I neglected to emphasize a point in my previous post, so I’m going add it here.
Suppose you have a neighbor who hates you, and that neighbor posts a slanderous story about you on Facebook. Obviously, if you can prove that it really was your hateful neighbor who posted it, you can sue your neighbor. But can you also sue Facebook? According to that 1996 law, no you can’t, because Facebook was not the source of the slander and was not in any way endorsing it by allowing it to be posted. Part of what’s involved is that even if the administrators at Facebook intended to take it down once they found out about it, the story might well have already been up long enough to do serious damage, and if Facebook can be held liable for that damage, then Facebook will have to screen every post–even those posts where you’re telling the world what you had for breakfast or how cute your new kitten is–before letting it go up, and that would make Facebook as we know it unsustainable.
Okay, so Facebook isn’t legally responsible for the content of people’s posts. But does that mean that Facebook has to sit back and let everything that anybody wants to post stand? So far, it hasn’t meant that. Facebook has taken down lots of posts for violating community standards. It has, in fact, kicked people out completely on that basis with no explanation. Fair or unfair, the idea is that Facebook is a private business enterprise that has the right to decide what it does and does not want on its pages, even if it isn’t legally responsible.
What Trump is trying to do with his new executive order is make this into an all-or-nothing proposition. By lifting legal immunity from social networks that “censor” (his word, and a very questionable use of the word) the content, he would have it that either a social network keeps its hands off the content completely and lets people post anything they want, or that social network exercises complete control over the content and assumes legal responsibility for it.
Trump issued this executive order, of course, in response to his favorite social network, Twitter, posting fact-check links to a tweet of his claiming that voting by mail causes massive voter fraud. Trump considers this a violation of his freedom of speech. (Reminder: Because Twitter is not the government, the whole notion of “freedom of speech” is not applicable, though to be sure people have always used the term conversationally in contexts where it does not apply.) More recently Twitter flagged a tweet of Trump’s (“when the looting starts, the shooting starts,” referring to events in Minneapolis) as violating its rules against advocating violence.
As private business enterprises, Twitter and Facebook have to keep sponsors and customers happy. They’ll never please everybody, of course, but there is pressure on them to find just the right balance between allowing free airing of opinions but putting some limits on patently false information, on prejudicial insults, on defamation, on advocacy of violence, etc. Making it into an all-or-nothing proposition–either total control or no control whatsoever–would put a heavy burden on these companies and possibly make their operations, as we know them now, unsustainable. There may well be a need for that 1996 law to be rethought, but all-or-nothing hardly seems like a sensible way to go.
Trump’s executive order fits in with his earlier attempts at punishing news outlets for coverage of him that he considers “fake news.” And as with everything else involving Trump, Americans see it with two narratives: to some Americans, this is Trump trying to be a dictator; to others, it is Trump having the courage to stand up to the America-hating elites that want to stop him from making America great again.