Executive Order Compelling Private, Online Platforms to Host Speech is Unconstitutional

1st amendment

President Trump today announced his intention to sign an Executive Order aimed at compelling companies that own private online platforms to host speech against their will.

CEI Vice President for Policy Wayne Crews said:

“President Trump’s new executive order on social media speech, if implemented, 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 online discourse and the blocking of viewpoints, the proposed Executive Order would worsen the problem by delivering the Internet into the hands of the administrative state. It would also violate the First Amendment. 

“Administrative bodies equipped with such power are a threat to public discourse; they are not classically liberal nor constitutional in origin, nor will they behave as such if given additional power by President Trump. If the Trump White House goes forward with this executive order, some 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. President Trump’s enlarged and empowered independent agencies 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 overseers are not going to think political neutrality or criteria for a certification of objectivity mean what President Trump (or similarly minded legislators) thinks they mean.

“Public officials who respect the Constitution should not propose an entire regime to govern the Internet. Such an order will do considerable damage to the Trump deregulatory agenda.”

Associate Director of CEI’s Center for Technology and Innovation Jessica Melugin said:

“Government regulating content on private, online platforms is an affront to those companies’ property rights. These platforms are not, in fact, the public square. They are the private property of these companies. Conservatives have no more of a ‘right’ to be hosted on them than I do to host a political rally in my neighbor’s house without permission. Free speech is not a right to be imposed upon on the private property of another; one right must necessarily stop at the start of another.”

CEI Research Fellow Patrick Hedger said:

“After signing an Executive Order celebrated by advocates for regulatory reform, this potential Order takes a massive step backwards. Bossing around independent regulatory agencies like the FCC is something conservatives rightly criticized President Obama for doing. The FCC itself is working diligently to reduce regulatory barriers in the Internet economy, now is not the time to take their eye off the ball.

“In addition, the Order is unlikely to survive any court challenge. Even so, conservatives must appreciate the fact that social media has empowered countless new voices on the right and allowed them to garner millions of followers and billions of views. The net effect of social media has been overwhelmingly positive. Empowering trial lawyers to sue social media firms into oblivion will not pay the electoral dividends some conservatives are counting on.”