UPDATE: Section 230 and the Executive Order on Preventing Online Censorship
Legal Sidebari
UPDATE: Section 230 and the Executive Order
on Preventing Online Censorship
Updated October 16, 2020
Update: On October 15, 2020, Federal Communications Commission (FCC) Chairman Ajit Pai
announced that the FCC will adopt rules interpreting Section 230 of the Communications Decency Act.
FCC General Counsel Tom Johnson confirmed that his office has advised Chairman Pai that “the FCC
has the legal authority to interpret Section 230.” Chairman Pai’s statement comes after the National
Telecommunications and Information Administration petitioned the FCC for rulemaking. On August 3,
2020, the FCC invited public comment on the petition for 45 days and received more than 20,000
comments in response.
The original post from June 3, 2020, is below.
On May 28, 2020, President Trump issued the Executive Order on Preventing Online Censorship (EO),
expressing the executive branch’s views on Section 230 of the federal Communications Decency Act. As
discussed in this Legal Sidebar, Section 230, under certain circumstances, immunizes online content
providers from liability for merely hosting others’ content. The EO stakes out a position in existing
interpretive disputes about the law’s meaning and instructs federal agencies, including the Department of
Commerce, the Federal Communications Commission (FCC), the Federal Trade Commission (FTC), and
the Department of Justice, to take certain actions to implement this understanding.
This Legal Sidebar explores the legal implications of the EO. It first briefly describes how courts have
interpreted Section 230 before explaining what the EO says. Next, the Sidebar discusses the FCC and
FTC’s authority to enforce Section 230, focusing on the EO’s instructions to these agencies, before
concluding with a discussion of how international trade obligations affect the United States’ ability to
modify Section 230.
Section 230 and Litigation over Online Speech
Section 230 creates federal immunity for providers and users of “interactive computer services,” generaly
preventing them from being held liable for hosting content that someone else created. For example, if
someone writes and posts a defamatory statement on Twitter, the defamed person could sue the tweet’s
author. Section 230, however, would likely require a court to dismiss any lawsuits against Twitter or a
second Twitter user who merely retweets the original statement without comment—so long as neither
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Twitter nor the second Twitter user helped to develop the initial tweet. Section 230 was enacted in 1996 in
response to a trial court ruling that al owed an online platform to be subject to liability for hosting
defamatory speech, in part because the platform had said it would police its site for unwanted speech.
Congress was concerned that this ruling created a perverse incentive for sites to refrain from monitoring
content to avoid liability. Section 230 can be seen as speech-protective: by barring lawsuits that would
punish platforms for hosting speech, it may encourage platforms to err on the side of hosting more
content, while stil al owing sites to take down content they see as objectionable. To this end, Section 230
contains two different provisions that courts have general y viewed as two distinct liability shields.
First, Section 230(c)(1) states that interactive computer service providers and users may not “be treated as
the publisher or speaker of any information provided by another” person. This provision has been broadly
interpreted to bar a wide variety of suits that would treat service providers as the publisher of another’s
content, including claims of defamation, negligence, discrimination under the Civil Rights Act of 1964,
and state criminal prosecutions. However, if a site helps develop the unlawful content, courts have ruled
that Section 230(c)(1) immunity does not apply. Accordingly, courts have, for example, rejected applying
Section 230 to cases brought by the FTC against a defendant website that solicited or was involved in
publishing al egedly unlawful content. More general y, Section 230 wil not bar suits that seek to hold
sites liable for their own conduct, rather than another’s content. But courts have said that acts inherent to
publishing, such as reviewing, suggesting, and sometimes even editing content, may not, by themselves,
qualify as helping develop the chal enged content. As a consequence, Section 230(c)(1) immunity can
apply regardless of whether the site chooses to actively police content or whether it chooses to take a
more hands-off approach.
Second, Section 230(c)(2) provides that interactive computer service providers and users may not be
“held liable” for any voluntary, “good faith” action “to restrict access to or availability of material that the
provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or
otherwise objectionable.” Section 230(c)(2) also immunizes providing “the technical means to restrict
access” to objectionable material. Unlike Section 230(c)(1), Section 230(c)(2) applies only to good faith
actions to restrict objectionable material. Courts have ruled that al egations of anticompetitive motives
can demonstrate bad faith, disqualifying sites from claiming Section 230(c)(2) immunity. There are,
however, relatively few published federal court cases interpreting this provision.
Because Section 230(c)(2) contains a good-faith requirement and Section 230(c)(1) does not, some courts
have recognized the importance of determining when each immunity provision applies. At least one
decision suggests that Section 230(c)(2) applies when a service provider “does filter out offensive
material,” while Section 230(c)(1) applies when providers “refrain from filtering or censoring the
information on their sites.” But, as one scholar has noted, other courts have cited Section 230(c)(1) when
dismissing claims predicated on takedowns. Another possibility is that Section 230(c)(1) does not apply
when the plaintiff’s own content is at issue—that is, while Section 230(c)(1) immunity only applies if a
third party created the disputed content, Section 230(c)(2) can apply when a person sues a site for taking
down the plaintiff’s own content. Again, however, other decisions suggest that courts may apply Section
230(c)(1) even when the suit involves the plaintiff’s own content. A third view is that Section 230(c)(2)
might apply if the provider helps develop content and is therefore ineligible for (c)(1) immunity. In short,
court rulings are inconsistent on the question of when each of the two immunity provisions governs.
Section 230(e) expressly states that the law wil not bar liability in certain cases. Defendants may not
claim Section 230 immunity in federal criminal prosecutions, cases involving intel ectual property laws,
suits under the Electronic Communications Privacy Act or “similar” state laws, and certain civil actions
and state criminal prosecutions relating to sex trafficking.
If Section 230’s liability shield does not apply, the person being sued wil not automatical y be held liable.
Instead, it means only that courts can continue to adjudicate the case. But because Section 230 lawsuits
often attempt to impose liability based on a person’s speech, it remains possible that the First
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Amendment’s Free Speech Clause could require courts to dismiss claims in Section 230’s absence. Courts
may be hesitant to hold defendants liable for many types of online speech, unless it is clear that the speech
fal s into a category of traditional y regulable speech. And in cases concerning online platforms’ liability
resulting from decisions about what types of speech to host, some courts have held that the First
Amendment requires dismissal of lawsuits that would punish sites for exercising editorial discretion
protected by the Free Speech Clause.
Executive Order on Preventing Online Censorship
The EO begins by stating in Section 1 the President’s belief that online platforms are engaging in
“selective censorship,” harming national discourse and restricting Americans’ speech. Section 2 turns to
the interpretation of Section 230(c), arguing that the “scope” of this immunity provision “should be
clarified” and the law should not be extended to platforms that “engage in deceptive or pretextual actions”
to censor “certain viewpoints.” The EO maintains that Congress intended Section 230(c) to only protect
service providers that engage in “Good Samaritan” blocking of harmful content. Section 2 further states
that providers should not be entitled to Section 230(c)(2) immunity if they remove content without acting
in “good faith,” including by taking “deceptive or pretextual actions (often contrary to their stated terms
of service)” to suppress certain viewpoints.
Section 2 also directs the Commerce Secretary, “in consultation with the Attorney General, and acting
through the National Telecommunications and Information Administration (NTIA),” to request the FCC
to issue regulations interpreting Section 230. Among other things, the EO, perhaps in response to the
Section 230 jurisprudence discussed above, specifies that FCC’s proposed regulations should clarify:
(1) “the interaction between” Section 230(c)(1) and (c)(2) to explain when a service provider that cannot
obtain Section 230(c)(2) immunity is also ineligible for protection under (c)(1); and (2) the meaning of
“good faith” in Section 230(c)(2), including whether violating terms of service or failing to provide
procedural protections qualifies as bad faith.
Section 4 of the EO instructs the FTC to “consider taking action, as appropriate and consistent with
applicable law, to prohibit unfair or deceptive acts or practices.” Specifical y, the EO suggests that if
platforms “restrict speech in ways that do not align with those entities’ public representations about” how
they monitor content on their sites, these acts may qualify as unfair or deceptive practices under the FTC
Act. The EO also directs the FTC to consider whether complaints of “online censorship” received by the
White House “al ege violations of law,” and whether to develop a report on these complaints.
The other provisions of the EO assign additional tasks to more executive departments. Section 3 of the
EO requires agency review of federal spending on advertising and marketing on online platforms, and
Sections 5 and 6 contain instructions for the Attorney General to establish a working group and propose
federal legislation to implement the policies announced in the EO.
FCC Rules
While much of the EO is precatory in nature, perhaps the most notable terms are found in the provisions
that seek to clarify Section 230’s meaning by having the Secretary of Commerce, through the NTIA,
petition the FCC to issue new rules on the topic. The responses to the EO from the FCC, an independent
agency tasked with overseeing federal communications policy and headed by five commissioners of both
parties, have ranged from supportive to critical. However, the responses leave unresolved one critical
issue: the FCC’s authority to issue rules interpreting Section 230.
The Administrative Procedure Act and FCC regulations implementing it permit any interested person to
petition the FCC for rulemaking. Section 555(b) of the Administrative Procedure Act requires agencies to
act on petitions within a “reasonable time,” while FCC regulations provide only that the FCC “may act on
a petition for rule making at any time” after the deadline for other interested persons to respond. Various
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provisions of the Communications Act of 1934—including Sections 4(i), 201(b), and 303(r)—permit the
FCC to issue rules necessary for the FCC to perform its functions or implement the Communications Act.
An argument can be made that the FCC may rely on these provisions to issue rules in response to the EO
because Congress enacted Section 230 as an amendment to Title II of the Communications Act.
Assuming the FCC issues rules interpreting Section 230 in line with the views of the EO, the question
remains as to the legal import of those new rules. Section 230 immunity is largely addressed by private
parties in litigation and typical y does not involve the FCC. Supreme Court precedent counsels courts,
under certain circumstances, to defer to the FCC’s views on the statutes that it administers. These
deference doctrines, if found applicable by a court, would require deference to the agency’s interpretation
of Section 230 and its determination that it has the authority to regulate on Section 230’s meaning. One
feature distinguishing Section 230 from other statutes the FCC interprets is that Section 230 does not
mention the FCC at al . It is unclear if the operative provisions of Section 230 are “administered” by the
FCC: the FCC does not take regulatory action related to Section 230, and the statute does not include any
direction for the agency to regulate. However, Section 230’s inclusion in a statutory scheme administered
by the FCC may provide support for deferring to the agency’s views.
If a reviewing court determines that the FCC is authorized to issue rules interpreting Section 230, it wil
defer to the FCC’s reasonable interpretation of the statute so long as the statute is silent or ambiguous
with respect to the FCC’s views. If, however, the court determines that Section 230 is unambiguous, or
that the FCC’s interpretation of the statute is unreasonable, it wil decline to adopt the agency’s
interpretation. Additional y, under Supreme Court precedent, a court may accord the FCC’s rule “respect
proportional to its power to persuade” if the court believes that Section 230 does not confer on the FCC
authority to make regulations with the force of law.
FTC Enforcement
Another potential y important provision in the EO is Section 4 and its contemplation of an enforcement
role for the FTC—an agency with the dual mission of protecting consumers and promoting competition in
the marketplace—with respect to online platforms. The EO only directs the FTC to “consider” taking
action, possibly because the Supreme Court has described the FTC as independent from executive
authority, other than in the President’s selection of commissioners. However, the Commission could
potential y, on its own accord, bring an enforcement action against entities covered by Section 230.
However, if the FTC took such an action it would need to clear two hurdles: it would need to show that
the company’s content moderation practices (1) are deceptive or unfair and (2) fal outside of Section
230’s liability shield.
With respect to the first issue, the FTC has jurisdiction to enforce the FTC Act’s broad prohibition on
“unfair or deceptive acts or practices” against most individuals and entities. Under the “deceptive” part of
this authority, the FTC has often brought enforcement actions against companies who make
misrepresentations to consumers, such as when a company contradicts its posted policies. Consequently, it
is possible that the FTC could bring an enforcement action against a company for misrepresenting its
content moderation practices to consumers, provided the FTC determines the misrepresentation is
“material” and likely to mislead a reasonable consumer. Along with “deceptive” conduct, the FTC could
bring an enforcement action if it believes a company’s content moderation practices are “unfair.” To
establish unfairness, the FTC would have to show, among other things, that the conduct “causes or is
likely to cause substantial injury to consumers.” It may be difficult for the FTC to establish that a
company’s content moderation practices causes substantial injury, however, because the agency has said
that injury under the unfairness prong is largely limited to “monetary harm” or “health and safety risks.”
If a company’s content moderation practices are “unfair or deceptive” under the FTC Act, the FTC would
stil need to show that the company is not entitled to the Section 230’s liability shield. In particular, the
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Commission would need to show that the conduct fal s under Section 230(c)(2)—because conduct fal ing
under Section 230(c)(1) receives unqualified immunity, so long as the site did not contribute to any
disputed content—and that the company did not act in “good faith.” As discussed earlier, there is
uncertainty surrounding both of these issues. As a result, the FTC’s ability to use its authority to stop
companies’ deceptive content moderation practices may circularly hinge on the issues that the EO seeks
clarification on from the FCC in Section 2.
International Trade Considerations
The EO could also affect the United States’ international obligations. The United States has sought to
limit the liability of internet computer service providers and information content providers in its recent
trade agreements. Currently, the United States-Mexico-Canada Agreement (USMCA) and United States-
Japan Agreement on Digital Trade (U.S.-Japan Agreement) contain such provisions. The United States
has also indicated an interest in incorporating similar protections into future trade agreements with the
United Kingdom and Kenya. In provisions that largely track the text of Section 230, USMCA and the
U.S.-Japan Agreement prohibit the parties to the trade agreements from creating laws that treat interactive
computer service providers as information content providers except “to the extent the supplier or user has,
in whole or in part, created, or developed the information.” Additional y, the parties may not impose
liability for “any action voluntarily taken in good faith ... to restrict access to or availability of material . .
. that the supplier ... considers to be harmful or objectionable.”
These general prohibitions are subject to certain exceptions drawn from the World Trade Organization’s
General Agreement on Trade in Services. Both U.S. trade agreements al ow the parties to adopt measures
to protect public morals. USMCA further permits the parties to adopt measures to maintain public order;
protect human, animal or plant life or health; or to secure compliance with other domestic laws or
regulations. However, any such measure cannot create “arbitrary or unjustifiable discrimination between
countries where like conditions prevail” and cannot be “a disguised restriction on trade in services.”
Depending on how Section 230 is interpreted as a result of the EO, any resulting actions could be in
tension with the Unites States’ international trade obligations under USMCA, which is scheduled to enter
into force (i.e., become legal y binding) on July 1, 2020, and the U.S.-Japan Agreement, which is already
legal y binding on the United States. If a party to these agreements believes the United States has acted
contrary to its obligations, it may potential y impose countermeasures against the United States (e.g., raise
tariffs or suspend other trade benefits) consistent with the relevant dispute settlement arrangement or with
general rules of international law. The executive branch may argue that its clarifications of Section 230
are consistent with the text of the current domestic statute and with the provisions in international trade
agreements, so that any executive branch actions implementing the EO’s interpretations of the law would
not breach the United States’ international trade obligations. Such an interpretation would not, however,
bar a U.S. trade partner from disagreeing and initiating a dispute or otherwise attempting to impose
countermeasures.
Considerations for Congress
The EO does not, on its own, alter Section 230 or its interpretation by the courts. Because the EO itself
does not change the law, potential litigants who want to contest the validity of the EO’s legal
interpretations or its directions to executive agencies may have to wait until agencies act to implement the
EO. However, one group has already filed a lawsuit arguing that the EO violates the First Amendment.
This chal enge, and any others, may face some procedural hurdles. In particular, any plaintiffs wil have to
prove that they have standing, and it is unclear whether anyone has suffered a “concrete and
particularized” injury attributable to the EO, or whether the controversy is ripe for adjudication.
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In the meantime, if Congress disagrees with how Section 230 has been interpreted by the executive
branch or courts—or if it simply wants to resolve open interpretive questions—Congress can amend
Section 230 to expressly state when its immunity provisions apply and outline the executive branch’s
authority to interpret or enforce the law. For example, one bil introduced in the 116th Congress would
expressly grant the FTC authority to review sites’ content moderation practices. Congressional action
amending Section 230 could also limit the executive branch’s ability to implement the EO, if executive
action would be inconsistent with the new statutory authority. However, in amending Section 230,
Congress may consider limits on its ability to act, including the free speech protections of the First
Amendment as wel as the United States’ international trade obligations. The First Amendment restricts
the government’s ability to regulate online speech, and courts would likely apply heightened scrutiny to
any regulation that makes distinctions based on the content or viewpoint of the regulated speech. With
respect to trade obligations, Congress may also consider whether to approve any future trade agreement
that incorporates provisions limiting the liability of interactive computer service providers.
Author Information
Valerie C. Brannon
Eric N. Holmes
Legislative Attorney
Legislative Attorney
Nina M. Hart
Chris D. Linebaugh
Legislative Attorney
Legislative Attorney
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