Following a series of threats on Twitter, President Trump signed an executive order to regulate social media platforms. The order seeks to compel the Federal Communications Commission and the Federal Trade Commission to take active roles in the regulation of these platforms. It also directs the Justice Department to develop proposals for further federal and state social media oversight. These actions raise deep concerns and will undermine the legitimate cause of reasonable and effective social media regulation for years to come.
The irony here is that social media platforms genuinely need some form of government regulation. Mark Zuckerberg himself has argued that this is the case, and each month seems to bring new evidence that platform self-regulation alone is adequate. This executive order, however, is not the solution. Instead, it does crippling damage to the prospects for any future reasonable and measured efforts to develop a regulatory framework for social media platforms.
Indeed, the president’s actions bolster the most potent argument against social media regulation — that any regulatory intervention is fundamentally a political tool to be abused by the administration in power. The circumstances that prompted this executive order help to illustrate this point.
For starters, it’s important to remember that the impetus for this executive order was Twitter’s placement of a fact-check alongside the president’s demonstrably false statement about mail-in ballots. Such actions in no way represent suppression of speech. Instead, they embody the still widely (if naively) embraced notion of counterspeech — “the more speech, the better. That’s what the First Amendment is all about,” as Supreme Court Justice Antonin Scalia once said. Twitter did not even downrank Trump’s tweet in users’ feeds. The company only provided additional speech. For such actions to result in accusations of censorship, and to prompt calls for regulation, should terrify anyone who believes in even the most basic protections of free speech in a democracy.
Fact-checking is quickly becoming the last bastion of objective, nonpartisan journalism in the U.S. Any regulatory intervention motivated by the act of fact-checking can only be interpreted as a blatant attack on the very idea of an informed citizenry — something media regulation has traditionally tried to cultivate, not undermine.
Finally, the First Amendment applies to government actions that affect individuals’ speech rights, not to actions of non-governmental actors such as social media companies. Despite President Trump’s accusations, Twitter cannot suppress his First Amendment rights. It can only work the other way around.
Any regulatory intervention premised on the neglect and distortion of basic democratic principles can only be interpreted as a self-serving political tool and must be resisted. Such an interpretation becomes much clearer when the treatment of the president’s speech provides the impetus for the regulatory intervention.
We’ve seen administrations abuse their media regulatory powers before. The Johnson and Nixon administrations both used the Fairness Doctrine to discourage broadcasters from airing news reports critical of their administrations. Nixon also used the FCC’s broadcast license renewal authority to apply pressure to news outlets that produced essential coverage. Such actions provided fuel for policy arguments that ultimately led to the Fairness Doctrine’s elimination and dramatic changes in the broadcast license renewal process.
Fortunately, such abuses have tended to be the exception rather than the rule. Nonetheless, they represent potent arguments against any form of media regulation, no matter how urgent the need for regulatory intervention or how reasonable and constitutionally sound the proposed interventions may be. This executive order is among the most aggressive efforts yet to try to use the federal government’s media regulatory authority for individual political gain.
For those opposed to social media regulation, the executive order is just what the doctor ordered — a worst-case scenario that can thwart any future efforts by more trustworthy administrations to craft measured, nonpartisan, constitutionally sound approaches to social media oversight. Any such efforts will be crippled by this cautionary tale of regulatory intervention on behalf of transparently political ends.
The prevailing sense is that little if any, regulatory intervention will likely come of the executive order. Even Republicans are divided over the approach that the White House is taking. Whatever misguided regulatory interventions, the Trump administration tries to impose are unlikely to survive First Amendment scrutiny in the courts. However, the damage will have already been done for the more significant cause of social media regulation.
Philip M. Napoli is the James R. Shepley Professor of Public Policy at the Sanford School of Public Policy at Duke University. He is the author of Social Media and the Public Interest: Media Regulation in the Disinformation Age.