The war between President Trump and big tech started when Twitter slapped a fact check label on one of the President's tweets. Not to be outdone, President Trump responded with an Executive Order in an attempt to regulate social media. Many legal commentators suggested that the Executive Order did not have valid authority to regulate social media and would soon be challenged in court. Sure enough, within a week after the President issued the order, a technology group has filed the first lawsuit in court seeking to strike down the Executive Order. This lawsuit will most likely not be the last.

One of the President's main complaints is that social media platform discriminate against conservative viewpoints in a manner akin to censorship. The President was trying to take action in his belief that he could interpret the law in a way that would force the social media platforms to air conservative viewpoints.
 

The Executive Order Sought to Change a Congressional Law

Specifically, there is a law entitled the Communications Decency Act of 1996 that shields websites and technology companies from lawsuits for moderating content that is placed on their sites. This allows for free speech on the internet and keeps websites from having to go to great lengths to protect themselves from liability for content posted on these websites. The Executive Order essentially directed the Federal Communications Commission to interpret this out of existence.

Section 230 was intended to resolve the dilemma that online websites face when they moderate content. They do not want to be held liable for violent or other types of hate speech and the like. At the same time, they also do not want to face lawsuits when they attempt to censor this speech.

The main contention of the Executive Order is that the protections in the Communications Decency Act Section 230 are dependent on the technology companies acting in good faith. Here, the President claims that Twitter is acting in bad faith out of a motive of stifling conservative speech. Some Republicans have long called for taking away this immunity from technology companies, although they have advocated this through proposed legislation as opposed to an Executive Order. Proposals have ranged from stripping this immunity entirely to making the tech companies pass an audit.

There have also been complaints about this section of the law from the other side of the aisle. Speaker Nancy Pelosi has said that Section 230 creates an atmosphere where there is rampant bullying online. Critics also claim that it allows for political misinformation to be easily circulated online.

The lawsuit was filed by a technology group called the Center for Democracy and Technology. It is a nonprofit group that largely draws its funding from the large technology companies.
 

The Lawsuit Primarily Contested the Executive Order on Free Speech Grounds

The lawsuit proceeded from two major points of attack. The first, and most obvious attack on the Executive Order was on First Amendment grounds. The plaintiffs have claimed that the Executive Order is attempting to curtail free speech online. Specifically, the lawsuit alleges that the Executive Order was drafted solely as a retaliation for Twitter's moderating one of the President's tweets by putting a "fact check" symbol on it. Courts do not allow actions that would "chill" someone's future rights to free speech in retaliation for previous conduct of theirs. Further, any executive action that was undertaken due to improper motives is also subject to being struck down by the courts.

In addition, the Executive Action has also been alleged by legal experts to exceed the authority of the Executive Branch. The Executive Order rests on an interpretation of a provision of a law. Legal experts have claimed that the President's action is actually taking over what would ordinarily be Congress' duties. In other words, the Executive Order would be changing the law through an executive interpretation. Some legal experts claim that it is overstepping the role of the executive.

Ultimately, while we cannot predict the result of the lawsuit, we think that it is a pretty safe bet that the liability protections of Section 230 will not be stripped away by this Executive Order. It is more likely that there may be some bipartisan Congressional effort to reform online speech once political tensions between the two sides have cooled. Some legal experts are even speculating that the bipartisan consensus could be to repeal Section 230.