A U-M Media Law Professor on Trump’s Social Media Executive Order

Len Niehoff discusses what the controversial order gets wrong about the First Amendment and how it could affect the way social movements, like Black Lives Matter, organize online
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After he unleashed a virtual tirade late last month on Twitter for flagging two of his tweets as “potentially misleading” and adding footnotes with fact-checking sources, President Trump signed the Executive Order for the Prevention of Online Censorship. The order seeks to reinterpret Section 230 of the Communications Decency Act of 1996, which shields internet platforms from liability for circulating content produced by third parties. Under Trump’s new interpretation, this immunity would be revoked for any platform that engages in “censorship.”

 

Unsurprisingly, the executive order and its constitutionality have proved highly controversial. Less than a week after its introduction, it was met with a lawsuit filed by Big Tech-funded advocacy group Center for Democracy and Technology. 

 

We know — it’s a lot. That’s why we spoke with University of Michigan professor of media law Len Niehoff, who broke it all down and shared his thoughts on why the executive order is problematic, how it would change the way we communicate online, and how it could affect the way social movements, like Black Lives Matter, organize through social media.  

 

Hour Detroit: There’s been debate as to whether it’s within the president’s power to enact the content of the Executive Order on Preventing Online Censorship. What are your thoughts?

 

Len Niehoff: I think there’s relatively little the president can actually do here. The order threatens section 230, but whether that threat could materialize into anything is a bit mysterious, because frankly, the executive branch doesn’t have much to do with that statute. Trump can’t repeal it, and he can’t give it a judicial interpretation. So, the order kind of thrashes around trying to figure out how to threaten section 230, when it’s not actually clear that the president can do so. The order is sort of like the equivalent of a written tantrum.

 

The executive order is a direct response to Twitter’s fact-check of Trump’s tweet. Do you think that is significant?

 

Yes, I think the motivation behind this order is the most obvious problem with it. The order was unabashedly entered in retaliation for private speech based on its viewpoint, which under First Amendment case law, is deeply problematic. 

 

But Trump claims Twitter violated his right to free speech.

 

Which is completely wrong. First of all, the First Amendment only constrains government action. It doesn’t constrain the actions of a private entity like Twitter. Secondly, the First Amendment only protects private speech. It doesn’t give the government any rights, and of course, the president was speaking as a representative of the government. Third, Twitter didn’t actually keep the president from speaking. It left his tweets in place. And finally, Twitter’s statements about the president’s tweets reference other sources are that are also protected speech under the first amendment. This is the most astonishing thing about the order and the way it’s been presented — it gets pretty much everything about the First Amendment backward.

 

It’s true that Twitter didn’t remove the president’s posts. It flagged them and added fact-checking sources. In a time when pointing out misinformation is considered a partisan act, where is the line between fact-checking and censorship?

 

I think the word “censorship” has to be reserved for what it actually means, which is when the government prohibits someone from saying something or punishes them for doing so. I don’t think that talking about Twitter engaging in censorship even makes any sense. There are all these buzzwords in the order — free expression, censorship, and so on. You can almost imagine someone who does not understand much about the law reading the order and thinking, “I’m against censorship and for free speech. So, if this order is against censorship and for free speech, then I think it sounds good.” That’s what’s most dangerous about the order — it is antagonistic toward free speech and is intended to achieve censorship against Twitter, but it is packaged in all this language that makes it sound like it’s doing something quite different. It’s a wolf in sheep’s clothing — and not a very convincing sheep, at that.

 

But Trump called online censorship, “one of the greatest dangers [free speech] has faced in American history.” What do you think of that characterization? Is this something we should be concerned about?

 

If The New York Times decides to print liberal points of view, but not conservative ones, that’s not censorship. That’s an editorial decision. That’s what the First Amendment protects, not what it forbids. I think the same applies to internet platforms. And there is a legitimate and responsible debate going on about the role online platforms play in the distribution of information and the extent to which further regulation is appropriate or lawful. But this order is not part of that responsible conversation. It’s a lashing out against a specific entity based on a viewpoint that was expressed.

 

If the order were to be put into action, how do you see it affecting the ways in which we communicate using social media?

 

I think the greatest risk here is that the executive order, combined with some other political energy, ends up driving ill-advised revisions to section 230. I think that could be disastrous for the flow of information, and it could also be immensely unpopular.

 

Many social movements, such as Black Lives Matter, lean heavily on social media to convey their messages and organize demonstrations. Could the executive order hinder their ability to do so?

 

It’s entirely possible. There are parts of this order that, in all candor, I have no idea what they mean or how they would be enforced. There’s a lot of talk about taking the bias out of social media, but what does that mean, and how does it play out? If the government concludes that certain liberal movements are getting more airtime than certain conservative movements, will the platform be punished? Will the government curtail the speech of those more liberal groups? And the other way around. The unintended consequences of adopting this order could touch groups that oppose the president as well as those that support him.

 

Do you think the Center for Democracy and Technology will win the lawsuit it filed, which challenged the executive order?

 

Yeah. I think the order is clearly unconstitutional and they have a very strong case. The fact that it’s unclear whether the president has the authority to do the things he threatens introduces another constitutional problem, which is the separation of powers. And I think it’s so obviously unconstitutional, that I wouldn’t bother to put this on a final examination for my students. It’s too easy. 

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