Biden Revokes Trump’s Section 230 Executive Order -- But Is It A Distraction?

It’s no secret that Joe Biden sold his presidential candidacy as a repudiation of Donald Trump. On May 14th, the White House made a proactive effort to continue this agenda by revoking several executive orders from the last administration, one of which included a significant attack against one of the most important legal protections for freedom of speech, information, and commerce on digital platforms — Section 230 of the 1996 Communications Decency Act. Given that Biden apparently remains in vocal opposition to Section 230, the that limits sites from being held responsible for the individual actions of their users, experts are wondering if this is merely a distraction ahead of further action to undermine a free and fair internet.

It was almost exactly a year ago when the Trump order, titled “preventing online censorship,” demanded the FCC to “reinterpret” 230 by punishing any companies the administration deemed was “biased” against conservatives. The order also demanded the FTC investigate anti-conservative bias. Although the notion of anti-conservative bias is a recycled myth that has been long been debunked by journalists and academics alike, the order was originally planning to allow federal authorities to hold companies like Twitter, Google, and Facebook responsible if they moderated conservatives posts.

Neither the FCC nor FTC reviews actually happened. Most members of the government simply ignored the President’s written ramblings as nothing more than a performative joke to placate his volatile base. This is best seen in that what the former president actually classified as “political bias” ranged from these companies using simple fact-checking tools to guide users to reputable outlets to removing posts that violated terms of service, which users agree to uphold. The president framed his agenda as an anti-censorship push from the goodness of his heart, but the order mainly seemed to be motivated by Twitter labeling his tweets “misleading.” In the end, it was purely a desperate act of petty self-interest masquerading as anything but, neglecting the fact the institutions he attempted to abuse were legally bound from touching the law.

As written by TechDirt journalist Mike Masnick, “230 was written with the explicit admonition that the point was to keep the FCC out of the business of regulating the internet,” keeping the government’s nose away from politicians who wanted to fight faux-political bias with actual political bias. “At any point in the process, those involved in the federal government could have stood up to Trump and said that everything about the executive order was a joke and ridiculous. But, nope, that’s not how things work apparently. NTIA, which was in the process of being handed over to a lawyer whose mission in life seems to be to lie about and destroy Section 230, partly to favor his white nationalist clients, followed through on Trump’s demands, and petitioned the FCC to reinterpret Section 230.”

Some tried to enact the president’s will. Masnick’s report details the actions of Ajit Pai, the former chair of the FCC, who attempted to ignore all of the legal precedents of the FCC avoiding 230 workarounds, originally agreeing to a rule-making process to redefine the law. “Of course,” Masnick continues, “what might have suddenly drained Pai of any basic decency was the fact that when his colleague Michael O’Reilly actually spoke the truth, Trump fired him. O’Reilly came out of this nonsense with principles, while Pai came out of it looking like a Trump lapdog with no principles whatsoever. Pai only finally ditched the idea right after January 6th when everyone was focused on the insurrection on Capitol Hill, and he realized that he could dispose of the news while Trump’s attention was elsewhere.”

This leaves President Biden very little room to hail the removal as a victory. For all intents and purposes, the order itself was virtually dead in the water politically. If you arrive on the battlefield a year late when it’s all quiet on the western front, it’s stolen valor. When it’s the enemy who turned the guns on themselves, however, then it’s just pathetic. It’s good for Biden to rescind the order, but that’s not where the damage lies. As Masnick points out, it’s the fact that the order resulted in Trump removing key players like O’Reilly from the FCC, installing Nathan Simington in the vacant seat to ensure that two Republicans on the Committee are now anti-1st Amendment, anti-Section 230. “Trump didn’t end up getting the FCC to issue a reinterpretation of Section 230,” he concludes, “but he still did a ton of damage to the dialogue around Section 230, with tremendous help from Adam Candeub, Nathan Simington, and Ajit Pai.”

Biden’s rescission comes after a coalition of organizers filed lawsuits to strike down the Trump order. This includes Rock The Vote, Voto Latino, Common Cause, Free Press, Decoding Democracy, and the Center for Democracy & Technology, all sending a joint letter that the order “is a drastic assault on free speech designed to punish online platforms that fact-checked President Trump.” Although the parties heavily disagree in their reasons and rationales, expect the president to continue a similar line in reform, incremental or wholesale, that could change the internet as we know it for the worse.

Trump’s unconstitutional orders demanded consistent pressure to oppose, halted only after January 6th. For Biden, someone who has expressed wanting to remove Section 230 altogether, these kinds of values and institutional stooges could see a dangerous move away from precedent. Biden’s actions technically wipe the slate clean, sure, but if it only paves the way for the administration to sell repudiation of the former president while enacting a similar stinky agenda, we shouldn't fall for it so quickly. Voters, reporters, politicians, and activists alike must avoid these sleight-of-hand tricks if the administration continues to seek CDA reforms, such as the DOJ reform proposal introduced last October that could take center stage in Congress. For who are we if we forget even our most recent of history?

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