But critics of Trump’s executive order need to recognize that the final version of the executive order actually
deemphasized the Section 230(c)(1) argument, taking what was a nearly page-long discussion in the draft order and reducing it to just a few sentences in a sub-sub-section of the final order.
Instead, the final executive order now makes Section 230(c)(
2), not Section 230(c)(1)’s “publisher” rule, the centerpiece of President’s new social media policy. The order asserts that social media companies’ editorial activities are often not “good faith” efforts to remove inappropriate content, but rather “deceptive or pretextual actions (often contrary to their stated terms of service) to stifle viewpoints with which they agree.”
And the legal mechanism for its implementation is also slightly more nuanced that many commentators have highlighted. So far, attention is being paid mostly to the order’s direction to the Secretary of Commerce (via the National Telecommunications and Information Administration) to petition the Federal Communications Commission for a new rulemaking to specify what editorial activities do or do not merit civil liability protection under Section 230(c)(2). The Commerce/NTIA/FCC provision is important, but it is only one part of the order’s regulatory enforcement mechanism.
The other part of the enforcement mechanism—perhaps the
more important part—is
Section 4 of the order, which directs the Federal Trade Commission to “consider taking action” to deem particular Internet platform companies’ editorial practices as “
unfair or deceptive acts or practice” because they “restrict speech in ways that do not align with those entities’ public representations about those practices.”