The Gist of Executive Order #13925 Preventing Online Censorship, May 28 2020

By Jacob Shreffler. May 29th 2020. This article may be distributed anywhere in its entirety.

The True Construction of the Federal Decency Act

The federally created grant of immunity to certain Internet service providers (which is including social media web site providers such as Youtube, Facebook, and Twitter) at U.S. Code title 47 section 230, which is from the Communications Decency Act of 1996, part of the federal Telecommunications Act of 1996 [Volume 110 U.S. Statutes at Large p. 56], has been broadly construed beyond immunizing the censorship of content for the “good faith” belief that the content censored was indecent. The statutory phrase is: “obscene, lewd, lascivious, filthy, excessively violent, harassing or otherwise objectionable”. Through this Executive Order, Trump is essentially accusing companies like Google, Youtube, Twitter, and Facebook of being guilty of bad faith. One of the the controversies is whether “otherwise objectionable” is to be construed narrowly under the purposes of the Decency Act, or construed broadly to effect Democrat machine goals of political censorship having nothing to do with indecency.

[Footnote: For those having libertarian leanings: One might be interested to know briefly what kind of grounds might exist for this Executive Order and possible future Congressional actions which may be arising from the interplay between proprietary rights held by government and the private sector. For the purposes of basic constitutional history, important early case precedents upholding Constitutional authority for government regulation might be found in cases concerning the regulations under the postal clause and in cases concerning telegraphy by railroads or AT&T and its predecessors. Note that companies like AT&T and RCA were once subjected to control or influence by Navy Intelligence and the Postmaster General, which control may have been abused to circumvent antitrust laws. Also note that McCulloch v. Maryland (1819) in the supreme court of the United States, concerning federally created implicit immunity for banks from state taxation, is premised on the mingling of federal and private funds in the hands of a banker, and that Internet Service Providers and social media websites are, by a loose analogy, mingling the transmission of state, federal, and privately produced content. A user of the Internet may be deemed to be placing his datagrams in federal hands in some jurisdictional sense, in an analogy to the federal and private-express-statute postal system. Note also that common carrier regulations have an origin in common law precedents concerning bailments such as bailments of wine casks which were dropped and broken, and in early cases concerning regulations on hotels and ferries.]

This author suspects that the strategy of the leftist political machines, including Twitter, Facebook, and their third party censoring organization who were encouraged by Senator Blumenthal, may well be the following: In addition to creating cultish political agitation in favor of censorship, they may also be trying to build a future case that Republicans may be censored online because they are legally indecent under the statutory phrase, and that this implicitly alleged indecency arises out of alleged racist or Nazi-like political beliefs which violates statements of so-called “Community Guidelines” amounting to a tacit corporate policy based definition of “indecency”. As near as this author can tell at a glance, the present Section 230 case law has not usually gone any further than to just say that the 230 immunity is to be “broadly” construed, to allow censorship of unsolicited bulk emails, blacklisting of ‘unwanted’ software, and so forth, without any showing concerning the original statutory concept of indecency, and therefore the judiciary remains a potential threat to this EO going forward as the censors may have no choice but to carry forward an attempt to prove in court that Republican or patriotic speech is legally indecent.

The EO asks the Secretary of Commerce (and with assistance from the USAG) to act through the NTIA, in the Department of Commerce (which historically has replaced DARPA, NSF, and DCA as an agency having authority over the Internet) to petition the FCC to implement regulations “to clarify” the construction of the Section 230 immunity to make a “narrow” construction of 230 so that a national policy of (Sec. 2) “promoting free and open debate on the internet” is implemented.

Concerning Communism:

*EO Preamble: “One United States company, for example, created a search engine for the Chinese Communist Party that would have blacklisted searches for ‘human rights,’ hid data unfavorable to the Chinese Communist Party, and tracked users determined appropriate for surveillance.”

*EO Sec. 5b: USAG Working Group to collect information regarding “differential policies allowing for otherwise impermissible behavior, when committed by accounts associated with the Chinese Communist Party or other anti-democratic associations or governments”.

POTUS asks the United States Attorney General to convene a working group inviting State Attorneys General and then propose State (Sec. 5) and Federal (Sec. 6) Legislations for carrying into effect the policies of this Order.

The EO asks: Does it violate Unfair and Deceptive Practices statutes when social media sites represent themselves as neutral platforms?

In Sec. 4: “It is the policy of the United States that large online platforms, such as Twitter and Facebook, as the critical means of promoting the free flow of speech and ideas today, should not restrict protected speech”.

The May 2019 Tech Bias complaints to Whitehouse to be passed on to Department of Justice, FTC (4b), and the USAG’s Working Group (5b).

This author expects the authority of the FCC to promulgate regulations construing statutory indecency under section 230 may be challenged in court.

There is even a possibility we will see a supreme court case where both sides are raising a first amendment issue. [ ]