Op-Ed: Trump's latest executive order attacks free speech

President Trump holds up a copy of the New York Post.

By Erwin Chemerinsky

May 29, 2020 1:45 PM PT

Authoritarian rulers inevitably try to silence their critics, and President Trump did just that in his clearly illegal executive order that seeks to limit the protections social media companies have from being held liable for the content published on their platforms. I hope that we have not become so desensitized by Trump’s constant misconduct as president that we have lost the ability to be outraged and frightened by something that strikes at the very heart of freedom of speech.

The executive order signed Thursday was meant to retaliate against Twitter for calling attention to two “potentially misleading” Trump tweets. On Tuesday, Twitter had applied fact-checking to the tweets in question, in which Trump claimed that mail-in ballots would lead to widespread voter fraud. The company then appended a message to the tweets in a format it uses to combat misinformation or unverified claims: “Get the facts about mail-in ballots.” Those messages linked to a fact-check page that Twitter had created that was filled with further links and summaries of news articles debunking the assertion.

Trump angrily accused Twitter of censorship. He said that if Twitter continued fact-checking his tweets in the same manner, he would use the power of the federal government to rein it in or even shut it down. He tweeted: “Big action to follow!” Two days later, he issued the order that supposedly empowers the federal government to penalize companies such as Facebook or Twitter for suspending users or labeling or removing content.

Specifically, the executive order seeks to limit the protections that social media companies have under Section 230 of the Communications Decency Act, which says they cannot be held liable for content that is posted on their sites. Even for Trump, this is a new low. It is using the powers of the presidency to try to punish and intimidate Twitter for its speech critical of Trump.

Twitter in no way censored the president. It engaged in its own speech by providing readers with further information. It is truly Orwellian that Trump declared he was acting to protect free speech when he was retaliating against speech and seeking to expand the liability of media companies.

Trump’s action is illegal. As president he does not have the power to change the meaning of a federal statute.

Section 230 is very clear. It says: “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.” If a company isn’t the publisher of information, it is not liable for the content of that information.

Trump’s executive order tries to countermand Section 230 when it says that social media companies “engaged in editorial conduct” may forfeit any safe-harbor protection and then could be held liable for what is on their platforms.

To be sure, Section 230 has been controversial in providing social media companies with a broad shield from liability for anything that is posted on their sites. Many believe that it has led to the widespread dissemination of false information. For example, Trump repeatedly has used Twitter to spread falsehoods, such as this week repeating a baseless allegation against MSNBC host and former Florida Rep. Joe Scarborough regarding the death of a congressional staffer years ago. Many have called for reforms for Section 230, but that is for Congress to do; it cannot be done by presidential fiat.

Section 230 has been crucial in creating a place for speech and a marketplace of ideas, for good or for ill, unlike any that ever has existed in U.S. history. As the Supreme Court observed a few years ago: “While in the past there may have been difficulty in identifying the most important places (in a spatial sense) for the exchange of views, today the answer is clear. It is cyberspace — the ‘vast democratic forums of the Internet’ in general, and social media in particular.” Without Section 230 protections, social media companies would have to monitor every post to ensure they would not face liability. That would force Twitter, Facebook and the like to engage in great control over speech.

In announcing his executive order, with Atty. Gen. William Barr ominously by his side, the president said: “We’re here today to defend free speech from one of the greatest dangers it has faced in American history.” But lessening the shield from liability for social media companies would have exactly the opposite effect.

It is tempting to shrug and dismiss the president’s action as just another example of Trumpian bluster that is unlikely to be implemented and surely will be struck down by the courts. But for the president of the United States, accompanied by the attorney general, to make such a threat to free speech to try to intimidate his critics should be chilling for us all.

Erwin Chemerinsky is the dean of the UC Berkeley School of Law and a contributing writer to Opinion.