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Trump’s Proposed Social Media Order Is Wildly Unconstitutional and Illegal

donald trump sits at an empty desk

Donald Trump is on course to issue a new executive order which, like many of his executive orders, will be deeply unconstitutional and rely on powers he simply does not have. This order, like most of his others, will be a petty, spiteful, and totally misguided effort.

The proposed order, a draft of which has been seen by CNN and other news organizations, is being dressed up as an order “Preventing Online Censorship,” but what it really is is a hissy fit of epic proportions by Trump over the fact that Twitter placed a disclaimer on a recent tweet of his, after he made false allegations about vote-by-mail.

The order takes aim at Section 230 of the Communications Decency Act, a section which has been characterized as “one of the most valuable tools for protecting freedom of expression and innovation on the Internet.” The Communications Decency Act of 1996 was meant to regulate and restrict the internet in the days when it was new, but there were obviously objections to that—so enter section 230, which states: “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.”

What does that mean? It means that platforms and websites that publish content and speech are not themselves liable for the content of that speech. It means that platforms like Twitter or Facebook are not subject to other laws that regulate speech or create liability for that speech, and they can’t be sued or prosecuted for it the content on their platforms.

Section 230 is a big deal because it gives people a platform and allows the platforms to persist even if the content might otherwise be objectionable. Trump’s order wants to change the immunity platforms enjoy by clarifying the scope of that immunity. The draft order somewhat hilariously states that platforms are “engaging in selective censorship that is hurting our national discourse.”

Before we go further, let us clearly states that this is not true. Adding a disclaimer to a provably false statement made by an elected leader is not censorship, it is a public service. Trump wants to dress up this order in a costume of protecting free speech, but all he really wants is the freedom to speak falsely on social media at all times.

Trump’s proposed order seeks to curtail tech companies that aren’t operating in good faith and potentially subject them to liability. It also proposes setting up a reporting tool for tech bias managed by the White House Office of Digital Strategy which would “collect complaints of online censorship and other potentially unfair or deceptive acts or practices by online platforms and shall submit complaints received to the Department of Justice and the Federal Trade Commission (FTC).”

That part is absolutely terrifying and terrible, but it also sounds completely unmanageable and useless. An office or tool for people reporting media bias? Can you imagine how quickly that would be overwhelmed by reports from anyone who gets offended by Twitter on either side of an issue?

The big question is, of course, can Trump even do this? And the short answer is no.

Presidents don’t get to say how laws are interpreted or what they mean. That’s a foundational principle of American law. Only a court can say what a law means. “It is emphatically the duty of the Judicial Department to say what the law is,” wrote Chief Justice John Marshall in Marbury v. Madison. That case is the most important one in American law because it established that a President (in that instance, Thomas Jefferson) didn’t get to say what laws meant. Despite what Donald Trump would prefer, he can’t undo that.

Even though the order is full of its own false statements, such as accusing social media of “invoking inconsistent, irrational, and groundless justifications to censor or otherwise punish Americans’ speech here at home,” the order is still a dangerous, unconstitutional reach by the President for power he doesn’t have.

What will the result be here? Well, it could lead to lawsuits against social media platforms by those who feel their speech has been censored … but that won’t work, because free speech protections only apply to government actions. Private companies have always had the discretion to control the content they put forth.

If Trump himself wants to sue Twitter for fact-checking him, that won’t work either, because saying something is a lie is not censorship. Despite his desire to put us in a world where the President can say the truth is a lie and the lie is the truth, we’re not there yet, and Twitter is doing their civic duty by fact-checking him. It’s also notable that twitter has not yet placed this kind of disclaimer on any of Trump’s many other false statements (like accusing Joe Scarborough of MURDER!).

This executive order, if and when it is actually issued will, like many of Trump’s executive orders, likely be immediately challenged in court and will hopefully be struck down. But even so, the impact will be felt because it will serve as a signal to social media that the President does not believe he is subject to the law or the truth. He’s putting a target on Twitter’s back and it’s a dangerous move by and already dangerous and deranged man.

Will this be what it finally takes for Twitter to simply ban or remove Trump from the platform? We can only hope. Tweeting is not a right, and no one is entitled to use the platform of a private company. It might finally be time for Trump to learn he can’t bully the truth out of existence.

(via CNN,  Image: Mark Wilson/Getty Images)

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Jessica Mason (she/her) is a writer based in Portland, Oregon with a focus on fandom, queer representation, and amazing women in film and television. She's a trained lawyer and opera singer as well as a mom and author.