The executive order Trump could use to take on Twitter and Facebook

A draft of an executive order that President Donald Trump may sign as soon as Thursday could dramatically expand the government's ability to punish social media platforms, marking the Trump administration's most aggressive salvo yet in its battle against alleged anti-conservative bias on platforms including Twitter and Facebook.

A draft of the expansive executive order, circulated to stakeholders and obtained by Protocol late Wednesday night, would pull multiple levers of governmental power — including federal agencies, the U.S. attorney general and the White House — in order to blast the tech giants over allegations that their platforms censor conservative voices. The executive order comes on the heels of a bitter, days-long fight over Twitter's decision to fact-check one of Trump's recent tweets — and five months before the presidential election, signaling that Trump believes it could be a galvanizing issue for his base amid a pandemic that has killed more than 100,000 people in the U.S.

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"Big Tech is doing everything in their very considerable power to CENSOR in advance of the 2020 Election," Trump tweeted on Wednesday night. "If that happens, we no longer have our freedom. I will never let it happen! They tried hard in 2016, and lost. Now they are going absolutely CRAZY. Stay Tuned!!!"

The White House has mulled taking action against social media companies for years, circulating a draft of a similar executive order as recently as last year. Last May, the White House launched a tool for reporting social media "bias," which is referenced multiple times in the executive order, and the president has griped publicly and often about his concerns that Twitter and Facebook are conspiring against him.

The White House declined to comment on the record.

"In a country that has long cherished the freedom of expression, we cannot allow a limited number of online platforms to hand-pick the speech that Americans may access and convey online," the draft reads. "When large, powerful social media companies censor opinions with which they disagree, they exercise a dangerous power."

The executive order takes great pains to avoid some obvious constitutional concerns around the White House's ability to dictate how private companies should deal with speech espoused by their users, but it could still run into a range of legal challenges. The White House broadly argues that the top social media platforms should be treated as "public squares" within which speech is protected by the First Amendment, while the tech industry has argued that the law enables private companies to make choices about how they treat content on their platforms.

As written, one section of the order would require the National Telecommunications and Information Administration, a small agency within the Department of Commerce, to file a petition asking the FCC to review Section 230, tech's prized liability shield. The section heavily implies that online platforms could be considered publishers of content under certain circumstances — and therefore could be held directly responsible for the content they host, a nightmare for any social media platform fearing a slew of lawsuits over every moderation decision.

Another section would forward complaints of anti-conservative bias filed with the White House over to the FTC, where they could be reviewed as examples of "unfair or deceptive business practices" — technically one of the FTC's central mandates.

The draft order would also ask the U.S. attorney general to establish a working group "regarding the potential enforcement of State statutes that prohibit online platforms from engaging in unfair and deceptive acts and practices." It would invite the country's state attorneys general — nearly all of whom are already involved in antitrust lawsuits against Facebook, Google or both — to participate in the consultation.

In one section aimed directly at the companies' bottom lines, the draft order would encourage federal agencies to pull back their ad spending from platforms like Facebook and Twitter if it's found the platforms have imposed "viewpoint-based speech restrictions." Federal agencies spent about $1.5 billion on advertising and PR over the last 10 years, according to a recent government report. A significant amount of that money goes toward public service advertisements — for instance, this year, the U.S. Census announced a $500 million public education and outreach campaign featuring more than 1,000 advertisements.

Researchers have been unable to unearth any significant evidence that the social media platforms routinely censor conservative voices. But it has become something of a rallying cry on the right, as policymakers and pundits alike accuse the platforms of stifling their perspectives — an argument that echoes a decades-old debate over whether the mainstream media is "too liberal."

It's unclear what will ultimately come of the order, versions of which have been around for years. Previous controversial executive orders signed by Trump have ultimately proven to be toothless or largely served as a political messaging strategy.

But it's the first time the White House has followed through on threats to take action against the social media platforms after years of conservative criticism, often from the president and his surrogates. On Wednesday alone, Republican Trump allies Sen. Josh Hawley and Matt Gaetz both said they will soon announce Section 230 legislation to address issues of bias.

Fox News on Thursday night devoted significant airtime to the issue of bias on social media, particularly taking on Twitter and its employees for fact-checking a tweet about mail-in ballots from Trump.

"Congress has the power to defend your free speech online," said Tucker Carlson, the Fox News host with close ties to the White House. Carlson was referring to stripping away Section 230 protections. "The White House does, too, and yet they've done absolutely nothing so far to help you."

Later in the segment, Carlson asked Republican FCC Commissioner Brendan Carr why nothing had been done. Carr suggested the administration could take on the social media companies by overhauling Section 230 or considering their promises "unfair and deceptive business practices."

"Doing nothing at this point is not an option," Carr said.

A draft of the executive order, circulated to stakeholders and obtained by Protocol late Wednesday, is below:

EO - Preventing Online Censorship.pdf