My Galley by CJR Interview on Trump’s Anti-Section 230 Executive Order

At Galley by CJR, I did a one-hour real-time virtual “interview” with Mathew Ingram on the topic of “Trump vs. Social Media.” For background, you may want to review my 5,800 word blog post on Trump’s anti-Section 230 Executive Order (EO). The interview:

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Mathew Ingram

…I’d be interested in your thoughts on…the executive order. Does it contain any actual legal steps that Trump could take or force others to take, or is it mostly just a lot of smoke and mirrors and posturing designed to frighten the platforms into submission?

Eric Goldman

The Executive Order had three primary audiences:

1) Internet companies, to discourage them from editorially intervening on “conservative” content at peril of being attacked mercilessly and threatened with regulatory retribution.

2) his voters, to claim that he is fighting to protect them from those who seek to disempower them (and, as a bonus, perhaps they might feel moved to donate to his reelection campaign…), and

3) the media, to get them to divert their attention towards his preferred agenda and away from other major issues facing our country, such as the 100,000+ Americans who have died of COVID-19–many of whom would still be alive if the federal government had better managed its response.

Even if the EO has no actual legal effect–and it does very little directly–President Trump has likely accomplished his goals on all three of these fronts.

Mathew Ingram

Thanks, Eric. That’s a good summary. In terms of actual legal effects, do you expect the order to have any? It seems to make a whole bunch of statements about Section 230 and how it should apply, which appear to be questionable at best — can the president just reinterpret a law like that? Also, it seems to want to get the FCC to do something that it doesn’t really have the jurisdiction to do. Am I wrong about that?

Eric Goldman

In general, Congress makes the laws and the executive branch implements them. The executive branch can’t override Congress’ statutory language. It also can’t definitively interpret Congress’ laws unless Congress delegates authority to do so. Otherwise, the courts have the final authority to interpret statutes.

As a result, much of the EO tries to figure out how the executive branch can undermine Section 230 without asking Congress to amend it. Because it really can’t, the EO tries three workarounds.

First, the EO makes some interpretations of the statute that the executive branch nominally must honor. However, if any executive agency does actually act on these interpretations, it can be challenged in court and the EO’s interpretation will almost certainly fail there.

Second, it orders federal agencies to report on how they are spending their online ad dollars, and it orders the reports submitted to last year’s “Tech Bias Reporting” tool (most of which are likely dubious) to other agencies for their possible review. This is something the executive branch can do, but these minor acts don’t have any immediate material consequences.

Third, it asks independent agencies–the FTC, the FCC, the Department of Justice–to do stuff. My understanding is that the White House can’t *force* any of these agencies to do anything. Having said that, it looks like the DOJ asked to be named in the EO several times, so it might be eager to help. The FTC is likely going to be skeptical of the request. I’m not sure what the FCC will do.

Simply by delegating work to the FTC, the FCC, and the DOJ, the EO sets up the White House’s future narrative. If the agencies decline, or if they reach an adverse result, the White House can now blame them for failing to do its bidding or being part of the anti-Trump conspiracy. If they reach a favorable result, then the White House can claim credit for their work, even if the EO itself did nothing to achieve that result. This diffusion of blame, with the option of claiming credit for success, is a hallmark of the Trump administration and his companies. It’s the Tom Sawyer approach to management.

Mathew Ingram

Thanks, Eric. In many ways, this seems like an expansion or elaboration of the EO that was issued a year ago, and as far as I know that produced a lot of nothing. But to get back to your original point, it seems obvious this was designed in part to threaten social-media platforms like Facebook and Twitter. And Mark Zuckerberg apparently had a phone call with Trump recently, although it’s not clear what was said. Do you think these companies will take the path of least resistance, or does it seem like Twitter at least is willing to put up a bit of a fight? And will that ultimately achieve anything?

Eric Goldman

Last summer, there was discussion about an EO, but it was never issued. I believe this EO recycles part of the draft prepared then. It clearly contains new stuff as well, including direct responses to Twitter’s wrist-slap of Trump last week.

I’m not sure yet how Internet companies are going to respond to the events of the last week. There is no way to win here. By their nature, content moderation decisions make winners and losers, and the losers of those decisions are typically sore about the outcome. So if the Internet companies choose to become more aggressive, there will be plenty of people upset with them. But that’s also true if the Internet companies become less aggressive. Plus, at this point, every political candidate is ready to pounce on the Internet companies to claim that moderation of the politician’s content was designed to sway the pending election. At this point, I imagine many Internet companies are gripped, and perhaps paralyzed, by fear.

One more thing to note: the “conservative” media, and the EO, specifically called out one Twitter content moderation professional as being responsible for Twitter’s decision to fact-check the President’s tweets. This publicity led to vicious attacks on the individual, including credible threats to his safety. I imagine most content moderation professionals are now scared that their well-meaning on-the-job decisions will spur unwanted attention that will upend their personal lives.

Mathew Ingram

Thanks, Eric. This seems like just another front in what appears to be an ongoing battle to dismantle, amend, or otherwise meddle with Section 230. Do you think Trump and his supporters in Congress will be able to do this — or do they even really want to? Or is threatening the social platforms with things like the EO likely to accomplish what they wanted to accomplish anyway, without the need to amend anything?

Eric Goldman

As I said earlier, Trump has already accomplished all of his major objectives. Honestly, I doubt Trump really cares about Section 230 as a policy matter or even understands it. In particular, he may not realize how any Section 230 reform may very well put his cherished Twitter account in significant jeopardy.

As for what happens in Congress, a growing number of members–including some powerful Senators–have spoken in opposition to Section 230. The opponents include both Democrats and Republicans, so this is a rare area of potential bipartisan consensus. To that point: Biden, the Democratic presidential nominee, last summer said “Section 230 should be revoked, immediately.” So calls to revoke Section 230 aren’t just a Trump or Republican thing.

It will be interesting to see if any Section 230 reform proposal, including the pending EARN IT Act, gains traction. It’s an exceptionally dangerous time for Section 230.