Section 230 and the Twitter Presidency

Abstract

In response to Twitter’s decision to label one of the President’s tweets misleading, the Trump White House issued an executive order to limit Section 230 of the Communications Decency Act via agency rulemaking. In the Order, Trump calls for the Federal Communications Commission (FCC) to “interpret” Section 230 in a manner that curtails websites’ ability to remove and restrict user speech. This article analyzes the Order and concludes that this effort will fail. First, the FCC does not have rulemaking authority to issue the proposed rules. Second, the proposed rules cannot be issued because they are inconsistent with the statute. Finally, we discuss the policy implications of the proposed rules and argue that they would actually lead to less speech and engagement on the Internet, not more of it.

Keywords: Section 230, Communications Decency Act, 47 USC 230, intermediary liability, Internet, free speech, administrative law, executive order, Trump, Facebook, Twitter