President Donald Trump signed a new executive order on social media Thursday. Klon Kitchen, director of the Center for Technology Policy at The Heritage Foundation, joins the podcast to discuss what the order does, how it affects tech companies, and the future of free political speech online. Read the lightly edited transcript, pasted below, or listen to the interview on the podcast:
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Kate Trinko: On Thursday, President Donald Trump signed a new executive order on social media. Joining us today to discuss is Klon Kitchen, the director of the Center for Technology Policy at The Heritage Foundation. Klon, thanks for coming on.
Klon Kitchen: It’s my pleasure.
Trinko: So first, for background, President Trump signed this executive order after two of his tweets were fact checked by Twitter this week, the first time that Twitter had ever fact checked tweets, and it was about Trump’s tweet regarding mail-in ballots and voter fraud. So before we get into that executive order that President Trump just signed, what are your thoughts on the fact check and Twitter’s decision to do that?
Kitchen: Yeah. So I thought it was ill-advised. One, on the particular tweet that they fact checked the president on, he had made an assertion that there was a correlation between wide scale mail-in balloting and election fraud. And a number of Heritage [Foundation] papers have demonstrated that this is the case. And so just on a fact basis, Twitter was off the mark.
But more fundamentally, they injected themselves into a political conversation, and they ultimately established for themselves a standard that they can’t possibly keep.
So they identified the president’s tweet as being misleading. Well, what about when someone on the left side of the political spectrum says that conservative tax policy is going to kill minorities? Does that get a pass? Up until this point, it has. And if they don’t fact check those kinds of assertions, or practically every Chinese diplomat and what they’re saying on Twitter, then the company is going to be reasonably called hypocritical and politically biased.
Trinko: So let’s move to the bigger picture here. What does Trump’s executive order on social media actually do?
Kitchen: It does a couple of things. So the first thing it does is it calls on federal agencies to protect against arbitrary speech restrictions online. So it’s the president looking at departments and agencies and saying, “Within your purview, within your normal operating activity, make sure that you are doing what you can to prevent online platforms from doing these arbitrary speech restrictions.”
The second thing it does is it prohibits federal spending on advertising on platforms that have been deemed to be violating the government’s free speech policies. So if a department or agency is doing marketing ad buys on one of these social media companies, and the government has determined that that social media company has violated the free speech policies, well then the federal government now says spending that money is prohibited.
The [executive order] also calls for a review of how internet companies may be using unfair or deceptive practices, specifically including how they meet or don’t meet what’s called the good faith clause in a particular piece of legislation called the Communications Decency Act, and particularly within that, a portion called section 230.
And then finally, the last thing it does is it calls on the Department of Justice to build a working group of state attorney generals to examine if any of these internet companies are violating any state laws against unfair and deceptive practices.
Trinko: Let’s talk about section 230, which you mentioned. What is that and how does it relate to tech companies?
Kitchen: The Communications Decency Act is a pretty fundamental and vital piece of legislation, and section 230 is particularly important. What section 230 does is it lays out what’s called intermediary liability protections for internet companies. Now, the original objective of this section of the Communications Decency Act was to free internet companies from being sued into oblivion if they decided to remove offensive content.
So when it was originally written, this was the early days of the internet, and people were putting, you can imagine, all of the worst things possible on a series of message boards. And a couple of these message board publishers took down that stuff. It was gross, and they took it down.
Well, they got sued, and were told that taking down smut from their websites was an abridgment of some people’s First Amendment rights. And so Congress said, “No, no, no. We want to make sure that the internet is not the worst possible place that it could be, and we think publishers should have the right to make decisions about what they will and will not host.”
To get these protections, however, means that they’re not editorializing. So they’re not like newspaper publishers or editors. They’re simply providing an online forum.
Well, over time, things like Facebook and Twitter and YouTube have come into being, and this section 230 protection has been interpreted to include them, such that they are able to make decisions about content that they will and will not host. And as popular perceptions of anti-conservative bias have proliferated, section 230 is getting a reexamination, and that is a part of what the president’s executive order kind of provokes.
Trinko: So what is your opinion on this executive order?
Kitchen: Ideally, executive orders are not the way you want to do policy. The president was, I think, rightly frustrated with the way that he was treated by Twitter, and I think it’s also important to understand that it’s not just the president who is concerned about these issues.
So in our statement on the executive order, we cite a Pew Research poll that shows that more than 70% of polled Americans say that they believe that online internet companies do censor content that they find offensive to their kind of political values. So this is a bipartisan concern, but the president’s tweets and what happened over the last week really brought this to the fore.
So number one, the concerns I think are legitimate. Number two, everything that the executive order calls to be done, every tasking that the government agencies receive, is within the president’s responsibility and constitutional authorities to ask the government to do. So we do not think that he is exceeding his mandate or his authorities.
That said, a lot is going to depend on how the departments and agencies follow through on all of this. And that’s what we tried to make clear in our statement, that while the president is well within his authorities, it really is consequential and it really will matter how the departments and agencies follow through on those orders, and that’s why we’ve already begun to engage with the government heavily to help them understand what we think are the constitutional principles that should be in play and how they can go about answering the president in a way that fits with first principles.
Trinko: Well, there’s a lot to unpack there. To go back to the point you made about how over 70% of Americans are concerned about censorship on social media, do you have thoughts beyond this executive order of the ideal way that the tech companies should handle those concerns, and how should they approach political speech in these divisive times?
Kitchen: There’s kind of two sides of the coin when it comes to how people, how these companies are approaching political speech … On the one hand you have the Twitter model, which simply says, “Yeah, we’re going to weigh in to these conversations when we feel fit, and we’re going to make judgements and kind of be the arbiters of truth on our platform.” On the opposite side of the spectrum is the Facebook model, which says, “Yeah, you know what? We’re not going to be in the fact-checking business. We’re going to let the American people kind of make that determination, and there are plenty of resources available for them to do fact finding and research on any given claim that a politician may make.”
I will say that the Facebook model is imminently more defensible. So applying that standard of, “We’re not going to get involved,” is a lot easier, and it’s a better way to be coherent than the Twitter model, because as I mentioned before, with what Twitter has done with the president, are they going to fact check the ayatollah of Iran who makes all kinds of insane claims about the United States, or the Jewish people in Israel, or as I mentioned previously, if someone says that Republican policies are going to result in people being thrown out of their homes and living on the streets, is that going to get fact-checked?
The bottom line is … Twitter has just built for itself an impossible standard to keep. They’re going to fail at it, and it’s going to be a real problem for them going forward.
Trinko: In response to President Trump’s executive order, Twitter’s public policy arm tweeted, “This executive order is a reactionary and politicized approach to a landmark law. Section 230 protects American innovation and freedom of expression, and it’s underpinned by democratic values. Attempts to unilaterally erode it threaten the future of online speech and internet freedoms.” How do you see, and I know some of this might depend on how things are actually implemented, but how big a deal is this order for the tech companies, and how do you foresee it will affect them?
Kitchen: Well, I think the White House intended, and I think it is having the impact that they intended, for this to be understood as a real shot across the bow.
So section 230, if you’re in the tech space, section 230 is close to being sacrosanct, and the president’s willingness, and even quite aggressive engagement in the executive order on the issue, is definitely getting their attention. I think that Twitter response demonstrates that they take this very seriously, and that we’re now in the realm of very consequential and important issues.
Historically, The Heritage Foundation has said that section 230 is really a net gain, that it does help these companies not get obliterated by endless lawsuits, that it has implications for things like these companies’ right to free speech, even property rights, and so we do agree that this is a very important and meaningful issue, but as we say in our statement on the [executive order], we also understand that the section 230 liability protections are a privilege, they’re not a right.
And if these companies cannot enjoy that privilege in a way that is for the national good and responsibly, I think that’s why you’re going to see the government taking a really hard look at what, if anything, should be done.
Trinko: So part of this executive order involves the Justice Department overseeing a review. How do you anticipate that working, and what are the other things that will be happening over time related to this executive order that should be monitored?
Kitchen: All of this is going to need some careful oversight, and one of the points that Heritage is making over and over again is that it really, really matters how this is done, and it really, really matters what we kind of conclude on the other side of this, precisely because this is such a consequential issue.
The DOJ provision specifically has the department building a working group of state attorneys general, who are going to look and see if any of these internet companies have broken state laws when it comes to unfair or deceptive business practices.
That’s an aggressive move. It is the Trump administration communicating that it is willing to pursue any and all avenues to hold accountable these companies when it comes to their business practices.
It obviously fits into another context where we have seen a group of attorneys general who have been pursuing antitrust investigations against some of these companies, and so those two things are significant and they combine to create a very potent context for these companies as they think about how they’re going to operate going forward.
Trinko: Klon, thanks so much for joining us today.
Kitchen: It’s my pleasure.