Trump’s draft order targets legal protections for social media platforms

President Trump is expected to escalate his feud with social media companies by signing an executive order Thursday that orders a review of a longstanding law protecting Silicon Valley firms from lawsuits, according to a draft viewed by The Hill.

“In a country that has long cherished the freedom of expression, we cannot allow a limited number of online platforms to hand-pick the speech that Americans may access and convey online,” the draft reads. “When large, powerful social media companies censor opinions with which they disagree, they exercise a dangerous power.”

The order would direct an agency within the Commerce Department to file a petition with the Federal Communications Commission (FCC) to clarify the scope of Section 230 of the Communications Decency Act, a 1996 law that is considered foundational to the internet’s expansion. The statute provides platforms legal immunity for content posted by third-party users while also giving them legal cover to make good-faith efforts to moderate their platforms.

The draft order suggests that platforms like Facebook, Twitter and YouTube could be considered publishers in some cases, making them liable for content posted on their sites.

Democrats in Congress and at the FCC slammed Trump’s move.

“Donald Trump’s order is plainly illegal,” said Sen. Ron Wyden (D-Ore.), one of the two authors of Section 230. “After driving our country into an economic and health care disaster, Trump is desperately trying to steal for himself the power of the courts and Congress to rewrite decades of settled law around Section 230. All for the ability to spread unfiltered lies.”

“Protecting expression that resists the tyranny of those in power is the very foundation of the First Amendment,” Wyden added in his statement. “Section 230 does not prevent Internet companies from moderating offensive or false content. And it does not change the First Amendment of the Constitution.”

Jennifer Rosenworcel, a Democratic commissioner at the FCC, bluntly stated, “This does not work.”

“Social media can be frustrating. But an Executive Order that would turn the Federal Communications Commission into the President’s speech police is not the answer,” she said in a statement.

The FCC, which is controlled by Republicans, could deny the request to conduct a review.

FCC Commissioner Brendan Carr (R) said in a Yahoo Finance interview Thursday morning that the proposal “makes sense.”

“[Section 230] has always said that if you engage in bad-faith takedowns, you don’t get those bonus protections,” he said. “I think given what we’ve seen over the last few weeks, it makes sense to let the public weigh in and say, ‘Is that really what Congress meant when they passed and provided those special protections?’”

The announcement of the executive order is the latest development in a feud between Trump and Twitter after the social media giant applied a fact-check warning to one of the president’s tweets for the first time on Tuesday.

When reached for comment, Twitter, Facebook and Google, which owns YouTube, said they will wait to see the final order.

One section of the draft order would encourage the Federal Trade Commission to evaluate complaints from the public about allegations of political bias on social media. The agency would then determine whether they constitute “unfair or deceptive business practices.”

The White House last year created an online tool for reporting claims of bias on social media platforms.

Allegations of anti-conservative bias in tech companies, although common, have not been substantiated. Multiple lawsuits claiming suppression of conservative viewpoints on social media platforms have been rejected by courts, including one brought by far-right activist Laura Loomer just this week.

The draft order, which was previously reported by Reuters, would also have Attorney General William Barr create a working group to assess content moderation practices from social media companies, inviting state attorneys general.

Another section of the order would encourage federal agencies to review their spending on social media advertising.

It is unclear how much of the draft will make it into the final executive order, which White House press secretary Kayleigh McEnany said Trump would sign Thursday.

Twitter’s warning about Trump’s tweets earlier this week urged users to “get the facts about mail-in ballots.” It was attached to two posts in which Trump railed against mail-in voting in California, claiming the practice is full of fraud.

“These Tweets contain potentially misleading information about voting processes and have been labeled to provide additional context around mail-in ballots,” a Twitter spokesperson told The Hill.

Trump and his supporters quickly pounced on the fact check, accusing the company of bias against conservatives.

Trump accused Twitter of “stifling FREE SPEECH” and then threatened to “close” social media platforms in tweets Tuesday night and Wednesday morning.

He later vowed to take “big action” against Twitter.

The White House has considered taking action against social media companies for years, reportedly circulating an executive order last year titled “Protecting Americans from Online Censorship” that would let the FCC change how Section 230 is interpreted. The reported order never materialized.

Updated at 2:01 p.m.