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Draft White House Executive Order Aimed at Social Media Companies Would Violate First Amendment

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Following yesterday’s Politico report about a draft executive order aimed at social media companies’ policies, CNN obtained a copy of the proposed order on Friday.

CEI President and CEO Kent Lassman said: 

"Speech is inherently a matter of private action. It is walled off from government depredation by the First Amendment precisely because language is a rudiment of reason, the very mark of humanity that separates us from animals. It is unnatural to assign to another the responsibility to police speech. If launched as a genuine White House policy, this trial balloon will crash spectacularly as people learn of its implications beyond the narrow emotionally laden shouting matches of any given day. The only—legitimate and legal—restrictions on speech must flow from private not public action."

CEI Vice President for Policy Wayne Crews said:

“President Trump's proposed compelled speech executive action would require a significant government apparatus to oversee it, as would the legislative proposals we have seen from Republicans like Sen. Josh Hawley (R-MO). If the right’s concern is the left’s presumed dominance of discourse, the remedies of treating Facebook, Google, Twitter and the like as monopolies or common carriers would worsen the problem. Requiring that they ‘certify objectivity’ will not protect the public nor conservative speech, but deliver the Internet into the administrative state’s clutches, as well as violate the First Amendment. 

“Administrative bodies equipped with such heft are a threat to public discourse; they are not classically liberal nor constitutional in origin, nor will they behave as such if implemented as policy. If the Trump White House goes forward with this executive order, conservatives will have helped erect an Anti-First and Fifth Amendment machinery to police online speech that they are highly unlikely to control as time goes on. Pres. Trump’s enlarged Federal Trade Commission and Federal Communications Commission of the future will be dominated, as regulatory agencies are, by administrative state progressivism and top-down rules and planning. One thing is certain; tomorrow's Speech Police are not going to think political neutrality or criteria for a certification of objectivity mean what Trump (or Hawley) thinks they mean.

“It is the case that some social media firms could violate their terms of service as far as excluding certain content, but the way to deal with that is public blowback , or at most on a case-by-case basis. Public officials who respect the Constitution should not propose an entire regime to govern the Internet. Such an order would mark the end of the Trump Deregulatory Agenda.”

CEI research fellow Patrick Hedger said:

“There are two clear constitutional problems with this hypothetical order. First, the category of protected speech is exceptionally and necessarily broad, not just limited to political speech. This means that to enforce against claims of political bias or ‘censorship’ the government would essentially be creating tiers within the category of protected speech. 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.

“Second, the President simply does not have the authority to direct the actions of independent regulatory agencies such as the FTC and FCC. Conservatives rightly opposed President Obama’s attempts to pressure the FCC to pursue ‘net neutrality’ and ought to be up in arms about this as well.”

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