Tuesday, May 26, 2020, was an important day for social media.

It began with two tweets by President Trump (@realDonaldTrump) conveying his disapproval of mail-in ballots. He specifically called out California because Governor Newsom signed an executive order to send registered voters a mail-in ballot for the November election. In fact, five other states—Washington, Oregon, Utah, Colorado, and Hawaii—already have mail-in procedures in place. 

Twitter responded by flagging the tweets with a warning, “Get the facts about mail-in ballots,” although Twitter left the tweets in place. When users clicked the Twitter warning, they were directed to a page that said, “Trump makes unsubstantiated claim that mail-in ballots will lead to voter fraud.” The page went on to say:

“On Tuesday, President Trump made a series of claims about potential voter fraud after California Governor Gavin Newsom announced an effort to expand mail-in voting in California during the COVID-19 pandemic. These claims are unsubstantiated, according to CNN, Washington Post and others. Experts say mail-in ballots are very rarely linked to voter fraud.” 

The Twitter page continued, “Trump falsely claimed that mail-in ballots would lead to a ‘Rigged Election.” However, fact-checkers say there is no evidence that mail-in ballots are linked to voter fraud.”

What does the Trump Executive Order relating to social media say?

Trump’s tweets and the Twitter warnings set off a tirade of accusations and public discourse about the operating procedures and policies of social media platforms. Interestingly, the Executive Order specifically calls out Twitter, Facebook, Instagram, and YouTube (YouTube is owned by Google).

The Executive Order, which was signed on Thursday, May 28, 2020, contends that social media companies: 

• violate the spirit of the First Amendment to the United States Constitution, which prevents the government from making laws “abridging the freedom of speech”
• practice selective censorship that is harming the national discourse
• engage in censorship and flag content that does not violate any stated terms of service
• make unannounced and unexplained changes to company policies that have the effect of disfavoring certain viewpoints
• delete content and entire accounts with no warning, no rationale, and no recourse

Twitter, Facebook, Instagram, and YouTube wield immense, if not unprecedented, power to shape the interpretation of public events; to censor, delete, or disappear information; and to control what people see or do not see. – Presidential Executive Order, “Preventing Online Censorship,” May 28, 2020

What does the Executive Order “Preventing Online Censorship” hope to achieve?

The Executive Order references Section 230(c) of the Communications Decency Act which provides social networks with immunity from liability. Specifically, the Order requests that the “scope of the immunity should be clarified.”

In the context of Section 230(c), the accusation is that social platforms do not make a good faith effort to promote free speech and remove objectionable content, but rather are utilized to “engage in deceptive or pretextual actions stifling free and open debate by censoring certain viewpoints.”

Another accusation is that by restricting access to content, social platforms are engaged in “editorial conduct,” and as such, should be “exposed to liability like any traditional editor and publisher….” 

Where does social media go from here?

1. The controversy surrounding the responsibilities of social networks could impair ad spend by end clients and agencies, the crux of the social media platforms’ current revenue model. This financial impact would be very real. It is certainly a possibility. The debate surrounding Facebook’s position, for example, manifested itself in a company-wide virtual walkout on Monday, June 1, as Facebook’s own employees took issue with Mark Zuckerberg’s determination to minimize censorship on the platform and his refusal to allow the flagging of controversial posts by President Trump. 
2. In the short-term, any legislative proposals that develop due to operating clarifications requested by the Executive Order will be challenged in the courts, and therefore, changes to how social media platforms currently vet permissible content may be a long time in coming. The Executive Order certainly did not appear to ruffle Twitter. On Friday, May 29, Twitter again flagged the President’s tweets; in this instance, the tweets were about the George Floyd protests and were flagged as policy violations for their “glorification of violence.” 
3. The position of the US government will become clear as two major agencies are now more formally involved. In 30 days, the Executive Order compels the Federal Trade Commission to review its spending on advertising and marketing dollars paid to social platforms to protect Federal taxpayer dollars from financing online platforms that restrict free speech. The Federal Communications Commission (FCC) has been asked to propose regulations to clarify Section 230(c) of the Communications Decency Act. 
4. The states have also been tasked to play a role in potential regulation of social platforms. The Executive Order mandates reviews by the attorney generals for the states. It compels them to establish working groups to evaluate potential enforcement of state statutes that prohibit online platforms from engaging in deceptive acts or practices. Therefore, some restrictions on social media companies could come at the state level. 

As we look ahead, we believe the potential changes to the way social media companies operate could be significant. The digital marketing landscape, and particularly social media, has always been fluid, but recent events may act as a catalyst for change. Keep following our blog and social media for updates, and if we can help you maneuver the unchartered waters ahead in social media, please contact us.