Wasting no time on his first day, President Trump signed a flurry of executive orders, one of which ordered government employees to stop pressuring social media companies to censor incorrect but otherwise protected speech on their platforms. Congress can add teeth and permanence to the order by taking action of its own through transparency requirements, which would require government officials to document their interactions with social media companies. This approach would be more effective than the usual arguments to revise Section 230.
Under the previous administration, President Biden attempted to curtail misinformation during the COVID-19 pandemic by threatening Section 230 liability protections for social media unless they censored misinformation more aggressively.
Trump’s recent executive order reflects a different, more sensible approach. Specifically, it forbids the use of employees or taxpayer resources in a way that could infringe on freedom of speech. This approach would be much more legally coherent and effective than when Trump issued an executive order during his first term to reinterpret Section 230, which was later revoked by Biden.
The reality is that Section 230 helps protect free speech online—and placing the liability on platforms for user posts means platforms would have to censor more, not less. Freedom and interactivity on the internet as it currently exists would be impossible as platforms would have to either not allow third-party content or extensively censor it to avoid liability.
Plus, when the market is allowed to operate unburdened by government interference, platforms fit their content moderation decisions to the preferences of consumers. Of course, this means some platforms may moderate speech on their platforms in ways consumers disfavor—but it also means consumers have more options to sort across platforms, rather than forcing a one-size-fits-all approach on everyone.
Discarding that pro-censorship policy and instead cracking down on jawboning—when the government uses informal pressure to influence content moderation decisions—would be a much more effective approach. But even that approach has limits. The order will only be as effective as the willingness of the executive branch to follow its self-imposed rules. If Trump or a future president decides to jawbone companies again and rescind the order or outright ignore it, little can be done.
That is why Congress needs to take steps to prevent this kind of overreach in the future by adding real checks and balances and codifying these rules into law. But creating rules that would effectively curtail jawboning is more difficult than one would expect given its informal nature.
If a law is too broad or tries to ban jawboning it can unintentionally forbid private speech by officials or discourage contact between government and social media platforms when it is appropriate, such as when communication is needed to tackle criminal activity. One possible approach is for Congress to pass a law to require more transparency when government employees communicate with platforms over content. As of now, it is difficult to prove that any one person’s speech was impacted by government pressure, and therefore difficult to seek legal recourse.
Government officials could be required to fill out forms to document whenever they request content, including their name, the nature of the request, and tracking information for disclosure. After all, sunlight is the best disinfectant.
Free speech online has come under threat, but not from Section 230, and targeting these protections would only hinder the speech advocates hope to protect. Trump’s executive order serves to remove the undue pressure from social media companies. This is a good but limited first step, but it is time to address the jawboning issue more directly.
President Trump deserves commendation for his executive order to crack down on jawboning—but it will only be as effective as the willingness of the Executive Branch to self-police its conduct. That’s why Congress should build on this development instead of relitigating the Section 230 wars.
Trey Price is a policy analyst with the American Consumer Institute, a nonprofit education and research organization. For more information about the Institute, visit us at www.TheAmericanConsumer.Org or follow us on X @ConsumerPal.