Preventing Online Censorship

Background

EO-13925, signed by President Trump, sought to address concerns over perceived bias and censorship by social media platforms. The order primarily targeted Section 230 of the Communications Decency Act, which provides immunity to online platforms for content posted by third parties. While the executive order itself did not have the power to immediately change the law or regulations, it directed federal agencies to explore potential adjustments in their interpretation of Section 230. The order urged the Federal Communications Commission (FCC) to consider rulemaking to clarify the conditions under which social media platforms could lose their liability protections. This directive underscored the administration's intent to challenge the prevailing scope of Section 230's immunity, framing it as inconsistent with free speech ideals.

Operational adjustments resulting from the order included intensified scrutiny of government advertising budgets concerning social media platforms accused of limiting free speech. Federal departments and agencies were instructed to review their spending on such platforms. Reports had to be compiled to evaluate whether taxpayer dollars were being funneled into platforms engaging in what the administration characterized as unjust censorship. This measure was not immediately transformative but signaled a potential reallocation of resources away from platforms identified as suppressive, pending further review by the Office of Management and Budget.

Another significant impact of the order was the heightened role given to the Department of Justice and the Federal Trade Commission in reviewing complaints of perceived censorship. Through a mechanism like the Tech Bias Reporting Tool, the federal apparatus was encouraged to gather grievances from the public. The goal was to investigate potential cases of unfair or deceptive practices by social media companies. While this did not result in immediate enforcement actions, it laid the groundwork for more aggressive federal oversight. However, it effectively amplified the administration's message about alleged tech bias without yielding drastic policy shifts or legal consequences during its active period.

Reason for Revocation

President Biden's decision to revoke the order was influenced by a different ideological stance on the balance between platform regulation and free speech. The administration saw the order as a potential threat to the fundamental structure of internet governance, particularly the liability protections under Section 230, which is considered a bedrock for the modern internet. President Biden's stance emphasized the importance of preserving these legal protections to safeguard innovation and provide a platform for diverse expression, despite the existing debates about moderation bias.

The Biden administration viewed the order as part of a broader campaign by the previous administration to delegitimize mainstream social media platforms, which were often criticized for moderating content associated with misinformation and harmful rhetoric. By revoking the order, the Biden administration aimed to signal a shift toward a more collaborative and less adversarial approach to tech regulation. This shift was also about restoring confidence in these platforms as partners in curbing misinformation, especially in light of the COVID-19 pandemic and subsequent debates about health misinformation.

Moreover, the revocation can be attributed to a broader prioritization of legislative action over executive orders as the more suitable pathway for significant reform. The Biden administration's approach involved advocating for comprehensive legislative solutions to address platform accountability rather than relying on executive authority for immediate changes. This reflects a more long-term strategy to reform internet governance through bipartisan cooperation in Congress, rather than through executive orders that can be easily overturned by successive administrations.

The revocation also aligns with a policy agenda that seeks to tackle a variety of economic and social issues through unified and broad-spectrum legislative actions, rather than focused and potentially polarizing executive directives. This shift indicates a preference for stability and predictability in internet regulation, encouraging the development of policies through conventional legislative processes that facilitate stakeholder engagement and address contemporary issues in a balanced manner.

Winners

The revocation of the order was seen as a victory for large technology companies such as Twitter, Facebook, and Google. These companies, which operate the most widely used social media platforms, stood to benefit significantly due to the preservation of Section 230 protections, which are crucial for their business models. By maintaining these protections, these platforms can continue to host user-generated content without being liable for every post, allowing them to scale their operations globally and deploy resources into innovation and security enhancements.

Startups and smaller tech companies also benefited from the revocation. Under the stability provided by the existing framework of Section 230, these emerging businesses were protected from the undue burden of potential legal challenges related to user content. This allowed smaller companies to compete more effectively against larger incumbents, fostering innovation and diversity within the tech industry. A stable regulatory environment is essential for attracting investment and encouraging risk-taking by new entrants eager to disrupt established market players.

The revocation also helped advocacy groups and civil rights organizations that lobby for internet freedom and free expression. These groups had expressed concerns that the order could lead to over-censorship and disproportionately affect marginalized communities whose voices are often suppressed in traditional media. By preserving a more open environment, there was optimism that the internet could continue to serve as a platform for a wide array of viewpoints and enable vibrant discourse necessary for a healthy democracy.

Losers

The revocation of the order disappointed certain political groups and individuals who felt that social media platforms had engaged in biased practices against conservative viewpoints. Those advocating for increased accountability and transparency from tech giants saw the order as a mechanism to address these issues, and its removal diminished their prospects of rapidly affecting change in the content moderation policies of large platforms.

Additionally, some traditional media companies expected that the order would level the playing field by imposing stricter liability norms upon social media platforms. The revocation maintained the current sets of disparities in how traditional media and online platforms are regulated. Traditional outlets, which already face rigorous content standards, perceived that an opportunity to recalibrate public discourse standards in favor of their interests was lost.

Elements of the legal community advocating for a reevaluation of Section 230 faced setbacks due to the revocation of the order. Some within this group argue that unchecked immunity has allowed platforms to abdicate their responsibilities in moderating harmful content. By upholding the existing liability structure without immediate changes, the pathway to reevaluating Section 230 was perceived as regressive, stalling potential reformations that could introduce stricter checks and balances against harmful digital content.