful social media companies censor opinions with which they disagree, they exercise a dangerous power. They cease functioning as passive bulletin boards, and ought to be viewed and treated as content creators.
The growth of online platforms in recent years raises important questions about applying the ideals of the First Amendment to modern communications technology. Today, many Americans follow the news, stay in touch with friends and family, and share their views on current events through social media and other online platforms. As a result, these platforms function in many ways as a 21st century equivalent of the public square.
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.
As President, I have made clear my commitment to free and open debate on the internet. Such debate is just as important online as it is in our universities, our town halls, and our homes. It is essential to sustaining our democracy.
Online platforms are engaging in selective censorship that is harming our national discourse. 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.
Twitter now selectively decides to place a warning label on certain tweets in a manner that clearly reflects political bias. As has been reported, Twitter seems never to have placed such a label on another politician’s tweet. As recently as last week, Representative Adam Schiff was continuing to mislead his followers by peddling the long-disproved Russian Collusion Hoax, and Twitter did not flag those tweets. Unsurprisingly, its officer in charge of so-called ‘Site Integrity’ has flaunted his political bias in his own tweets.
At the same time online platforms are invoking inconsistent, irrational, and groundless justifications to censor or otherwise restrict Americans’ speech here at home, several online platforms are profiting from and promoting the aggression and disinformation spread by foreign governments like China. One United States company, for example, created a search engine for the Chinese Communist Party that would have blacklisted searches for “human rights,” hid data unfavorable to the Chinese Communist Party, and tracked users determined appropriate for surveillance. It also established research partnerships in China that provide direct benefits to the Chinese military. Other companies have accepted advertisements paid for by the Chinese government that spread false information about China’s mass imprisonment of religious minorities, thereby enabling these abuses of human rights. They have also amplified China’s propaganda abroad, including by allowing Chinese government officials to use their platforms to spread misinformation regarding the origins of the COVID-19 pandemic, and to undermine pro-democracy protests in Hong Kong.
As a Nation, we must foster and protect diverse viewpoints in today’s digital communications environment where all Americans can and should have a voice. We must seek transparency and accountability from online platforms, and encourage standards and tools to protect and preserve the integrity and openness of American discourse and freedom of expression.
Sec. 2. Protections Against Online Censorship. (a) It is the policy of the United States to foster clear ground rules promoting free and open debate on the internet. Prominent among the ground rules governing that debate is the immunity from liability created by section 230(c) of the Communications Decency Act (section 230(c)). 47 U.S.C. 230(c). It is the policy of the United States that the scope of that immunity should be clarified: the immunity 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. As the title of section 230(c) makes clear, 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. In particular, 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 vision of the Congress that the internet is a “forum for a true diversity of political discourse.” 47 U.S.C. 230(a)(3). The limited protections provided by the statute should be construed with these purposes in mind.
In particular, 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.” It is the policy of the United States to ensure that, to the maximum extent permissible under the law, this provision is not distorted to provide liability protection for online platforms that — far from acting in “good faith” to remove objectionable content — instead engage in deceptive or pretextual actions (often contrary to their stated terms of service) to stifle viewpoints with which they disagree. Section 230 was not intended to allow a handful of companies to grow into titans controlling vital avenues for our national discourse under the guise of promoting open forums for debate, and then to provide those behemoths blanket immunity when they use their power to censor content and silence viewpoints that they dislike. 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. 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.
(b) To advance the policy described in subsection (a) of this section, 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. In addition, 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:
(i) the interaction between subparagraphs (c)(1) and (c)(2) of section 230, in particular to clarify and determine 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;
(ii) 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.
Sec. 3. Protecting Federal Taxpayer Dollars from Financing Online Platforms That Restrict Free Speech. (a) The head of each executive department and agency (agency) shall review its agency’s Federal spending on advertising and marketing paid to online platforms. Such review shall include the amount of money spent, the online platforms that receive Federal dollars, and the statutory authorities available to restrict their receipt of advertising dollars.
(b) Within 30 days of the date of this order, the head of each agency shall report its findings to the Director of the Office of Management and Budget.
(c) The Department of Justice shall review the viewpoint-based speech restrictions imposed by each online platform identified in the report described in subsection (b) of this section and assess whether any online platforms are problematic vehicles for government speech due to viewpoint discrimination, deception to consumers, or other bad practices.
Sec. 4. Federal Review of Unfair or Deceptive Acts or Practices. (a) It is the policy of the United States that large online platforms, such as Twitter and Facebook, as the critical means of promoting the free flow of speech and ideas today, should not restrict protected speech. The Supreme Court has noted that social media sites, as the modern public square, “can provide perhaps the most powerful mechanisms available to a private citizen to make his or her voice heard.” Packingham v. North Carolina, 137 S. Ct. 1730, 1737 (2017). Communication through these channels has become important for meaningful participation in American democracy, including to petition elected leaders. These sites are providing an important forum to the public for others to engage in free expression and debate. Cf. PruneYard Shopping Center v. Robins, 447 U.S. 74, 85-89 (1980).
(b) 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. The White House will submit such complaints received to the Department of Justice and the Federal Trade Commission (FTC).
(c) The FTC shall consider taking action, as appropriate and consistent with applicable law, to prohibit unfair or deceptive acts or practices in or affecting commerce, pursuant to section 45 of title 15, United States Code. Such unfair or deceptive acts or practice may include practices by entities covered by section 230 that restrict speech in ways that do not align with those entities’ public representations about those practices.
(d) For large online platforms that are vast arenas for public debate, including the social media platform Twitter, the FTC shall also, consistent with its legal authority, consider whether complaints allege violations of law that implicate the policies set forth in section 4(a) of this order. The FTC shall consider developing a report describing such complaints and making the report publicly available, consistent with applicable law.
Sec. 5. State Review of Unfair or Deceptive Acts or Practices and Anti-Discrimination Laws. (a) The Attorney General shall establish a working group regarding the potential enforcement of State statutes that prohibit online platforms from engaging in unfair or deceptive acts or practices. The working group shall also develop model legislation for consideration by legislatures in States where existing statutes do not protect Americans from such unfair and deceptive acts and practices. The working group shall invite State Attorneys General for discussion and consultation, as appropriate and consistent with applicable law.
(b) Complaints described in section 4(b) of this order will be shared with the working group, consistent with applicable law. The working group shall also collect publicly available information regarding the following:
(i) increased scrutiny of users based on the other users they choose to follow, or their interactions with other users;
(ii) algorithms to suppress content or users based on indications of political alignment or viewpoint;
(iii) differential policies allowing for otherwise impermissible behavior, when committed by accounts associated with the Chinese Communist Party or other anti-democratic associations or governments;
(iv) reliance on third-party entities, including contractors, media organizations, and individuals, with indicia of bias to review content; and
(v) acts that limit the ability of users with particular viewpoints to earn money on the platform compared with other users similarly situated.
Sec. 6. Legislation. The Attorney General shall develop a proposal for Federal legislation that would be useful to promote the policy objectives of this order.
Sec. 7. Definition. For purposes of this order, the term “online platform” means any website or application that allows users to create and share content or engage in social networking, or any general search engine.
Sec. 8. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:
(i) the authority granted by law to an executive department or agency, or the head thereof; or
(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.