Details of the draft executive order have now leaked. The White House is intending to order the Federal Trade Commission (FTC) and Federal Communications Commission (FCC) to begin policing the content moderation practices of online platforms. This would require government agents to begin reviewing and judging the content of speech on these platforms as well as the content moderation practices of these private firms. Such an order would not only be a huge violation of the First Amendment but would also be constitutionally inappropriate given the independent regulatory agency status of the FTC and FCC.
The category of protected speech is already and necessarily exceptionally broad and not just limited to political speech. This means that to enforce against claims of political speech bias or “censorship” the government would essentially be creating tiers within the category of protected speech, with certain political speech at the top. This would amount to a sort of “Animal Farm”-style approach where all speech is free, but some speech is freer in the eyes of the government—a blatant First Amendment violation.
The other option would be to force companies to allow their platforms to be flooded with all sorts of protected speech that many people do not wish to see when using Facebook, Twitter, or another platform. This includes obscene content such as violence and pornography as well as various forms of spam. Preventing platforms from filtering out this content would violate the First Amendment by infringing upon the speech and association rights of the private companies operating them.
The other major constitutional issue with the order, as reported, is the fact that it is a policy directive from the White House to not one, but two independent regulatory agencies. As the term implies, while these agencies are technically part of the executive branch, they are ultimately designed by Congress to operate outside of direct control of the president, minus appointments of various officers.
During the previous administration, Republican officials rightfully complained about President Obama exerting “undue influence” on the FCC. To quote a Senate Homeland Security and Governmental Affairs Committee majority report:
Congress established the FCC as an independent agency with the mission of regulating interstate and international communications within, from, and to the United States. As an independent agency, the president’s influence over the FCC, by design, should be limited. For example, the president’s power to remove officers is not the same with leaders of an independent agency as it is with subordinate executive branch officers. The President can only remove independent agency heads ‘for cause,’ meaning that they cannot be removed for political disagreements. These statutory limits on the president’s power over independent agencies— like the FCC—demonstrate the importance of maintaining the agency’s independence.
An executive order directing specific policy actions by the FTC and FCC far exceeds the kind of political pressure, detailed in the above report, the Obama administration inappropriately exerted at the time.
Should this executive order become official, it will be a significant abandonment of conservative principles in the name of combatting unproven allegations of systemic anti-conservative bias—bias which in and of itself is protected by the First Amendment anyway.