How Trump’s executive order on online free speech could upend content moderation

Amid all the executive orders signed by President Donald Trump during his first week in office came a promise to “restore freedom of speech” and end federal censorship. Keen observers may note that freedom of speech is protected by the Constitution.

But the order seems to have something more specific in mind. It calls out what it characterizes as the Biden administration’s pressure campaign on social media companies to “moderate, deplatform, or otherwise suppress speech under the guise of combatting misinformation.”

Will Oremus, tech news analysis writer at The Washington Post, told Marketplace’s Meghan McCarty Carino that the order is a signal of the president’s continued focus on content moderation online. The following is an edited transcript of their conversation:

Will Oremus: What [Trump is] doing, though, is equating censorship with online content moderation and rules around what people can say online. And in particular, he uses the executive order to assert that the Biden administration abused its power when it talked with tech companies, or potentially pressured tech companies, to take down certain types of misinformation, conspiracy theories, mostly stuff around COVID-19 and the vaccines, and some around January 6 and the 2020 election.

Meghan McCarty Carino: And this is kind of a practice that has come to be called jawboning.

Oremus: That’s right. So jawboning is an older term, but it refers to when someone in government uses their position of authority to try to influence the decisions of private companies. It’s not a legal term, there’s no law against jawboning, but when you’re jawboning private companies around their decisions about speech, that could be a form of censorship by proxy, depending on how it’s done. However, when the government is telling social media companies, or if the government were telling social media companies, what their speech policies should be, then that could be deemed government censorship. And so that was at issue in a case that came to the Supreme Court last year called Missouri vs. Biden. And so Trump is going back to that and saying, that was, in fact, censorship and we’re going to make sure that doesn’t happen anymore — even though the Supreme Court actually did not say that it was censorship.

McCarty Carino: This Trump order calls for investigating the actions of the federal government during the Biden administration, to look for free speech violations. I mean, does this mean that they’re going to be relitigating that case?

Oremus: I think it does. Now, when you’re a government official, you have a right to free speech as well. Joe Biden can say, “I think it’s bad that there is a lot of COVID vaccine misinformation on Facebook or on Twitter,” that’s within his right. The question is, did he pressure the companies to change their actions? Did he threaten them? Did it rise to the level of coercion? The Supreme Court hasn’t found that so far. But [that case is] now back in a lower court in Louisiana. And here’s the funny thing, because Biden is no longer the president, Trump is now the defendant in that case. So the case is now, in fact, called Missouri vs. Trump, and so the Trump administration will probably take a very different approach. It may not even try to defend the Biden administration’s actions in that case. So we’ll have to see how that case gets resolved at the lower level.

McCarty Carino: Many free speech advocates have been very troubled by the actions of the Biden administration — and also, I would say, Republicans who have also engaged in this kind of activity in the past. Does this Trump order please folks like that, that are concerned about government influence on social media companies?

Oremus: Yeah, it’s a good question. So even First Amendment advocates who were troubled by the Biden administration’s contacts with social media companies are not buying necessarily Trump as the defender of free speech and the true enemy of jawboning. Trump himself has engaged in plenty of jawboning. In his first term, he did it when he got upset by his own tweets being fact checked on Twitter (this was pre-Elon Musk), and within days he had come out with an executive order saying “we should look at Section 230.” A lot of First Amendment advocates say that seemed like it might have crossed the line into illegal censorship by Trump. So this executive order, one scholar told me, it feels like an attempt to rewrite history, and to say that when Biden did it, it was illegal censorship, and we’re going to investigate that, and we’re not going to tolerate that, but it doesn’t mention at all Trump’s own attempts to influence tech companies, which are almost certain to continue, and in some ways, already are continuing at the beginning of his second term.

McCarty Carino: Let’s talk a bit more about the potential effects of this order on content moderation more broadly. What might this mean for the online information ecosystem for users on social media?

Oremus: The upshot of all this for social media users is that they’re going to find across most of the major platforms, fewer restrictions on what they can say, and they might also find themselves subjected to more slurs or harassment or discrimination and find that they don’t have as much recourse in successfully reporting those posts as they used to. In general, we will see Meta’s platforms and maybe other platforms moving more in the direction of X under Elon Musk, and because Trump has made it so clear that he does not want to see social media companies moderating content. And we’ve seen from his first term that getting on Trump’s bad side just creates a succession of headaches for tech companies.

McCarty Carino: And it seems like even before Trump took office, we saw a number of organizations, social media platforms, moving in that direction already.

Oremus: So there’s been this years long Republican-led push to equate content moderation with censorship. It has had an impact already on the landscape across social media and also nonprofits and academia. We’ve seen universities disband groups that were researching misinformation because those groups were getting subpoenaed by Republicans in Congress, and they were getting labeled as censors, and they were drawing criticism and harassment and all that sort of thing. And some universities just decided, well, we’re better off without this. And so misinformation research has declined as a field. And more recently, we’ve seen Mark Zuckerberg and Meta pull back on content moderation. Mark Zuckerberg has gone back to saying that Facebook and Instagram and Threads should air on the side of free speech, and this is very much in keeping with this Trump led and Republican led push to stop moderating what people say online.

McCarty Carino: We’ve already seen recent efforts targeting this NewsGuard, which rates online publications with these nonpartisan transparency nutrition labels for consumers, but also geared at advertisers who might want to have more details about sites that potentially host their advertising. What’s been going on there?

Oremus: Yeah, so we wrote about NewsGuard last month as an interesting window into some of the effects that this campaign against not only content moderation, but also against fact checking. You know, a lot of conservatives these days equate fact-checking with a liberal project to suppress conservative views. And so this company NewsGuard was actually founded in an explicitly nonpartisan way, and they set out these objective criteria by which they rate the credibility of news sites. But they’ve been cast as part of this censorship cartel. And so Brendan Carr, who is an FCC commissioner, who is now the chair of the FCC under Trump, wrote a letter seeming to threaten tech companies that work with NewsGuard, that use NewsGuard’s ratings in their algorithms or to help with their search results. One example is if you have Microsoft Edge as your browser, you can actually turn on NewsGuard’s ratings and see them every time a publisher comes up in your search results. Carr said, hey, working with a group like NewsGuard really makes you guys look like sensors, and just keep in mind we can always take another look at Section 230 and your liability shield if we find that you’re not moderating in good faith, and working with NewsGuard would be an example of not moderating in good faith. So NewsGuard is now under threat almost entirely from the right. I mean, when it started out, it got criticism from both sides, but now it has become sort of demonized on the right, and it’s fighting for its own reputation as a nonpartisan source for credibility ratings.

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