Trump Executive Order Misreads Key Law Promoting Free Expression Online and Violates the First Amendment - 2020-05-28
This post based its initial analysis on a draft Executive Order. It has been updated to reflect the final order, available here.
President Trump's Executive Order targeting social media companies is an assault on free expression online and a transparent attempt to retaliate against Twitter for its decision to curate (well, really just to fact-check) his posts and deter everyone else from taking similar steps. The good news is that, assuming the final order looks like the draft we reviewed on Wednesday, it won't survive judicial scrutiny. To see why, let's take a deeper look at its incorrect reading of Section 230 (47 U.S.C. § 230) and how the order violates the First Amendment.
The Executive Order's Error-Filled Reading of Section 230
The main thrust of the order is to attack Section 230, the law that underlies the structure of our modern Internet and allows online services to host diverse forums for users' speech. These platforms are currently the primary way that the majority of people express themselves online. To ensure that companies remain able to let other people express themselves online, Section 230 grants online intermediaries broad immunity from liability arising from publishing another's speech. It contains two separate and independent protections.