Preventing Online Censorship
Executive Order 13925, titled Preventing Online Censorship, is a policy directive issued by President Donald J. Trump on May 28, 2020. It frames large online platforms (social media sites and general search engines) as modern public squares and urges that their current immunity under Section 230 of the Communications Decency Act be narrowed when platforms engage in in bad faith or “editorial” actions that restrict speech. The order directs federal agencies to pursue a series of actions—rulemaking, investigations, and potential legislation—to promote what it calls an open and diverse online discourse and to curb what it views as viewpoint discrimination by major platforms. It signals a multi-pronged push: clarify and limit platform immunity, assess federal advertising spending that funds platforms, and encourage state-level and federal responses to perceived online censorship. The order is not a new statute; rather, it directs agencies to take concrete steps toward clarifying Section 230 protections and toward potential enforcement or legislative actions. Key elements include a call for rulemaking to define when platform actions are not taken in good faith, a federal review of advertising dollars spent on platforms, and a plan to pursue or propose federal legislation. It also creates processes for state-level consideration of unfair or deceptive practices and sets up reporting and enforcement mechanisms through the FTC and DOJ. The order defines “online platform” and states that implementation should comply with applicable law and appropriations, and it explicitly notes that it does not create new rights.
Key Points
- 1Narrowing Section 230 Immunity and rulemaking delegation: The order argues that Section 230(c) immunity should not shield platforms that restrict content in bad faith or in a manner deceptive or inconsistent with their stated terms of service. It tasks the NTIA (through the Secretary of Commerce) and the FCC with expeditiously proposing regulations to clarify how subparagraphs (c)(1) and (c)(2) interact, and what constitutes actions not taken in good faith (including deceptive or pretextual actions and lack of notice or explanation). The goal is to limit the blanket immunity for platforms that censor viewpoints.
- 2Federal advertising review and scrutiny of platform practices: Sec. 3 directs agency heads to review federal spending on advertising and marketing with online platforms, identifying which platforms receive dollars and what legal authorities could restrict such advertising. DOJ is asked to review platforms’ policies for viewpoint-based restrictions and potential bad practices, while reporting to OMB is mandated.
- 3Federal enforcement through the FTC: Sec. 4 envisions the FTC considering action under unfair or deceptive acts or practices (UDAAP) law against platform conduct that restricts protected speech in ways inconsistent with public representations. It also directs the FTC to consider a public report on complaints related to the major platforms’ policies.
- 4State-level work and model legislation: Sec. 5 creates a working group led by the Attorney General to explore enforcement of state unfair/deceptive acts and practices laws and to develop model legislation for states. Complaints gathered under section 4(b) are to be shared with this group, along with publicly available information on algorithms, political alignment implications, third-party biases, and earnings restrictions tied to viewpoints.
- 5Legislative proposal development: Sec. 6 requires the Attorney General to develop a proposal for federal legislation that would promote the order’s objectives, signaling that Congress could be asked to codify these principles.
- 6Definition and scope: Sec. 7 defines “online platform” to include any website or app that allows user-created content or social networking, or any general search engine, outlining the broad scope of platforms addressed.
- 7General provisions and non-creation of rights: Sec. 8 clarifies that nothing in the order impairs existing agency authority or budget processes, and that the order does not create legal rights enforceable in court.