Trump’s executive order on free speech is good, but new administration must protect Section 230

On Jan. 20, 2025, President Donald J. Trump signed an executive order (EO) titled “Restoring Freedom of Speech and Ending Federal Censorship,” marking a significant commitment to upholding the First Amendment. While the EO acknowledges past government overreaches, sets a precedent for greater accountability, and claims a commitment to free speech, it falls short by failing to protect Section 230 of the Communications Decency Act of 1996—a key free speech provision for online discourse.  

Jawboning was a major issue over the last administration, with the intense pressure the federal government placed on Meta during the COVID-19 pandemic to moderate certain pieces of content, often with political undertones. By correctly acknowledging this as an unconstitutional practice, this particular EO undoubtedly represents a step forward for free speech.

However, the EO does not mention Section 230—a provision that gives platforms legal immunity from user-generated content. Eliminating Section 230 could have the same effect as jawboning, as the government could then define the types of content platforms are legally liable for hosting (or not hosting). Platforms would effectively respond the same way Meta did—by attempting to eliminate any speech they think could get them into legal trouble.

Often lost in the discourse around free speech is the fact that private organizations like businesses and nonprofits also have First Amendment rights. When individuals are on a business’ private property, the business has the prerogative to moderate their speech. This is a crucial right for businesses—it would clearly violate the First Amendment if the government forced them to promote speech against their will.

One famous Supreme Court case struck down a local law that would have required parade organizers to include LGBTQ+ messaging at their events. The court concluded that individuals retain their First Amendment rights even if they form a private group to craft and display their message. The government cannot force groups of individuals (e.g., firms, nonprofits) to either display or exclude certain types of messages; thus, when someone creates a platform for speech, they retain the right to curate that speech in whatever way they like.

Without Section 230, the government could prosecute platforms that allow certain types of speech the government does not like. Attorney General nominee Pam Bondi expressed openness to reevaluating or eliminating Section 230 during recent Senate confirmation hearings, her statements aligning with sentiments from legislators like Sen. Lindsey Graham (R-S.C.), who advocates for its repeal or amendment.  

While the intent to hold platforms accountable is understandable, dismantling Section 230 could inadvertently stifle free speech. Without these protections, platforms might become overly cautious, removing controversial or dissenting content to avoid potential litigation. This risk-averse behavior could lead to a homogenized online discourse, undermining the very free speech principles the EO aims to protect.

Moreover, the absence of Section 230 protections could impose significant legal and financial burdens on smaller platforms, potentially leading to a consolidation of online spaces dominated by a few large corporations. This concentration of control could further limit the diversity of voices and opinions available in the digital public square.

A more balanced approach would involve preserving Section 230 while encouraging platforms to enhance their mechanisms for addressing legitimate harms, such as defamation or incitement to violence. This could include clearer community guidelines, more transparent moderation practices, better cooperation with law enforcement, and accessible avenues for users to report and resolve grievances.

While Trump’s EO is a positive affirmation of free speech and a death knell for jawboning, it is imperative that the administration carefully consider the broader implications of altering Section 230. Doing so could have the same effect as jawboning, with platforms seeking to avoid penalties for speech the government deems unacceptable. Maintaining this provision is crucial for a vibrant, open, and diverse online ecosystem where free expression can truly flourish.