Yesterday, President Trump signed an executive order aimed at bullying social media companies and online platforms into changing how they moderate content online. The order came the day after President Trump tweeted that Republicans feel that social media platforms silence conservative voices. And, notably, just days after Twitter’s decision to place a fact-checking label on one of Trump’s tweets for the first time, calling out his blatantly false tweets about mail-in ballots and directing users to trusted journalistic sources countering the President’s lies.  

There is one part of the executive order we agree with. Its opening section identifies how online speech has become a central feature in public dialogue, and raises concerns about the monopoly power of a handful of private companies to control such an important forum for debate. We agree that Twitter and Facebook should be careful about their own content decisions, because they affect all of us. But that’s where our agreement ends. The remedy President Trump proposes in the rest of the Executive Order is far worse than the problem it identifies. In the name of free speech, it threatens official retaliation for speech that displeases the government. 

Let’s start with the Constitution, which prohibits retaliation for protected speech. Trump is telling Twitter, Facebook, and other platforms, “If you speak out in ways that displease me,” for example, calling out his lies, condemning his views, or adding context to his distortions, “I will make things much harder for you.” The First Amendment forbids such blatant, thin-skinned efforts to stifle expression — whether they are effected through formal or informal means. In the short term, such threats chill free expression, and are impermissible for that reason.   

At the same time, the extent of the order’s long-term effects remain unclear. The President has no more authority to amend an act of Congress or a provision of the Constitution than he does to silence those, including Twitter, who condemn his views and his policies. He can’t constitutionally do any of these things on his own, yet the order appears to attempt to do all three.

It directs the Commerce Department to ask the FCC to make a rule adopting the President’s interpretation of an important shield from liability for online platforms known as Section 230 of the Communications Decency Act (CDA 230). The FCC has no obligation to take up the request, and, even if it did, no authority to interpret CDA 230 in the ways the order suggest because they are contrary to the law’s clear language. However, that doesn’t mean it won’t try.

Other provisions, including a threat to withhold government contracts and advertising from online platforms whose speech decisions about what to post, not post, or comment on, level a direct threat of retaliation for protected private speech. And given the government’s substantial resources, that threat cannot be considered idle. It also cannot be considered constitutional. 

That brings us to one of the biggest problems with the executive order. It blames CDA 230 for online censorship, which entirely misconstrues the function and purpose of that statute. This fundamental misapprehension appears to be shared by many members of Congress, as well. In fact, Section 230 is critical to protecting free speech online, and threats to undermine it will undermine free expression.

By generally immunizing platforms from liability for the speech of their users, CDA 230 allows platforms to publish all sorts of content without having to calculate the legal risk presented if it were their own content, creating space for free communications and debate. That includes — as Donald Trump appears to have forgotten — his own tweets, even when they include lies.

It also includes the videos, photos, and tutorials each of us is relying on to stay connected today. If it weren’t for CDA 230, no website owner would permit public posts knowing that the site could be investigated, shut down, sued, or charged with a felony over one user’s illegal tweet or post — including that of the President. Without this protection, even the smallest blog would have to hire an army of lawyers to assess in real-time all content created and uploaded by users. It’s unaffordable, and unrealistic. Instead, sites would avoid legal liability by simply refusing to host user-generated content at all, effectively shutting down the platforms we have come to depend on for public discourse.

In fact, this is exactly what has happened in the past when Congress has amended CDA 230. SESTA/FOSTA, which the ACLU strongly opposed, was purportedly aimed only at creating platform liability for illegal sex trafficking. We warned at the time that, rather than face liability, platforms would engage in excessive censorship that would harm the LGTBTQ and sex worker communities in particular. As we predicted, after SESTA/FOSTA’s passage, entire web sites that provided forums for sex workers to connect, share information to protect themselves, and build community disappeared. Google and other remote storage sites began to scan for sex-related content and remove it from their systems, censoring legal content only to avoid liability risk. Speech and safety both suffered.

The changes the President seems to want, which would strip online platforms of CDA Section 230’s protections if they fact-check his statements on their platforms, or are deemed “biased” from the standpoint of a particular administration, could have the paradoxical effect of silencing even the President himself online. Without CDA 230 protections, those platforms would not expose themselves to the legal risk of hosting the President’s content — or anyone else’s.

Changes proposed by certain members of Congress, like Senator Lindsey Graham, would harm our online speech rights in different ways. For instance, the changes to CDA 230 proposed by Sen. Graham’s EARN IT Act, which the ACLU also strongly opposes, would not only harm our online speech rights, but also undermine our privacy online, again in ways that will disproportionately harm the LGBTQ and sex worker communities. Any changes to narrow CDA 230’s protections must be far more carefully considered.

CDA 230 protects people’s ability to create, communicate, and build community online. The ACLU will remain vigilant in ensuring that the Internet remains a place for self-expression and creation for all. We also urge vigilance on the part of members of Congress to protect free expression online as they examine CDA 230. And we will be monitoring closely to see how federal agencies choose to enforce President Trump’s executive order, if at all.

Kate Ruane, Senior Legislative Counsel, ACLU

Anthony Romero started his job as executive director of the ACLU just seven days before September 11, 2001, and he’s been with us ever since. The subsequent “war on terror” presented new and widespread threats to civil rights and civil liberties. Now, he faces a new challenge: leading the ACLU during the COVID-19 pandemic. He joined the podcast this week to discuss how the ACLU is navigating the current moment.

“In moments of crisis, in moments of fear, civil liberties are often imperiled,” Romero told our host, Emerson Sykes. The organization has had to “adjust to our understanding of what liberty and freedom meant at a time like this.”

While the ACLU’s values and goals have largely not changed during this pandemic, Romero discusses how our work continues to evolve and grow over time, and how our vigilance is more necessary than ever.

You can listen to this episode here:

Anthony Romero on Leading in Times of Crisis

Anthony Romero on Leading in Times of Crisis

Anthony Romero has been the Executive Director of the ACLU for nearly 20 years. He’s seen the organization through periods of massive growth and numerous national crises. Romero started the job just seven days before September 11, 2001. The subseq...

Anthony Romero has been the Executive Director of the ACLU for nearly 20 years. He’s seen the organization through periods of massive growth and numerous national crises. Romero started the job just seven days before September 11, 2001. The subseq...

Listen to this episode

While there are many policies drafted and bills legislated, really the only components that comprise successful reentry to the community are skills, support, and shelter. Thinking about what I needed when I came home from prison looks much different now than it did 20 odd years ago. Back then, I thought serving my time in prison was my punishment; I didn’t know I was facing a life sentence after leaving prison. And for many people reentering society after leaving incarceration, that’s what reentry is — a life sentence.
 
When the corrections officer stopped by my bunk to tell me I was being paroled, my world stood still, and my head spun. All of a sudden life after prison was real, and my time inside was finally over. After 2,095 days, I was finally going home, and I had no idea how unprepared I was for freedom. I thought it was going to be as simple as the woman that taught the pre-release class said it would be. She said all I had to do was be honest about my past and be willing to work hard. So, as I sat in that hot, stuffy gym with 750 other men waiting to be released from prison, I thought I had it all worked it out. It all seemed so simple.
 
Walking out of prison I was handed a check for $50 and a bus voucher. The voucher allowed for travel to Dallas or Houston, and from there I had to purchase my own bus fare to Austin. I was expected to provide myself with clothing, food, travel, and shelter with that same $50. To say I was being set up to fail is being gracious. I was released on Thursday afternoon and didn’t have to report to my parole officer until the following Monday morning, so I spent the weekend with family I hadn’t seen in years and convinced myself that everything was going to work out fine.
 
When I reported to my parole officer that Monday, he informed me I was to spend the next 60 days on an electronic monitor. The monitor was supposed to be affixed to my ankle, but it was too small, so I was forced to wear it on my wrist. The conditions of my release mandated that while I was on parole I was to be gainfully employed. Who did my parole officer think was going to hire me with an electronic ankle monitor on my wrist? How did he think I was going to explain that to a prospective employer?
 
He didn’t seem to think about how the monitor would affect my life or even whether it would affect my ability to comply. He didn’t care that I was unemployable. He didn’t care how many times I was denied an interview after my application was reviewed and I had disclosed my conviction. When I sat in that prison gym before my release, I came up with a plan to apply at McDonald’s and work my way up from there. Aim low, I told myself. Don’t get your hopes up. Now, with a monitor on my wrist, I was worried that even this plan wouldn’t work out.
 
I had convinced myself if I aimed low enough, I was bound to hit my target and everything would work out fine. There was no sense in aiming high, those days were far behind me. Those halcyon days of youth had been stripped from me, right along with my dignity and self-worth. Aim low, I thought, so when I didn’t hit the mark I could remind myself it was because I was a convicted killer. Not formerly incarcerated, but a felon convicted of voluntary manslaughter, undeserving of anything other than failure.
 
What I needed was someone who had been to prison and was successfully navigating reentry to mentor me. I needed someone to tell me that applying for a job, for housing, or for a loan was different for folks with a felony conviction. Having someone tell me that being a father, a son, and even a brother was totally different after prison would have made an enormous difference in my life. My family needed to be informed about the limitations that were going to be placed on me and my ability to find employment, housing, or treatment. My church needed to see me as who I had become, not who I was. Creating pathways to successful reentry is just as incumbent upon the community as the individual, as transformation and redemption is expected, if not demanded, from formerly incarcerated individuals.
 
There can be no sustainable drop in rates of recidivism until we embrace successful reentry as an antidote for mass incarceration. Society must embrace the reality that 95 percent of the people currently in prison are coming home, and we have to find a better way to onboard them back into our families, our neighborhoods, and our communities.

Lewis Conway, National Campaign Strategist, ACLU