Trump is unleashing an executive order against social media companies, and it could trigger a legal fight they desperately want to avoid (FB, TWTR)

Donald Trump plans to issue an executive order targeting social media companies on Thursday.
The US President has been railing against tech companies after Twitter fact-checked two of his tweets.
It's not immediately clear what the executive order will detail — but it threatens to plunge tech firms into a fight they've tried desperately to avoid.
The right have accused tech companies of deliberately discriminating against conservatives, which they deny.
Trump threatened to shut certain social media companies down altogether — or he might target the legal protections they rely on.
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President Donald Trump is preparing to issue an executive order targeting social media companies — plunging them into a political and legal quagmire they have desperately tried to avoid.

On Wednesday, the White House press secretary Kayleigh McEnany said the president will issue an executive order "pertaining to social media" on Thursday, without providing specifics. The announcement came after a day of extremely aggressive rhetoric from Trump against social media companies, prompted by Twitter applying warning labels to two inaccurate tweets the 73-year-old politician posted about the purported dangers of mail-in ballots on Tuesday.

Trump responded in fury, threatening to shut down social media companies altogether, and the US President's allies were quick to jump in — repeating popular but unproven allegations that social media companies are deliberately discriminating against conservatives. "Republicans feel that Social Media Platforms totally silence conservatives voices. We will strongly regulate, or close them down, before we can ever allow this to happen. We saw what they attempted to do, and failed, in 2016," Trump tweeted.

In fact, companies like Twitter and Facebook have gone to great lengths to avoid alienating conservatives — creating carve-outs to protect Trump from being banned for what would otherwise be violations of their rules, and nixing certain changes to their platforms over fears they might offend the right.

The warning label Twitter applied to Trump's tweets was also a notably mild one, not even directly pointing out the falsehoods in his messages unless a user clicks through to a second page. The label on Trump's tweets read simply "Get the facts about mail-in ballots."

president donald trump twitter fact check mail in

This hasn't stopped the right from making allegations of bias and censorship for years, having found that companies im liberal Silicon Valley make an easy bogeyman to cast as coastal elites interfering in ordinary voters' lives.

It remains unclear what exactly Trump's executive order will target — as well as whether it will have any firm legal backing. Legal experts say Trump's previous threat to shut down social media firms has "absolutely no legal authority," Business Insider previously reported.

The likely target is a 24-year old law that shields internet companies from liability

One possibility is that Trump might attempt to alter social media companies' legal liability for content on their platforms unless they comply with his demands. Currently, platform companies generally can't be sued or prosecuted for illegal content that appears on their services (so long as they remove it when they become aware of it); this is why Facebook doesn't get hit with charges when it's used to share terrorist material, for example. (In the US, this is governed by Section 230 of the 1996 Communications Decency Act, which basically says that the companies won't be treated as publishers of the offending material.)

On Tuesday, Republican Senator Marco Rubio suggested that Twitter, by applying the warning label to Trump's tweets, was acting like a publisher and should no longer be protected. "If they have now decided to exercise an editorial role like a publisher then they should no longer be shielded from liability & treated as publishers under the law," he tweeted. (In fact, social media companies have moderated their platforms in this way since their inception, albeit not on such a politically fraught arena.) Trump's executive order might take a similar line of reasoning.

Eric Goldman, a professor at Santa Clara University School of Law who specializes in digital law, told Business Insider that Trump did not have legal authority to revoke or alter Section 230. That's because the rule has already been passed by Congress and a President can't veto a law after it's been passed.

What's more, said Goldman, any attempt by a president to control what social media companies publish or how they publish it would be a flagrant restriction on freedom of speech.

"It's not a close call at all," Goldman said, though he added that "it doesn't mean they won't try."

If Trump does take aim at Section 230, it would force tech companies into a fight: While they have been loathe to offend Trump, if the executive order targets Section 230, they will need to fight vigorously to defend it. If the likes of Facebook and Twitter were held legally liable for the content that anyone posts on their platform, it would be ruinous; social media in its present form would effectively cease to exist, sunk beneath a sudden tide of lawsuits. Industry experts believe the businesses would do near-anything to defend it.

The Trump White House is also no stranger to having executive orders and initiatives struck down by the courts as having no legal basis, losing 65 cases in the first two years of the administration. But even if it ultimately fails, the executive order may have to energize Trump's base, and perpetuate an us-versus-then narrative that demonizes the tech industry as out to attack the president — giving him the fight he wants.

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