Trump’s social media executive order is a huge opportunity

On Thursday, May 28, 2020, President Trump signed an executive order “on preventing online censorship.” Among other things, the order calls for the Federal Trade Commission to regulate social media companies that engage in content moderation practices that “do not align with” their public representations. It also calls for the Department of Commerce to ask the Federal Communications Commission to regulate content moderation practices that are “deceptive, pretextual or inconsistent with a provider’s terms of service; or the result of inadequate notice, the product of unreasoned explanations, or having been undertaken without a meaningful opportunity to be heard.”

It is possible to hold two thoughts in your mind at the same time. One is that President Trump’s social media executive order is part of an unconstitutional assault on the rule of law in attempting to pressure independent regulatory agencies to take action against the social media companies that he views as his political enemies. The second is that these proposals for social media transparency are pretty good.

The independent agencies should not bend to the President’s blatant attempt to bully social media companies… but Congress should take advantage of the opportunity presented by the executive order to legislate transparency duties for social media companies, requiring them to disclose crucial information about their content moderation programs and enforcement techniques.

Progressives have had to perform this balancing act before. Antitrust critics of tech companies like Google and Amazon and Facebook have not let up on their criticisms of the behavior of these dominant companies just because President Trump views them as his political opponents. They continue to call for the antitrust agencies or Congress to break up the companies or take steps to promote competition in their markets.

In the same way, progressives should take this opportunity to join with other tech company critics to ask Congress to force social media companies to open up about their content moderation rules and enforcement practices.

These transparency rules should require public disclosure of the operation of platform content moderation programs, including content rules, enforcement techniques such as deleting, demoting or delaying content, procedures for the public to complain about possible rules violations, procedures for platforms to explain their decisions to affected parties, and procedures for individual appeals in connection with enforcement actions.

These disclosure rules should mandate reports to government agencies and to the public with aggregate statistics accurately reflecting the operation of the content moderation programs. They should reveal the technical terms of reference of algorithms used in content moderation, prioritization and recommendation, without disclosing valuable intellectual property.

The rules should provide for access to platform data for qualified independent researchers to permit regular and ongoing audits of these platform operations to verify that they are operating as described and intended. The researchers should be authorized to access data relevant to the operation of content moderation programs, sponsorship of political advertisement and content-ordering techniques, including recommendation and prioritization algorithms.

President Trump and other conservative critics such as Sen. Josh Hawley (R-Mo.) think social media companies are biased against conservatives. There’s actually no systematic evidence of this, merely anecdotes. But transparency is one way to assess this allegation in a serious way. If social media companies are selectively enforcing their rules more vigorously against conservatives than against other points of view, independent researchers should be able to verify this if they have sufficient access to social media data.

The executive order is right to emphasize the Supreme Court’s Packingham decision that social media companies “can provide perhaps the most powerful mechanisms available to a private citizen to make his or her voice heard.” Moreover, social media users have rights to a range of diverse views on the controversial topics of the day and these rights, as the Supreme Court has ruled in Red Lion, are “paramount.”

But direct content regulation of speech on social media platforms would almost certainly be unconstitutional. A requirement for impartiality might also fail a First Amendment test. Transparency does not raise these free expression issues. Rather than acquiesce in President Trump’s outrageous and unconstitutional attempt to muzzle his critics through agency action, Congress should protect the speech rights of social media users by mandating social media openness.

Mark MacCarthy is senior fellow at the Institute for Technology Law and Policy at Georgetown Law.  Previously, he was senior vice president for public policy at the Software & Information Industry Association.