It was, in 2020 terms, a geologic era—nearly a full three weeks—ago that Donald Trump issued his “Executive Order on Preventing Online Censorship.” The proclamation thunders against Twitter for fact-checking a false presidential tweet, then alleges a far-ranging conspiracy to stifle conservative voices on social media. It somewhat vaguely threatens to change Section 230 of the Communications Decency Act—which protects websites that host or republish speech—unless these media get with the MAGA program.
Even the threat to do that is grossly unconstitutional (Congress writes the law, y’know) and, beyond that, just plain tacky. Having built his political career on the willingness of Twitter to allow defamatory and indecent tweets, it ill behooves Trump to turn on the platform when it displeases him. In addition, changing the act wouldn’t get Trump the result he wants—without Section 230, Twitter might find itself enmeshed in a costly defamation suit the next time it allows Trump to accuse a TV host of murder and traumatize an innocent family—and thus it might decline to post his tweet.
My attention, however, was caught by a curious case citation in the order that has gone mostly unnoticed. In Section 4, “Federal Review of Unfair or Deceptive Acts or Practice,” the order reads: “It is the policy of the United States that large online platforms, such as Twitter and Facebook, as the critical means of promoting the free flow of speech and ideas today, should not restrict protected speech. These sites are providing an important forum to the public for others to engage in free expression and debate. Cf. PruneYard Shopping Center v. Robins, 447 U.S. 74, 85-89 (1980).”