Posted on 7/24/2020 4:19:11 PM By Francyn Brown

On May 28, 2020, President Donald Trump issued an Executive Order[i] on “Preventing Online Citizenship” in an apparent retaliation against Twitter for marking two of Trump’s tweets with fact-checking labels.[ii] The Executive Order purports to be grounded upon principles of free speech and the Executive Order itself is peppered with free speech buzz words in apparent attempts to drive his point home if taken to court on constitutionality grounds. The Executive Order requires certain actions be taken by the National Telecommunications and Information Administration (NTIA), the Federal Communications Commission (FCC), and the Attorney General to regulate and enforce the policies proposed by Trump.  It also urges the Federal Trade Commission (FTC) to take action “to prohibit unfair or deceptive acts or practices in or affecting commerce.”[iii]  This Executive Order was met with vast criticism amidst Democratic leaders, including a lawsuit filed by the D.C. tech non-profit, Center for Democracy and Technology.[iv] At issue in the lawsuit is whether Trump’s Executive Order unconstitutional for violating the First Amendment’s freedom of speech and expression protections.
 
Twitter as a Private Company rather Than as a Public Arena
 
Trump’s Executive Order contains obvious freedom of speech doctrine buzz words possibly suggesting how the Trump Administration seeks to legally enforce policies on social media companies.  In Section 1, the Executive Order comes right out with it by stating that “free speech is the bedrock of American Democracy.”[v]  This point is brought home by the Order’s declaration that “[social media] platforms function in many ways as a 21st century equivalent of the public square” in the same section.[vi]  Under First Amendment jurisprudence, speech in a “public square” is afforded the highest degree of constitutional protection against censoring by the Government.  However, the keywords here are censoring by the Government and Twitter is a private entity, not a government entity.  The Executive Order also attempts to bring in the free speech doctrine of viewpoint restrictions by stating that “the Department of Justice shall review the viewpoint-based speech restrictions imposed by each online platform…”[vii] The viewpoint restriction doctrine holds that regulations/censorship of speech in certain public property cannot be based upon a disagreement with the speaker’s viewpoint.  The Order's inclusion of these terms suggest that Trump seeks to hold platforms liek Twitter accountable for engaging in viewpoint-based speech restrictions and therefore that Twitter is violating the First Amendment. However, again, Twitter is a private entity and does not make laws restricting speech, so it could not be unconstitutionally censoring President Trump or any other users under this doctrine.
 
Executive Order Requirements and Suggestions
 
Trump requires and suggests a variety of means by which his prevention of online censorship can be regulated and enforced.  First, Trump proposes to require that the NTIA and FCC issue regulations to “clarify” certain aspects of the Communications Decency Act (“Section 230”).[viii]  Section 230 is a federal law “that has spared tech companies from being sued or held liable for most posts, photos and videos shared by users on their sites.”[ix]  Additionally, in the Order, Trump requires: executive agencies to review the amount of federal dollars given to online platforms, the Attorney General to establish a working group regarding the enforcement of State statutes that prohibit online platforms from engaging in unfair or deceptive acts or practices, and the Attorney General to establish a proposal for Federal Legislation that would be useful to promote the policy objectives of the Order.[x] The Order also states that the FTC shall consider taking action and developing a report “to prohibit unfair or deceptive acts or practices in or affecting commerce.”[xi]
 
Law Suit Asserts Executive Order is Unconstitutional
 
But is the policy against “preventing online censorship” on social media companies from the Order constitutional or does this policy infringe on private companies’ First Amendment rights to freedom of speech and expression?  Many critics declare the affirmative: that the Executive Order violates the free speech protections of social media companies and its users.[xii] According to a lawsuit filed by law firm Mayer Brown on behalf of the Center for Democracy & Technology against Donald Trump, the Order is alleged to violate the First Amendment because it retaliates against a private company for exercising its First Amendment right to comment on the President’s statements and because the Order seeks to chill the constitutionally protected speech of all online platforms and individuals.[xiii] As the Complaint states, and as is supported by its cited case law, “the law is settled that as a general matter the First Amendment prohibits government officials from subjecting an individual to retaliatory actions. . .for speaking out ”[xiv] and “government action which chills constitutionally protected speech or expression contravenes the First Amendment.”[xv]
 
So, the question of the constitutionality of Trump’s Executive Order on Preventing Online Censorship is left up to the determination of the federal courts.
 
For more information and help on how the above may affect you or your business, please contact us at Partridge Partners.
 
 
 
[i] Executive Order on Preventing Online Censorship (May 28, 2020), available at https://www.whitehouse.gov/presidential-actions/executive-order-preventing-online-censorship/.
[ii] Trump Signs Order That Could Punish Social Media Companies for How they Police Content (May 28, 2020), The Washington Post, available at https://www.washingtonpost.com/technology/2020/05/28/trump-social-media-executive-order/ (last visited Jun. 24, 2020).
[iii] Executive Order on Preventing Online Censorship, at Sec. 4 (May 28, 2020), available at https://www.whitehouse.gov/presidential-actions/executive-order-preventing-online-censorship/.
[iv] Center for Democracy & Technology v. Donald J. Trump, Case No. 1:20-cv-01456 (D.D.C., filed Jun. 2, 2020), Complaint available at https://www.courtlistener.com/recap/gov.uscourts.dcd.218638/gov.uscourts.dcd.218638.1.0.pdf.
[v] Executive Order on Preventing Online Censorship, at Sec. 1, available at https://www.whitehouse.gov/presidential-actions/executive-order-preventing-online-censorship/.
[vi] Id. (emphasis added).
[vii] Id. at Sec. 4.
[viii] Id. at Sec. 2(b); Communications Decency Act, 47 U.S.C. § 230(c).
[ix] Trump Signs Order That Could Punish Social Media Companies for How they Police Content, The Washington Post, available at https://www.washingtonpost.com/technology/2020/05/28/trump-social-media-executive-order/.
[x] Executive Order on Preventing Online Censorship, available at https://www.whitehouse.gov/presidential-actions/executive-order-preventing-online-censorship/.
[xi] Id.
[xii] Mayer Brown Leads Legal Challenge to Trump's Executive Order Targeting Social Media Companies, Law.com (Jun. 2, 2020), available at https://www.law.com/nationallawjournal/2020/06/02/mayer-brown-leads-legal-challenge-to-trumps-executive-order-targeting-social-media-companies/ (last visited Jun. 24, 2020).
[xiii] Center for Democracy & Technology v. Donald J. Trump, Case No. 1:20-cv-01456, at ¶¶ 1, 6, 7 (D.D.C., filed Jun. 2, 2020), Complaint available at https://www.courtlistener.com/recap/gov.uscourts.dcd.218638/gov.uscourts.dcd.218638.1.0.pdf.
[xiv] Id. at 6 (quoting Hartman v. Moore, 547 U.S. 250, 256 (2006)).
[xv] Id. at 7 (quoting Wolford v. Lasater, 78 F.3d 484, 488 (10th Cir. 1996)).