White House Potentially Exploring Executive Order On 'Social Media Bias'

from the the-first-amendment-would-like-a-word dept

The White House may be preparing an executive order for the President, pushing for investigations of "bias" at social media companies. It is not definite, but someone has leaked us a draft two page executive order. We're not releasing the draft because, despite it coming directly from someone in the White House, others have insisted it's not an accurate document, even as the approach to some extent mirrors the announced plans of the DOJ to investigate bias. Another reason we're not releasing the document itself is that we're quite aware of reports saying that there are attempts to find "leakers" in the White House, and one common method of doing so is to put small indicators in documents. We cannot guarantee that this document is not such a document and thus will be reporting on the basic concept of what's in this draft, without revealing the full document.

But, to be clear, if this document is accurate, it would almost certainly lead to a huge First Amendment fight, which it seems likely the companies would win.

Obviously the issue of social media and supposed political bias has been a big topic in DC lately -- including with the President -- despite the near total lack of actual evidence to support these claims. Yes, there is evidence of people being kicked off these platforms... but there is no evidence that the reasons have anything to do with political bias (people of all political stripes have been removed from these platforms). And, yes, there is also evidence that employees at many internet companies may lean one way politically, but that too is overstated and says nothing about how the platforms actually work.

Recently, we noted that the DOJ and various state Attorneys General were talking about using antitrust law against social media companies over bias, and explained in fairly great detail why that would almost certainly run afoul of the First Amendment and a whole long list of Supreme Court cases detailing how the government cannot compel speech of this nature.

And that's where this executive order, as leaked, would almost certainly run into huge First Amendment issues. It tries to hide these behind antitrust claims, saying that it's about ensuring competition and preventing the exercise of market power that "harms consumers, including through the exercise of bias." The Executive Order itself doesn't hide the intent, as "bias in online platforms" is specifically in the title. Basically, the order would task the White House with "investigating" social media platforms for bias and then seek to use antitrust actions (or pass it off to the DOJ or FTC) to punish companies that show loosely defined "bias." The document takes as default that any kind of "bias" on major internet platforms should be taken as anti-competitive (which seems incredibly questionable) and then also requires that various agencies give the President a report on how to "address" social media bias.

I have trouble seeing how this could possibly be constitutional under the First Amendment, as it is, quite explicitly, the government trying to regulate speech, and clearly does not fall into any of the exceptions to the First Amendment. It's possible this executive order will never actually become anything -- perhaps someone in the White House will prevent it from moving forward (it's also clear that the draft I've seen is not complete, as there are still notes about what's being worked on). But the fact that this is even being considered is certainly notable.

I asked Ken White, well known around here as a former Assistant US Attorney and current First Amendment lawyer what he thought of the draft and he noted that the document seemed so weakly put together that he had a hard time believing it was something anyone was seriously considering, though, he noted "with this administration it's very difficult to tell." He also noted that it appeared to be "more posturing than substance" and designed to "preach to the choir" rather than anything serious. As for the substance, he noted that while it asserts that "bias" is a violation of antitrust law, that's not at all accurate:

That’s a distortion and exaggeration. Nothing in the document elaborates or supports it. To the extent antitrust is concerned with bias it’s not the "kick the Nazis off the platform" kind. It's more like a concern about, for instance, Google altering search results to prefer products and services it owns.

Indeed, the general point of antitrust is to deal with when a dominant player is abusing its position to favor its own offerings, not on how it handles general moderation duties. So, while I wouldn't put it past this administration to mock up this kind of executive order as an exercise in thinking through what it can "do" about the exaggerated and misleading claims of "political bias" in search results, I have a hard time believing the administration would bother pushing forward with this idea, and if it actually did get that far that it would have any luck in convincing anyone (who matters) that this was constitutional. That said, if the point is just, as Ken suggested, preaching to the choir, I also wouldn't put it past this administration to push out this executive order just to rile up Trump's most ardent supporters, who continue to scream to the heavens about political bias in search results, despite a near total lack of evidence to support such claims.

Filed Under: antitrust, bias, doj, donald trump, executive order, first amendment, free speech, social media bias
Companies: facebook, google, twitter