(CNN) — President Donald Trump is set to announce an executive order against social media companies on Thursday, days after Twitter called two of his tweets “potentially misleading.”
The draft executive order being prepared by the Trump administration seeks to curtail the power of large social media platforms including Twitter and Facebook by attempting to reinterpret a critical 1996 law that shields websites and tech companies from lawsuits.
It marks a dramatic escalation by Trump in his war with tech companies as they struggle with the growing problem of misinformation on social media. The President has regularly accused sites of censoring conservative speech.
But the order could quickly find itself in a thicket of legal and constitutional questions as the White House tests the boundaries of its authority.
The draft order, which was reviewed by CNN, targets a law known as the Communications Decency Act. Section 230 of the legislation provides broad immunity to websites that curate and moderate their own platforms, and has been described by legal experts as “the 26 words that created the internet.”
It argues that the protections hinge mainly on tech platforms operating in “good faith,” and that social media companies have not.
“In a country that has long cherished the freedom of expression, we cannot allow a limited number of online platforms to hand-pick the speech that Americans may access and convey online,” the draft order says. “This practice is fundamentally un-American and anti-democratic. When large, powerful social media companies censor opinions with which they disagree, they exercise a dangerous power.”
On Tuesday, Twitter applied a fact-check to two of Trump’s tweets, including one that falsely claimed mail-in ballots would lead to widespread voter fraud. Trump immediately shot back, accusing the social media giant of censorship and warning that if it continued to offer addendums to his messages, he would use the power of the federal government to rein it in or even shut it down.
The draft order also accuses social media platforms of “invoking inconsistent, irrational, and groundless justifications to censor or otherwise punish Americans’ speech here at home.” It also faults Google for helping the Chinese government surveil its citizens; Twitter for spreading Chinese propaganda; and Facebook for profiting from Chinese advertising.
Facebook, Google and Twitter didn’t immediately respond to a request for comment.
A fight Trump wants to have
The move highlights what Trump believes is a fight worth having. In many ways, the latest episode with Twitter feeds Trump’s narrative that there are powerful forces in the media aligned against him, and that his is the only voice his supporters can trust.
“This plays right into President Trump’s hands,” said Jason Miller, the communications director for Trump’s 2016 campaign and someone who has been directly involved with Trump’s social media strategy. “They basically handed him a massive gift.”
Many of Trump’s political allies rushed to his defense on Wednesday.
“Twitter is engaging in 2020 election interference. They are putting their thumb on the scale,” said Florida Republican Rep. Matt Gaetz, a loyal Trump supporter and surrogate during an appearance on the Steve Bannon-produced podcast War Room Pandemic. “The notion that they would outsource fact checking to people who have been wrong about everything is an insult.”
Trump campaign manager Brad Parscale said that his team no longer pays for advertising on Twitter and accused the tech giant of purposefully influencing the election to hurt the President.
“We always knew that Silicon Valley would pull out all the stops to obstruct and interfere with President Trump getting his message through to voters,” Parscale said in a statement. “Partnering with the biased fake news media ‘fact checkers’ is only a smoke screen Twitter is using to try to lend their obvious political tactics some false credibility.”
The President made the decision to warn Twitter despite the fact that the company and most other prominent social media platforms have allowed him and his associates to peddle unsubstantiated conspiracy theories with few constraints. While Twitter added the fact check to Trump’s tweets on mail-in voting, it did not do so on any of his recent tweets baselessly suggesting MSNBC host Joe Scarborough was somehow involved in the death of a former aide, despite a plea from the aide’s widower to take the tweets down.
Trump’s Twitter habits have been the scrutinized for virtually his entire political career, but people familiar with his use of the platform describe less of a strategy and more of a mindset as he or an aide taps out messages.
Other people inside the administration, and even some of Trump’s closest advisers, are regularly caught off-guard by what appears on his feed — if not always surprised.
While his messages often have the effect of distracting from an unfortunate headline, people close to the President say it is their impression that he genuinely believes many of the more conspiratorial things he sends — including debunked theories about his predecessor — and that he isn’t raising them only in the hopes of diverting attention elsewhere.
Trump’s top social media adviser, Dan Scavino Jr., was recently elevated to become one of the highest-ranking officials in the West Wing. His title, deputy chief of staff for communications, belies the fundamental role he plays both in Trump’s use of Twitter and in his life generally. Trump trusts Scavino almost unreservedly. Scavino has worked for the President since before the 2016 campaign when he was a manager at one of Trump’s golf clubs.
Scavino is usually the person who locates the internet content — sometimes from fringe sources and often incendiary — that finds it way to Trump’s Twitter feed, though other friends and advisers have suggested tweets and retweets as well.
Scavino’s West Wing office provides him regular access to the President, as does his near-ubiquitous presence on Trump’s trips, where he is often seen videotaping or photographing the President. He is believed to be the only other person with access to @RealDonaldTrump, though the mechanics of the account have never been confirmed by the White House.
Trump’s tweet rants have always been controversial. But recently, as the US death toll from the pandemic has approached 100,000, they have become uncomfortable even for some of the President’s most prominent supporters.
“I do think the President should stop tweeting about Joe Scarborough in the middle of a pandemic,” said Rep. Liz Cheney, a Wyoming Republican. “He’s the commander in chief of this nation and he is causing great pain to the family of the young woman who died.”
But those who understand the President’s social media habits believe it is unlikely that he will change his behavior any time soon. Miller, who has been present as Trump crafts his tweets, said the President views the platform as an outlet where he can speak directly to his supporters.
“It is one of President Trump’s super powers,” Miller said. “He understood very early on that social media, Twitter in particular, gave him unvarnished access to the American people and his supporters. What Trump maximized was social media’s ability to bypass the artificial conversation created by the mainstream media.”
How the order would work
Under the order, the Commerce Department would ask the Federal Communications Commission for new regulations clarifying when a company’s conduct might violate the good faith provisions of Section 230 — potentially making it easier for tech companies to be sued.
That is consistent with a draft order whose text CNN first reported last summer — and which prompted FCC officials to push back on the plan privately.
The draft order instructs the Justice Department to consult with state attorneys general on allegations of anti-conservative bias. It bans federal agencies from advertising on platforms that have allegedly violated Section 230’s good-faith principles.
Finally, the draft order would direct the Federal Trade Commission to report on complaints about political bias collected by the White House and to consider bringing lawsuits against companies accused of violating the administration’s interpretation of Section 230.
The provisions regarding the FTC could raise additional legal questions, as the FTC is an independent agency that does not take orders from the President.
This story and headline have been updated with additional information about the executive order.