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Perspective on the social media executive order

On May 28, 2020, President Trump signed an executive order calling for new regulations for social media platforms. Erin Kelley, who teaches Social Media and the Law, offers her perspective.

WVU Law Erin Kelley

President Trump’s Executive Order “Preventing Online Censorship” has more political implications than legal ones. It does nothing to change current application of Section 230 of the Communications Decency Act, but starts building a record that could push Congress to amend the law in the future.

Section 230 is one of the most influential laws shaping the modern internet. Facebook, YouTube, and Twitter have billions of users creating rich sites of user-generated content. The law’s protections allow for the fullest freedom of expression possible on these private platforms, as the providers are both protected from publisher liability arising from user-generated content, and also protected from civil lawsuits over wrongfully taking down content.

That second part is particularly explored in the Executive Order. 47 U.S. Code § 230(c)(2)(A) permits interactive computer services the ability to in “good faith” remove or restrict access to “material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.”

The executive order seeks to clarify the boundaries of (c)(2)(A) protection, improperly tying it to the protections offered by 47 U.S. Code § 230 (c)(1), and additionally questioning whether the “good faith” clause can be used to scrutinize choices by providers to moderate some content, but maybe not other content, to determine if the provider used “deceptive” or “pretextual actions” to remove or restrict access.

Attempts to control the ways providers moderate content can quickly run into First Amendment concerns, and potentially violate the intent of the law.

While none of the agencies asked to explore these questions have much or any authority to influence the interpretation of CDA Section 230, the information gathering, regulation exploration, and new legislation to be offered as a result of this executive order may push Congress to take on review of Section 230, which could ultimately do the opposite of what the President intends.

These interactive computer service providers already exist as large profitable businesses, and if they are going to be open to more liability, this executive order may eventually result in incentives for social media companies to moderate user posts more closely than before, rather than less.

Erin Kelley earned her J.D. from WVU Law in 2003 and her B.A. in English from WVU in 1999. She is the of Director of Learning Experience and Design for WVU Teaching and Learning Commons. Kelley is teaching Social Media and the Law at WVU Law this summer.

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