Trump's executive order cracking down on 'online censorship' has nothing to do with free speech

• President Donald Trump signed an executive order on Thursday purporting to fight online censorship by empowering federal regulators to strip social media companies' broad authority to moderate speech.
• Legal experts say Trump has scant authority to enforce the order, which would circumvent Congress and violate longstanding judicial precedent.
• But the unprecedented move could scare social media giants away from even modest moderation of disinformation on their sites — an outcome that serves Trump's political aims.

President Donald Trump says he's battling the nation's social media companies in the name of free speech.

"Big Tech is doing everything in their very considerable power to CENSOR in advance of the 2020 Election," he tweeted on Wednesday. "If that happens, we no longer have our freedom. I will never let it happen!"

The president has long made unsubstantiated claims that social media platforms are biased against conservatives, and mulled executive action to regulate the companies.

But he took his biggest step towards cracking down on online forums this week after Twitter flagged and fact-checked two of his tweets that contained false information about mail-in voting.

Twitter's incremental but unprecedented move prompted Trump to lash out against the company and threaten to "strongly regulate" or shut down online platforms.

On Thursday, he signed an executive order threatening penalties against social media companies over allegations of bias against conservatives.

The order seeks to empower federal regulators to amend Section 230 of the Communications Decency Act, which gives social media companies broad authority to moderate speech on their platforms.

The move was clearly retaliation for Twitter's fact check and, Democrats argue, a distraction tactic as the coronavirus pandemic continues to ravage the country.

Shortly after signing the order declaring free speech "the bedrock of American democracy," Trump told reporters that if it were legal for him to unilaterally "shut down" Twitter, "I would do it."

But he declined to delete his own account — his most important and preferred way to communicate with the public — and instead emphasized how much power he has to drive traffic and revenue to the site.

'Not how the Constitution works'

Legal experts say Trump has scant authority to enforce the order, which would circumvent Congress and violate longstanding judicial precedent. But they are concerned the unprecedented move will scare companies away from even modest moderation of disinformation on their sites.

Critics argue the president is attempting to weaponize the Federal Communications Commission and other arms of the federal government to police online speech he disagrees with — the very definition of a First Amendment violation.

"This is not how the Constitution works," Ashkhen Kazaryan, director of civil liberties at the libertarian think tank TechFreedom, told Business Insider on Thursday. "The First Amendment protects Twitter from Trump. It does not protect Trump from Twitter."

First Amendment experts are concerned that Trump's attacks will scare social media giants into framing neutrality as bipartisanship, rather than applying a non-political standard to policing content on their sites.

"Bipartisan is not the same as neutral and I think the risk here is that the political parties are really duking out a political fight with the platforms as the site for a proxy war over what's basically a cultural clash," Hannah Bloch-Wehba, a law professor at Drexel University who specializes in civil liberties and cyber issues, told Business Insider.

Trump's motivation for battling with social media giants over what he considers censorship likely has little to do with free speech.

If the president cared about First Amendment protections online, he would stop violating Twitter users' free speech rights by blocking them from his account — a move the Second Circuit Court of Appeals deemed unconstitutional last year.

Instead, Trump appears to be waging a political war to pressure social media giants to give him full reign to spread his messages, regardless of how truthful they are.