It is unfortunate that most of the attacks on the executive order fail to acknowledge the legitimate concerns motivating the order, namely that content moderation policies on certain social media platforms have a disparate impact on conservative expression and sometimes result in outright anti-conservative bias. Twitter's decision to single President Trump out for fact-checking appears to be an example of the latter.
That said, while we are sympathetic to these concerns and the executive order's 'commitment to free and open debate on the internet,' the order's solution – government regulation of private companies' content moderation policies – is a greater threat than the problem it seeks to address. People on both sides of the aisle should worry about putting the government in charge of policing speech. And conservatives should be particularly worried about giving more power to the federal bureaucracy, unleashing unscrupulous plaintiff's attorneys by weakening the protection of Section 230, saddling small internet startups with lawsuits and new regulations, and empowering the same activist state attorneys general who have brought us tobacco and climate change litigation.
The Administration cannot order the FCC and FTC, both independent agencies, to take any actions. While the executive order's more limited approach – petitioning the FCC for rulemaking and directing the FCC to 'consider taking action, as appropriate and consistent with applicable law' – is permissible, the FCC rules and FTC enforcement actions that result may be unlawful. Depending on the details, they may well violate the First Amendment rights of social media platforms or interpret Section 230 in a manner inconsistent with the statutory text, its intent, and its interpretation by the courts.
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