• by Wendy Davis  @wendyndavis, May 14, 2021

President Joe Biden on Friday revoked former President Donald Trump's controversial executive order that aimed to regulate social media companies' editorial policies.

The now-repealed “Order on Preventing Online Censorship” directed government officials to consider issuing rules that could tie web companies' protection from lawsuits to the companies' content-moderation policies.

Trump's order specifically directed the Commerce Department to ask the Federal Communications Commission to issue regulations that could limit tech companies' legal protections when they restrict or remove material without providing a "reasoned explanation.”

He issued the order after Twitter alerted users to dubious claims he made regarding election fraud.

Currently, Section 230 of the Communications Decency Act protects Twitter, YouTube, Facebook and other web publishers from lawsuits based on material posted by users, as well as from lawsuits over content-moderation policies. (The First Amendment also protects web publishers from lawsuits over content moderation, but Section 230 is seen as offering companies a faster and easier means of prevailing in court.)

Many policy experts, along with some government officials, said last year that Trump's order was likely unlawful.

“Social media can be frustrating. But an Executive Order that would turn the FCC into the President's speech police is not the answer,” FCC Commissioner Jessica Rosenworcel, currently serving as acting chair of the agency, tweeted last May. “It's time for those in Washington to speak up for the First Amendment. History won't be kind to silence.”

Legal experts also noted that the Communications Decency Act doesn't empower the FCC to craft regulations.

“An executive order can't overrule a statute of Congress,” Jeremy Goldman, a partner with the law firm Frankfurt Kurnit Klein & Selz, told MediaPost last year. “There is no mechanism in the statute for any enforcement action by the FCC.”

Last October, the FCC began soliciting comments from the public about potential rules, but former chairman Ajit Pai said in January that the agency wasn't going to move forward with regulations.

The digital rights group Center for Democracy & Technology, which unsucessfully challenged the order in court last year, cheered Biden's move.

“As we have consistently argued, President Trump’s Executive Order was an attempt to use threats of retaliation to coerce social media companies into allowing disinformation and hateful speech to go unchecked,” Alexandra Givens, President and CEO of the organization, stated Friday afternoon.

The Association of National Advertisers' general counsel Doug Wood said last year the order violates the First Amendment, but recommended at the time that advertisers hold off on legal action. 

“We are advising restraint for the time being,” he told MediaPost last year. “It’s best to let this play out and monitor what will impact brands.”