Suzanne Nossel

Photo by Beowulf Sheehan

Every Friday, we discuss tricky questions about free speech and expression as they pertain to the ongoing pandemic with our CEO Suzanne Nossel, author of the forthcoming Dare to Speak: Defending Free Speech for All, in our weekly PEN Pod segment “Tough Questions.” In this week’s episode, we talk about President Trump’s new executive order aimed at limiting legal protections given to social media companies and what the implications are for free speech. Check out the full episode below (our interview with Suzanne begins at the 14:28 mark).

Late Thursday, President Trump signed an executive order aimed at limiting the legal protections afforded social media companies from the Oval Office. It seems like some of this is rooted in this grievance by the president that Twitter and other platforms are censoring conservative speech, but also in an incident that popped up earlier this week. Can you walk us through this order and what it means?
 The president has long accused the social media platforms of targeting conservative speech and favoring progressive speech. These companies are headquartered in Silicon Valley; I think it’s true that most of their executives skew liberal, and there are a lot of people on the platforms who may disagree with the president on all kinds of issues, but there has never been any real proof of this bias in the platform. But there is a suspicion and a belief that these companies are out to get conservative users and are quick to shut them down, to delete their posts, and that their speech is policed in a way that isn’t done on the other side of the political spectrum. So that’s been a longstanding thing.

The White House opened up its own channel for people to submit complaints of social media bias to them, and they were looking at measures that they might take to try to address that, but it seemed to be sort of a backburner issue. And then what we saw this week was a first, which was the president tweeted about issues that he claimed arose in relation to balloting by mail.

There is, of course, great concern about the election coming up, and how and whether it’s going to be safe for people to go to the polls, so many states are taking steps to expand the availability of balloting by mail, sending out applications for absentee ballots, and making that much more accessible. The president tweeted, saying that this raises all sorts of issues and there’s a greater probability of fraud in relation to ballot by mail. And Twitter, for the first time, marked those tweets by the president and put a link saying that if you want more information about it, you might look here, including a report from CNN. Essentially, they said that the president’s claims were untrue and that the issues that he claimed were associated with balloting by mail are false. So the president went ballistic at the notion that he was being fact-checked by a social media company and said his free speech rights were being infringed upon.

“Instead, we have this lengthy and complicated, and I think, in several respects, extralegal executive order that exceeds the bounds of executive authority, travels over the provenance of the Congress, and tries to rewrite the law. It does a lot of things. Exactly how it will be applied remains to be seen, but what’s crystal clear here is this is an act of vindictiveness.”

Then we got wind on Wednesday night that an executive order was in the works. It was pretty clear they had taken some pieces that had been written up in relation to this issue of political bias, and that they got supercharged by the president’s ire over being fact-checked by Twitter, and now he was ready to pounce with something that probably has been in the works, but on the back burner for some time.

Then last night, on Thursday evening, they issued this executive order. It really reads like something that was pulled up from someone’s computer file and then infused with some ritual anger from the president—what you might imagine him saying from behind the White House podium when he’s angry about something. And he did make a bitter-sounding set of remarks to introduce this social media order, saying he would have shut down Twitter if he could have, if he could find a way to legally do so. Instead, we have this lengthy and complicated, and I think, in several respects, extralegal executive order that exceeds the bounds of executive authority, travels over the provenance of the Congress, and tries to rewrite the law. It does a lot of things.  Exactly how it will be applied remains to be seen, but what’s crystal clear here is this is an act of vindictiveness. He was angry at Twitter for what they did earlier this week, and he took that out on, not just them, but all social media platforms, all websites, in the form of this executive order that I think can only be seen as punitive.

And for us at PEN America—as you know, we sued the president almost two years ago for his threats and acts of retaliation against journalists and the media, based on reporting or questions that he disliked. This is precisely part of that pattern, going after those that say things he dislikes and using the power of the federal government to exact reprisals, which is in violation of the First Amendment and an abuse of power.

“My concern is really, by placing the government in this position, where he’s asking federal agencies to intrude in this area, to make rules and force the companies to police content at penalty of liability—that, to me, is even more concerning. The idea that rather than having social media companies serve as our content police, we’re going to have the government do it—it’s prohibited by the First Amendment, and I think for very good reason.”

Can you help us distill what’s in it, and tell us whether or not you think it passes the smell test?
 I’ll say one thing to begin with—some of the issues that the executive order raises are legitimate. There are concerns about the role that social media platforms play in policing content and the discretion that they have. The degree to which political or profit-making or other sorts of considerations are brought to bear, and the social media companies, as the executive order points out, are positioned to control great swaths of what we used to call our public square.

So much of our discourse happens on Facebook, Twitter, Google. And so, the decisions they make about what the parameters of permissible content are—what you are and aren’t allowed to say, what posts are going to be deleted, what’s going to be algorithmically suppressed—those decisions end up having a great deal of influence over our discourse. To the extent it’s raising those concerns, they are legitimate. But the question is, what do you do about them? And you know, my concern is really, by placing the government in this position, where he’s asking federal agencies to intrude in this area, to make rules and force the companies to police content at penalty of liability—that, to me, is even more concerning. The idea that rather than having social media companies serve as our content police, we’re going to have the government do it—it’s prohibited by the First Amendment, and I think for very good reason.

Probably the most controversial and consequential aspect of the executive order relates to Section 230 of the Communications Decency Act, which is a provision that immunizes the social media platforms from liability for content that is posted on the platforms. If you post content that’s unlawful on Twitter or on Facebook, the company cannot be held liable. For example, if it’s a threat, harassment, or in some other way, unlawful content—and there are a few carve-outs and exceptions, including child pornography—but it’s a very broad grant of immunity from liability, and people give that provision credit for the internet as we know it. A lot of people believe that the expansive and sweeping internet as we know it would disappear, if liability for content posted on those platforms were made possible. What the president essentially called for is to look into how the platforms can be held accountable for certain kinds of what he’s calling editorial decisions, so it would be things like the decision to post the fact-check, in relation to his tweet. He wants to explore whether and how companies can be held liable for something like that.

“The president has made great use of Twitter to build his following and expand his ideology, in some cases, I think, to mislead, deceive, and cast aspersions, and now he’s upset that the same thing is happening in his direction, and that’s something that the platform has done—cast him in a negative light. I think it’s part of what you bargain for when you go out on these platforms.”

Section 230 was passed in 1996. He can’t just override Congress, can he?
 No. Section 230 is law; this executive order cannot rewrite our law. If that provision is going to be amended, it needs to be taken up by the Congress. There are reasonable minds that think Section 230 should be pared back in some way, in that the grant of liability is too sweeping and blanket, and that there needs to be, for example, a proviso that would require the companies to act in good faith. There is a good faith provision that applies to a portion of Section 230 that some would like to see expanded. So I think that is a valid debate, but this is not the way to go about it. You don’t issue a hastily worded executive order that attempts to override the prerogatives of Congress.

You put out a statement late yesterday, saying this was an instance of the president reaping what he has sown. What did you mean?
 The president has made great use of Twitter to build his following and expand his ideology, in some cases, I think, to mislead, deceive, and cast aspersions, and now he’s upset that the same thing is happening in his direction, and that’s something that the platform has done—cast him in a negative light. I think it’s part of what you bargain for when you go out on these platforms. It is very free-wheeling. Twitter has free speech rights as well, and the president can’t override those.

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