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Experts say Trump’s threats to Twitter have little legal standing—but they detract from COVID-19 efforts

May 28, 2020, 8:59 PM UTC

President Donald Trump is mad at Twitter, and he’s planning on using his authority to do something about it. 

The White House has issued an executive order which could give the federal government broad and unprecedented authority over social media companies. The plan attempts to trim down current laws that protect companies like Twitter and Facebook from liability over what users post on their platforms.  

The order asks the Federal Communications Commission (FCC) and Federal Trade Commission (FTC) to roll back parts of Section 230 of the Communications Decency Act, which is seen as the largest protector of free speech on the web. It comes immediately after Trump became angered by a fact-checking tag placed on the bottom of two tweets where he made false claims about vote-by-mail fraud.

“Republicans feel that Social Media Platforms totally silence conservatives voices. We will strongly regulate, or close them down, before we can ever allow this to happen. We saw what they attempted to do, and failed, in 2016,” the President wrote on Twitter following the incident. “Twitter has now shown that everything we have been saying about them (and their other compatriots) is correct. Big action to follow!”

But the President’s actions will likely be ineffective, said Gigi Sohn, a former FCC lawyer and co-founder of Public Knowledge. “This is another example of Donald Trump working the refs. The President can’t overturn 25 years of judicial interpretation of the law, which is what he’s trying to do here, and he also can’t rewrite the law,” she said, adding that she didn’t believe that limiting the rules of online platforms was even within the legal power of the FCC. 

The order is complicated. A draft, which was reviewed by Fortune, instructed the Department of Commerce to direct the FCC create a rule change that limits liability protections if a platform is able to remove or alter a user’s content. Additionally, the FTC should look into whether these kind of activities are done in “good faith.”

“This language is very lawyered,” said Sohn, but she still thinks the president is overstepping his authority. The FTC and FCC are both independent agencies authorized by Congress. The President cannot order them to take action.  

“Much as he might wish otherwise, Donald Trump is not the president of Twitter. This order, if issued, would be a blatant and unconstitutional threat to punish social media companies that displease the president,” said ACLU senior legislative counsel Kate Ruane in a statement. “The president also has no authority to rewrite a congressional statute with an executive order imposing a flawed interpretation of Section 230.”

There are worries this could take away from other pressing matters related to the current pandemic. “Instead of making sure everyone has broadband to do homework and talk to their doctor and telework, the FCC is going to be focusing whether Twitter has the ability to place a ‘get more info’ sign at the bottom of a tweet, and the Federal Trade Commission, which has to deal with COVID-19 hoaxes right now, will also have to devote resources to this because of the president’s vendetta,” Sohn said. 

While Duke University legal scholar Phil Napoloi believes that social media sites do need regulation, “this initiative coming from the White House threatens to do far more harm than good to the cause of responsible, constitutional, and effective government regulation of social media,” he said. “This is because the most potent argument that opponents of social media regulation have at their disposal is the concern that any regulatory intervention can be used primarily as a political tool by the administration in power—which is exactly what these actions from the White House appear to be.”

Sohn, meanwhile, thinks that this threat of an executive order is a scare tactic. Last year, the White House said that they would issue a similar order but reportedly dropped the idea after receiving pushback from both the FCC and FTC. 

Twitter CEO Jack Dorsey stood behind his decision and criticized the President for singling out a particular employee at Twitter for the tag on his tweets. “Fact check: there is someone ultimately accountable for our actions as a company, and that’s me. Please leave our employees out of this,” wrote Dorsey in a series of Tweets. “We’ll continue to point out incorrect or disputed information about elections globally. And we will admit to and own any mistakes we make.”