Among a flurry of activity on his first day back in the Oval Office, President Donald Trump signed the Restoring Freedom of Speech and Ending Federal Censorship Executive Order.
The executive order aims to “secure the right of the American people to engage in constitutionally protected speech” and “ensure that no Federal Government officer, employee, or agent engages in or facilitates any conduct that would unconstitutionally abridge the free speech of any American citizen.”
The executive order comes after years of complaints from Republican voters and politicians that conservative-leaning content online is discriminated against. The allegations of bias on the platforms drove much of the backlash against U.S. tech firms, which has reverberated through regulatory enforcement, political talking points, and the legislative agendas of both Congress and state houses across the country.
But the so-called Twitter Files, the publishing of communications between government officials and content moderators on the social media platform, revealed that pressure from agencies such as the Department of Homeland Security and the Centers for Disease Control and Prevention might have been more responsible for the controversial curating decisions than the political biases of “Big Tech.”
Concerns about “jawboning,” or the government pressuring private actors to suppress speech in ways the government has barred itself from doing, rose to the Supreme Court. Last term, in Murthy v. Missouri, the high court sidestepped the First Amendment protection questions in banning such communications by ruling that the parties challenging the government’s actions lacked legal standing to do so. This allowed government communications with social media companies to continue for the remainder of former President Joe Biden’s administration.
Trump’s Day One executive order banning the practice sought to stop the possible “jawboning,” but not everyone was pleased with the change.
John Wihbey of Northeastern University told CNN that he worried the “pipeline between tech companies and the Department of Justice/FBI and intel communities will be impeded by this order,” as it relates to protecting national security, fighting financial fraud, and child sexual abuse material.
It should be noted that because those and other illegal activities already fall outside the bounds of what is constitutionally protected, communications about such matters may not be affected by the executive order.
The Foundation for Individual Rights and Expression, a free-speech nonprofit advocacy group, welcomed the executive order. “Government coercion of social media companies to suppress particular viewpoints and ideas threatens the First Amendment,” a spokesperson said in a statement. The group has penned model legislation that would require disclosure of communications between government officials and social media companies.
But finding consensus beyond Congress acting for transparency could prove challenging. Recent polling found that 79% of Republicans and 52% of Democrats distrusted the government to be fair in deciding what information should be allowed on social media. Social media companies fared even worse, with only 8% of Republicans and 12% of Democrats trusting companies’ judgment on content moderation.
Meta, which owns Facebook and Instagram, may be taking advantage of less government pressure.
In January, the global social media giant announced an end to its fact-checking contracts with outside groups and a move toward a community notes model for U.S. users, much like the one used on Elon Musk’s X. Meta spokespeople also said they’d be acting to remove less content by opening their platforms up to more political content and increasing discussion of gender and immigration issues. The company plans to “reduce over enforcement and cut down on mistakes by focusing (their) enforcement on illegal and high-sensitivity violations like terrorism, drugs and frauds and scams.” In a video accompanying the announcement, Meta CEO Mark Zuckerberg said, “It’s time to get back to our roots around free expression on Facebook and Instagram.”
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That has not come as welcome news for much of the fact-checking world. Despite no mention of imminent changes to fact-checking in the 100 countries and territories outside of the United States, in more than 60 languages, where Meta currently operates, those employed in the roles warned of dire consequences from increased “misinformation” being allowed on the platforms. Many foreign governments are also at odds with Meta’s new American approach, which could violate already implemented regulations if it were to be applied in the European Union.
The protections and influence of the First Amendment may prove to be the greatest example of “American exceptionalism” online.
