More Lawsuits and Less Speech: An Executive Order’s Unintended Consequences

Katie Bond is a Partner with Amin Talati Wasserman, LLP in the firm’s Washington, DC office.

The new White House Executive Order (EO) on social media opens with the lines, “Free speech is the bedrock of American democracy. Our Founding Fathers protected this sacred right with the First Amendment to the Constitution.” From there, that’s basically the only part that appears factually or legally accurate on the subject matter it addresses. The EO, in short, misinterprets and seeks to weaponize Section 230 of the Communications Decency Act against hosts of online platforms.

Let’s first examine what Section 230 is. Federal lawmakers originally intended the Communications Decency Act to help protect children from explicit online content. However, before passage, the original bill was amended to add Section 230, a provision entirely unrelated to protecting children. Congress instead intended Section 230 to promote the exchange of information on internet platforms by protecting online hosts from liability for content posted by others.

Specifically, with only limited exceptions related to criminal law and intellectual property, Section 230 provides that: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” So, in short, if third-party content is from “another” and truly independent of the host, then the host cannot be held liable for it.

Given Section 230’s broad language, courts have recognized immunity that is commensurately broad. For instance, the U.S. Court of Appeals for the Fourth Circuit easily found that ConsumerAffairs.com could not be held liable for consumer reviews that a business alleged amounted to deceptive advertising. There is little question as well that Facebook isn’t responsible for another company’s post that might contain false advertising or information in violation of Food and Drug Law standards. YouTube isn’t liable for someone’s video that might be slanderous, and Craigslist isn’t responsible for any post on its vast site that might violate fair housing laws. In effect, companies can provide a platform for third-party discussions without also having to review every third-party post for compliance with virtually every U.S. law. The third party can be held liable, but not the host.

To be sure, Section 230 immunity isn’t boundless. A court, for example, held a roommate-search site was liable where it required a profile and the form to create a profile mandated the entry of information that violated fair housing laws. According to the court, the consumer content plugged into the form wasn’t truly independent content “by another.” Similarly, the Federal Trade Commission and Food and Drug Administration take the position that where a company “likes” or otherwise interacts positively with third party posts, the content is no longer independent of the company, and the company can be held liable for the third-party content.

Importantly, though, by the terms of the law itself, the only way a host can lose Section 230 immunity is if it engages with third-party content in such a way that the content is no longer “information provided by another.” Section 230 otherwise in no way mandates how or when an online host can curate or interact with third-party content.

The law explicitly recognizes that hosts acting “in good faith”  can “restrict access to or availability of material” that the host “considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.” However, this explicit protection for removal of unsavory content in no way limits immunity based on any engagement with content short of engagement that would render the content no longer independent of the host and thus not “by another.”

Now, let’s look at what the EO seeks to do with Section 230. The EO takes the novel and legally incorrect position that if a host curates third party content in any way beyond removal of unsavory or obscene content, then Section 230 immunity is lost. Specifically, the EO states:

“When an interactive computer service provider removes or restricts access to content and its actions do not meet the criteria of subparagraph (c)(2)(A), it is engaged in editorial conduct.  It is the policy of the United States that such a provider should properly lose the limited liability shield of subparagraph (c)(2)(A) and be exposed to liability like any traditional editor and publisher that is not an online provider.”

Based on this incorrect interpretation, the EO then proceeds to call on “all executive departments and agencies [to] ensure that their application of section 230(c) properly reflects the narrow purpose of the section and take all appropriate actions in this regard.” The EO then announces a forthcoming petition to urge the Federal Communications Commission (FCC) to establish this incorrect interpretation of Section 230 under its rulemaking authority. The EO also, among other calls to action to state and federal regulators, asks the Federal Trade Commission “to consider taking action, as appropriate and consistent with applicable law, to prohibit unfair or deceptive acts or practices in or affecting commerce.”

So, what does this mean, practically speaking? Practically speaking, the existence of this EO itself is a dangerous call to the plaintiffs’ bar to begin sending demand letters and filing lawsuits that attempt to hold online hosts responsible for any third party with which the host interacts in any way other than to remove it as unsavory. If the FCC were to take up rulemaking, that threat would be even greater (even though such rulemaking would clearly be ultra vires and open to later attack). Section 230’s well-reasoned protections will be eviscerated, and companies would have to consider whether providing social media platforms, providing a space for consumer reviews, or providing product or company pages on social media is worth the potential liability.

Here’s an example. The FDA currently allows and even encourages drug companies to correct inaccurate or otherwise non-compliant information posted by others about their pharmaceutical products. The FDA in fact provides an entire guidance document devoted to how to make corrections. No one has ever suggested that making such corrections might upend a company’s Section 230 immunity. However, under the White House’s novel interpretation of Section 230, a pharmaceutical company could very well be held liable for incorrect, non-compliant information posted by a consumer if the company simply seeks to correct the record. This can’t be right and stands to harm the public. Far from protecting free speech, the EO is grave threat to it.