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After Executive Order Condemning Online Censorship, Should Social Media Companies Fear Liability?

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By Joseph Fawbush, Esq. | Last updated on

Section 230 of the Communications Decency Act has long been a contentious law. It provides liability protection for internet companies that host third-party content. Under Section 230, online platforms may use internal standards and user agreements to determine when and how to remove or flag content that is “obscene, lewd, lascivious, filthy, excessively violent, harassing or otherwise objectionable." Online companies that do so “in good faith" are subsequently protected from liability for content it may miss. It also prevents the courts from treating social media companies as publishers of third-party content, which makes it so that social media companies cannot be sued for defamation for content posted by users.

Background of CDA Section 230

Congress passed the Communications Decency Act in 1996 in order to help fledgling internet companies remove pornography uploaded by third-party users without fear of liability. But as the world moved online, this law became increasingly important.

The debate boils down to whether large online platforms are publishers or distributors. Publishers can be held liable for the content they publish through defamation and other torts (think traditional news media). Social media companies argue they are distributors of content, not publishers, and do not make editorial decisions. Distributors cannot be sued for the content posted by third parties since they are not responsible for the messaging. Section 230 flatly states that no “interactive computer service" such as social media platforms “shall be treated as a publisher." In other words, they can't be sued for defamation and other torts for the content users post.

To summarize, Section 230 does two things:

  • Prevents social media companies from being sued as a "publisher" of content
  • Prevents social media companies from being held responsible when it flags or removes objectionable content in good faith. 

Trump's Executive Order

In response to a presidential tweet getting fact-checked by Twitter, President Trump issued the Executive Order Preventing Online Censorship. This EO targets the part of Section 230 that prevents liability for removing content in good faith. 

Briefly summarizing, the EO:

  • Condemns selective censorship and calls for social media companies that engage in “editorial" conduct to lose liability protection
  • Calls on the Department of Commerce (through the National Telecommunications and Information Administration) to file a petition for rulemaking for the Federal Communications Commission to propose regulations to clarify when internet companies act in good faith when removing or flagging content
  • Calls for all federal agencies to review their social media spending and report back the amount they spend, along with any statutory authority they have for removing that spend
  • Calls for the Federal Trade Commission to review and take action against social media companies it finds to engage in practices that do not abide by their terms of use (i.e. who may be engaging in deceptive trade practices)
  • Calls for a state AG investigation into whether Twitter or Facebook engage in discrimination

The FCC's Role in Regulating Social Media Is Small

The President of the United States cannot, of course, amend an existing law. Nor can the Executive Branch interpret a law for the courts. An executive order can, however, direct federal agencies (with some exceptions).

So, could the FCC enforce regulations regarding when an interactive computer service engages in bad faith in removing objectionable content? The answer is: Probably not.

Section 230 does not give the FCC any authority to take enforcement action – Section 230 is directed at the courts. Federal courts have held that when a statute is ambiguous, a federal agency can step in to fill the gaps. The EO appears to be banking on the term “good faith" to be ambiguous. However, the FCC itself has relied on the interpretation that Section 230 does not allow it to interfere with interactive internet companies.

If the FCC did argue Section 230 gives the FCC broad regulatory authority, it would have an uphill battle in courts to show that this interpretation is not arbitrary and capricious, since it would be reading the same statute in two contradictory ways. Further, even if “good faith" is ambiguous, the FCC would still have to get around the fact that Congress wrote in plain language that social media companies cannot be treated as publishers. 

President Trump has indicated he will push Congress to amend Section 230. If the Trump Administration wishes to alter the liability shield social media companies currently enjoy, Congressional action would appear to be the best route to do so.

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