As I understand it, Trump is planning to issue an executive order that claims some social media platforms are violating the Communication Decency Act Section 230 by not acting in good faith, and as a result, wants new FCC guidelines on the behavior of the platforms. If a platform violates these guidelines, then they are open to litigation, which they have previously been protected from. Here is a link to a draft of the order: https://kateklonick.com/wp-content/uploads/2020/05/DRAFT-EO-Preventing-Online-Censorship.pdf

Some questions I have...

  • Is my summary an accurate description?
  • A common part of the debate has been "free speech", which isn't relevant to a private company. However, are there other times the FCC has set guidelines that effectively influence free speech?

1 Answer 1


Addressing only the document that you link to without assumption of accuracy or finality, it says that "It is the policy of the United States to foster clear, nondiscriminatory ground rules promoting free and open debate on the Internet. Prominent among those rules is the immunity from liability", referring to 47 USC 230, and specifically "the scope of that immunity should be clarified". It is clear that the law say nothing about what counts as "good faith", nor does it say anything about what constitutes "otherwise objectionable". The document correctly say that the law "does not extend to deceptive or pretextual actions restricting online content", at leas as long as we understand "extend to" as meaning "explicitly mention". Similarly, the law does not explicitly say anything about whether a provider violating its own TOS nullifies the "good faith restriction" clause.

The order then directs the Dept. of Commerce to petition the FCC for regulations clarifying the interpretation of this law (I assume you meant FCC and not FTC). It specifically proposes explicitly interpreting "taken in good faith" to exclude actions that are deceptive, pretextual or inconsistent with a provider's TOS, or "the result of inadequate notice, the product of unreasoned explanation, or having been undertaking [sic] without a meaningful opportunity to be heard".

Everybody is presently open to litigation for defamation (for example), because you can allege that pretextual or "unreasonable" restrictions on speech are in bad faith, then the courts have to evaluate that question. What the regulations would do is provide a default answer ("yes, it is"), which the courts would follow unless the regulation is overturned in court or is rescinded.

There are vast numbers of restrictions on free speech by the FCC: the whole purpose of the FCC is to restrict the freedom to speak as one may please. The initial premise was that the government didn't want broadcaster A to functionally obliterate broadcaster B due to the strength of his signal on a particular frequency, so you are not free to speak in certain ways. There are numerous other restrictions on what you may say within the sphere regulated by the FCC, e.g. you can't broadcast live sex acts on network TV during Saturday morning cartoon time. The Fairness Doctrine and the equal time rule are / were other examples of restrictions on free speech (via compelled speech). "Free speech" is an open-enough concept that it is reasonable to consider anything with a governmentally-mandated "non-level playing field" to be a restriction on free speech (for example, statutory immunizations of a certain class of individuals against legal consequences of their acts). The problem with saying what acts of the FCC "restrict free speech" is that there isn't a clear definition of "free speech" that is consistent with laws against threatening, fraud, perjury and defamation.

As for the accuracy of your summary, there are also provisions regarding deceptive practices. There is more to it than you summarized (obviously: that's what a summary is), but apart from misspelling FCC I'd say that the summary is brief and not as informative (or verbose) as the original, but it is not deceptive. If you want a well-intentioned criticism, I think it is important to be specific about the fact that there is been some statutory immunization against liability which is the core of the order, but you didn't clarify that point. Governments litigate against companies (mostly) all the time, but governments do not litigate against companies or individuals for defamation or violating a TOS, and nothing in the order suggests that the government could start to sue social media companies for defamation or breach of contract, that is, the scope of the potential litigation is limited in an important way. I would (did) include that information, and don't assume "bad faith" in your omission. You have a First Amendment right to omit any details that you want.

  • "What the regulations would do is provide a default answer ... which the courts would follow". Why would judges take the directive of an executive order as the default answer to a question about the interpretation of a law passed by Congress? Commented May 29, 2020 at 5:02

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