WASHINGTON — President Donald Trump on Thursday is set to sign an executive order that could open the door for federal regulators to punish Facebook, Google and Twitter for the way they police content online, issuing a major broadside against Silicon Valley that quickly triggered wide-ranging political opposition and threats of a legal challenge.
Trump has portrayed the expected order, the details of which were first reported by The Washington Post late Wednesday, as an attempt to stamp out political bias on the part of the country's largest social-media platforms. His directive comes days after Twitter steered viewers of some of the president's tweets to news articles that fact checked his claims, a move Trump said was a form of censorship.
But advocates for the tech sector and a variety of legal experts from across the political spectrum on Thursday doubted the legality of Trump's proposal, feared its implications for free speech and questioned whether the U.S. government actually could carry it out as the president intended. Already, some in the tech industry were quietly discussing their legal options, including a potential lawsuit challenging Trump's order, according to two people familiar with the matter who requested anonymity because talks are early.
"This is simply setting the wheels of law enforcement and regulation in motion against a private company for questioning the president," said Matt Schruers, the president of the Computer & Communications Industry Association, a Washington trade group that represents Facebook, Google and other major tech companies.
Trump's order essentially would pave the way for U.S. agencies to revisit, and potentially undo, long-standing legal protections known as Section 230, which spares tech giants from being held liable for the content they allow online and their own moderation decisions, according to two people familiar with the document, who spoke on condition of anonymity because it has not been finalized. The Post also obtained an undated draft copy of the order, which sources cautioned could still change before the president signs it.
The directive specifically would pave the way for federal officials to seek a new rulemaking proceeding at the Federal Communications Commission to rethink the scope of the law, the people familiar with the document said. A change could mean potentially dramatic free-speech implications and wide-ranging consequences for a broad swath of companies reliant on doing business on the internet.
The order would also seek to channel complaints about political bias to the Federal Trade Commission, which would be encouraged to probe whether tech companies' content-moderation policies are in keeping with their pledges of neutrality. It would further create a council along with state attorneys general to probe allegations of political bias, while tasking federal agencies to review their spending on social media advertising, according to the people familiar with the White House's thinking.
"In a country that has long cherished the freedom of expression, we cannot allow a limited number of online platforms to handpick the speech that Americans may access and convey online," according to an undated draft version of the executive order obtained by The Washington Post late Wednesday.
The order could mark the White House's most significant salvo against Silicon Valley after years of verbal broadsides and regulatory threats from Trump and his top deputies. It also may raise fresh, thorny questions about the First Amendment, the future of expression online and the extent to which the White House can properly — and legally — influence the decisions that private companies make about their apps, sites and services.
It is not clear, however, if the FTC and FCC plan to take the actions sought by the president. The agencies are independent, operating separately of Trump's Cabinet, leaving enforcement to their discretion. The FCC declined comment, and the FTC did not immediately respond.
Andrew Jay Schwartzman, a longtime telecom expert and senior counselor for the Benton Institute for Broadband & Society, described the draft order as horrifying, adding the FCC in particular “has no authority to enforce Section 230, so any interpretation it might issue will have no legal effect.”
Others fretted that Trump's order would try to circumvent Congress. "The idea you could have an executive order that reinterprets a clear statute that Congress passed, that has been interpreted by the courts for over 20 plus years, as recently as yesterday... is just nonsense," said Jesse Blumenthal, who leads tech policy work for Stand Together, an organization backed by Charles Koch.
The White House declined to comment. A White House spokesperson told reporters earlier Wednesday that the president would sign an executive order "pertaining to social media" on Thursday but did not provide further details. Trump late Wednesday accused tech giants of trying to censor conservatives ahead of the 2020 election, and on Thursday, he added on Twitter: "This will be a Big Day for Social Media and FAIRNESS!"
Trump is one of social media's most prolific, influential users. He's armed with a Twitter account that reaches more than 80 million people and a campaign war chest that has made the president one of the most pervasive advertisers on Facebook and Google. But he is also one of the web's most controversial voices. He has previously shared and tweeted posts, photos and videos that appear to run afoul of major tech companies' guidelines that prohibit or discourage harmful, abusive or false content.
For years, Twitter in particular largely allowed Trump to share his views unfettered anyway, saying that even his most controversial tweets were in the public interest. But fierce blowback eventually forced Twitter to reconsider its hands-off approach, culminating in the company's first-ever attempt Tuesday to label the president's tweets about mail-in ballots.
Trump responded by claiming that major social media companies are biased, threatening to "strongly regulate, or close them down" in response.
Until this week, Trump had issued only threats to regulate or penalize Facebook, Google-owned YouTube and Twitter over a range of claims, even suggesting at one point that the industry tried to undermine his election. Previously, however, the White House has backed down, even shelving prior versions of its executive order targeting social media companies.
But tensions reached a new, public height in July, when the president convened a "social media summit" at the White House featuring GOP lawmakers and Republican strategists, an event seen at the time as a precursor for further action to come. The event drew sharp rebukes from digital experts and congressional Democrats, who said Trump had used the backdrop of the White House to condone some of his supporters' most provocative, controversial online tactics.
That same month, the Justice Department opened a wide-ranging review of the tech industry, which since has blossomed into a full inquiry on Section 230. Repeatedly, Attorney General William Barr has raised the possibility that the U.S. government could seek changes to the rules. "No longer are tech companies the underdog upstarts," Barr said in a speech this February, reflecting on the origin of the statute. "They have become titans."
The law is controversial. It spares tech companies from being held liable for the content posted by their users but also spares them liability for decisions they make to removed content. Critics long have said those exceptions allow some of Silicon Valley's most profitable companies to skirt responsibility for the harmful content that flourishes on their online platforms, including hate speech, terrorist propaganda and election-related falsehoods.
Republicans, meanwhile, at times have threatened to try to revoke the industry's protections in response to allegations of anti-conservative bias, charges that Facebook, Google and Twitter repeatedly have denied.
On Thursday, many in the industry leapt to the law's defense, signaling a protracted fight to come.
"Based on media reports, this proposed Executive Order seems designed to punish a handful of companies for perceived slights and is inconsistent with the purpose and text of Section 230," said Jon Berroya, the interim president of the Internet Association, which represents major tech companies. "It stands to undermine a variety of government efforts to protect public safety and spread critical information online through social media and threatens the vibrancy of a core segment of our economy."