LOS ANGELES — Trump's executive order issued yesterday bears the title “Executive Order on Preventing Online Censorship.” The wording might suggest to the adult entertainment business that the president is taking a stance on Free Speech, which could be beneficial to open sexual expression.
This is not the case.
A closer look at yesterday’s executive order clarifies what it says, how those statements could be interpreted, what it can accomplish, and what it could mean for the adult industry.
What is an “executive order"?
“Executive orders” are directives issued by the president. They are not explicitly mentioned in the U.S. Constitution, but over the years they have developed certain formal aspects.
Executive orders are subject to judicial review to ensure that presidents don’t claim to have powers and attributions not granted to the executive branch by the Constitution.
What are these “powers and attributions”?
It would most often mean to try to unconstitutionally create, modify, overrule or repeal legislation. That is the job of the U.S. Congress, the legislative branch of government.
Executive orders that seek to bypass the legislative process as delineated by the Constitution are immediately challenged in the courts.
What exactly did Trump “order” yesterday?
Yesterday’s executive order has eight sections. Section One is called “Policy” and it’s an introduction explaining why Trump has issued this order. Short version: he thinks Twitter has been acting more like an old-timey publisher than like a bulletin board, and that it's biased against him and his supporters.
Sections Two through Six have the actual orders being given by the president, plus some statements of general policy that aim to redefine the country’s stance on several issues related to online communications. Section Seven defines “online platform” and Section Eight is a legal disclaimer.
The summary of what the Executive Order actually orders is this:
- Trump has ordered his Secretary of Commerce Wilbur Ross, in consultation with Attorney General William Barr, and acting through the National Telecommunications and Information Administration (NTIA), to file a petition for rule-making with the Federal Communications Commission (FCC) within 60 days.
- The petition Ross will file should request that the FCC propose regulations to clarify aspects of Section 230, particularly the circumstances under which a provider of an interactive computer service may not claim protection for making third-party content available, and the conditions under which an action restricting access to or availability of material is not “taken in good faith.”
- Trump also ordered Ross to request any other proposed regulations that the NTIA concludes may be appropriate to advance the president’s policy regarding what he considers free speech online.
- Trump ordered the head of each executive department and agency to review its agency’s Federal spending on advertising and marketing paid to online platforms, and to report findings to the Director of the Office of Management and Budget within 30 days.
- Trump ordered the Department of Justice to review the viewpoint-based speech restrictions imposed by each online platform and assess whether any online platforms are problematic vehicles for government speech due to viewpoint discrimination, deception to consumers or other bad practices.
- Trump announced that the White House will submit complaints of purported online censorship allegedly received by a website set up by the White House in May 2019 and called “the Tech Bias Reporting Tool” to the Department of Justice and the Federal Trade Commission (FTC).
- Because Trump cannot "order" the FTC to do things — he doesn't have authority over this independent agency — he is instead "asking the FTC to consider" taking action to prohibit "unfair or deceptive acts or practices in or affecting commerce."
- Trump is also asking the FTC to consider developing a report describing such complaints and making the report publicly available, consistent with applicable law.
- Trump is also asking the FTC to consider whether the complaints allege violations of law by large online platforms that are vast arenas for public debate, including the social media platform Twitter.
- Trump ordered Attorney General Barr to establish a working group regarding the potential enforcement of state statutes that prohibit online platforms from engaging in unfair or deceptive acts or practices.
- Trump ordered this group to develop model legislation for consideration by legislatures in states where existing statutes do not protect Americans from such unfair and deceptive acts and practices. The working group is ordered to invite State Attorneys General for discussion and consultation.
- The AG working group is ordered to consider the "Tech Bias Reporting Tool" complaints forwarded by the White House, and also "to start collecting publicly available information regarding increased scrutiny of users based on the other users they choose to follow, or their interactions with other users; algorithms to suppress content or users based on indications of political alignment or viewpoint; differential policies allowing for otherwise impermissible behavior, when committed by accounts associated with the Chinese Communist Party or other anti-democratic associations or governments; reliance on third-party entities, including contractors, media organizations, and individuals, with indicia of bias to review content; and acts that limit the ability of users with particular viewpoints to earn money on the platform compared with other users similarly situated."
- Trump ordered the Attorney General to develop a proposal for Federal legislation that would be useful to promote the policy objectives of this order.
Can that be summarized even further?
Yes. He asked his Secretary of Commerce and Attorney General to focus efforts in the next 30-60 days to do everything in their power to investigate online platforms, specifically Twitter.
He's also asking his appointees to put pressure on the supposedly independent FCC to clarify aspects of Section 230 based on Trump’s ideas that “conservative voices” are being censored by Twitter and other online platforms. Same for the supposedly independent FTC and commerce regulations.
He’s also asked for the formation of a “working group” to write model federal and state legislation based on their analysis of complaints against social media censorship forwarded by the White House from a “Tech Bias Reporting Tool” website they launched last year and from the opinions of state Attorneys General.
What does this mean for the Section 230 protections from liability for third-party content?
It’s unclear because it’s just a first step and it should be done through Congress. But, for what's worth, this morning Trump tweeted “REVOKE 230!”
Isn’t Joe Biden also critical of Section 230?
Yes. In January, Biden told the New York Times that “Section 230 should be revoked, immediately, should be revoked, number one. For Zuckerberg and other platforms. [...] It should be revoked because it is not merely an internet company. It is propagating falsehoods they know to be false.”
Today, a spokesperson for the Biden campaign told news site The Verge "that the former vice president maintains his position that the law should be revoked and that he would seek to propose legislation that would hold social media companies accountable for knowingly platforming falsehoods."
What does this mean for free sexual expression on the internet?
This is where it gets complicated.
Section 230 includes a subsection (c) that reads:
(c) Protection for ‘‘Good Samaritan’’ blocking and screening of offensive material(1) Treatment of publisher or speaker
No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.
(2) Civil liability
No provider or user of an interactive computer service shall be held liable on account
of—
(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or
(B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).
Although progressive groups like the Electronic Frontier Foundation are fond of calling Section 230 “the First Amendment of the Internet,” Section 230, as it is written allows for censorship on the basis of sexual expression.
Section 230 explicitly lets ISPs and platforms off the hook for discriminating against constitutionally protected speech if they consider the material “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.”
What does Trump’s Executive Order say about that "obscene" clause?
Trump’s executive order — supposedly drafted “to prevent censorship” — clarifies that he is very much in favor of censoring material that publishers or users "consider to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.”
According to the executive order, the limited protections provided by Section 230 should be construed with these purposes in mind:
- “to address early court decisions holding that, if an online platform restricted access to some content posted by others, it would thereby become a ‘publisher’ of all the content posted on its site for purposes of torts such as defamation”
- “[to provide] limited liability ‘protection’ to a provider of an interactive computer service (such as an online platform) that engages in ‘“Good Samaritan” blocking’ of harmful content,”
- “to provide protections for online platforms that attempted to protect minors from harmful content and intended to ensure that such providers would not be discouraged from taking down harmful material,”
- “to further the express vision of the Congress that the internet is a ‘forum for a true diversity of political discourse’”
But what happens when “political speech” and “sexual expression” intersect?
You mean as in highly politicized debates about the War On Porn, sexual education, access to reproductive health, birth control, artistic expression or the Free Speech and Free Commerce implications of promoting your OnlyFans on Twitter?
Don’t be silly. Neither Section 230 nor the current Executive Order address that Free Speech and First Amendment elephant in the room.
What will happen next?
Wilbur Ross and William Barr will send their requests for clarification, convene their working groups and forward the White House's “Tech Bias Reporting Tool” reports of “online censorship.”
In about a month, the federal government will begin reassessing how it doles out advertising money to various platforms, which could lend itself to rewarding the good boys (Fox News’ new best friend, Mark Zuckerberg) and punishing the bad ones (Jack Dorsey).
And then?
Unclear. If the Constitution is not grossly bypassed, nothing should change unless Congress passes legislation overhauling the 1996 Communications Decency Act.
Wouldn’t that at least clarify things?
In this writer’s opinion, it probably will not.
Part of the problem is that the internet is legislated by analogy; i.e. "This new digital thing is like this old physical world thing, so we should legislate the new digital thing like the old world physical thing."
Most of the conflict here arises because, in 1996, legislators did not understand online communication and debated whether it was “more like a bulletin board” or “more like a publisher.”
Unfortunately, legislative and judicial discourse has not moved very far beyond that debate in 25 years of consistent online communications.
So the real issue is how and when will Trump's supporters in Congress take his lead and change the law?
Correct. XBIZ spoke with an experienced adult industry attorney and First Amendment expert, Lawrence Walters, from the Walters Law Group, who confirmed that "the biggest concern is Congress being pushed into changing or repealing Section 230."
"It seems that support for this important statute is waning in both parties," Walters added.
Sounds grim. Is there any silver lining?
Regarding the Executive Order at least, according to Walters, yes.
"Ultimately, I don’t think the EO will mean much," the attorney stated. "It can’t undo 25 years of court decisions interpreting Section 230. The courts are free to simply ignore the EO going forward."
If the FTC decides to react, Walters continued, "it could result in some investigations or civil lawsuits against social media sites that claim to be bastions of free speech, but instead censor based on viewpoint."
"There has always been tension between consumer protection laws like those enforced by the FTC and the First Amendment when they are used against online platforms. Such lawsuits have the potential to strengthen Section 230 immunity."
