BREAKING: Trump’s new Executive Order purports to protect free speech online https://techfreedom.org/wp-content/uploads/2020/05/EO-Preventing-Online-Censorship.pdf

That’s not how the Constitution works. The First Amendment protects Twitter from Trump—not Trump from Twitter

And #Section230 doesn’t change that

Here’s why...

WEBSITES AREN’T PUBLIC FORA: Supreme Court jurisprudence and case law DOES NOT support the EO’s claims that they are. The EO cites two cases that don’t apply to social media platforms:

1) Pruneyard (1980) was limited to shopping malls (very different from websites) and definitely wouldn’t be upheld by the Court today anyway, as made clear in Johnson v Twitter (2018)
2) Packingham (2017) is about restrictions on Internet imposed by STATE LAW, not private actors

The relevant case here is the Manhattan Access (2019): all 5 conservatives agreed that providing a forum for speech wasn’t enough to make a private cable programmer a gov’t actor, even where state law forced cable cos to set aside “public access” channel capacity

The EO rests on a distinction between “publishers” and “platforms”

THE ENTIRE POINT of #Section230 is that such distinctions don’t matter. 230 applies to providers of interactive computer services—a category that applies to all websites that host content created by others

Yes, a site can lose its 230(c)(1) protection by creating its own content

For example, Twitter IS responsible for the factcheck label it added to Trump’s false claims about ballots, but NOT for Trump’s claims OR the content the label links to

The obvious goal of the EO is to bombard Internet services with litigation

That’s so Republicans can “work the refs”—pressure Internet services not to moderate content in ways that might hurt Rs, or even to actively favor them

Opening the floodgates to litigation requires annulling ALL of Section 230 protections.Hence the EO’s claim the entire statute requires “good faith”

But ONLY (c)(2)(A) mentions good faith. And if websites could be sued for an alleged lack of good faith,they’d drown in litigation

The EO orders #FTC to consider suing Internet services for deceptive claims about content moderation

But the FTC won’t—can’t—sue Internet media for the same reason it hasn’t sued Fox News for claiming to be “Fair & Balanced.” As the Republican FTC Chair explained back in 2004:

The EO orders the DOJ to convene a working group of state Attorneys General to coordinate enforcement of Baby FTC and other statutes against Internet services. This will:
(a) violate the First Amendment just as FTC action would
(b) be a political circus

The EO orders NTIA (executive agency) to ask FCC to make rules. Why this cumbersome process? Because Trump’s lawyers know they can’t directly order an independent agency—a creature of Congress—to do anything

Yes, let’s have an honest conversation re #Section230 & the First Amendment WITHOUT misstating the law or threatening impossible enforcement

This EO WILL fail in court anyway—and, along the way, meddle with speech online

All in the name of “protecting free speech”

Ironic. SAD!