President Biden Revokes Unconstitutional Executive Order Retaliating Against Online Platforms

President Joe Biden on Friday rescinded a dangerous and unconstitutional Executive Order issued by President Trump that threatened internet users’ ability to obtain truthful information online and retaliated against services that fact-checked the former president. The Executive Order called on multiple federal agencies to punish private online social media services for content moderation decisions that President Trump did not like.

Biden’s rescission of the Executive Order comes after a coalition of organizations challenging the order in court called on the president to abandon the order last month. In a letter from Rock The Vote, Voto Latino, Common Cause, Free Press, Decoding Democracy, and the Center for Democracy & Technology, the organizations demanded the Executive Order’s rescission because “it is a drastic assault on free speech designed to punish online platforms that fact-checked President Trump.”

The organizations filed lawsuits to strike down the Executive Order last year, with Rock The Vote, Voto Latino, Common Cause, Free Press, and Decoding Democracy’s challenge currently on appeal in the U.S. Court of Appeals for the Ninth Circuit. The Center for Democracy & Technology’s appeal is currently pending in the U.S. Court of Appeal for the D.C. Circuit.

Cooley LLP, Protect Democracy, and EFF represent the plaintiffs in Rock The Vote v. Biden. We applaud Biden’s revocation of the “Executive Order on Preventing Online Censorship,” and are reviewing his rescission of the order and conferring with our clients to determine what impact it has on the pending legal challenge in the Ninth Circuit.

Trump issued the unconstitutional Executive Order in retaliation for Twitter fact-checking May 2020 tweets spreading false information about mail-in voting. The Executive Order issued two days later sought to undermine a key law protecting internet users’ speech, 47 U.S.C. § 230 (“Section 230”) and punish online platforms, including by directing federal agencies to review and potentially stop advertising on social media and kickstarting a federal rulemaking to re-interpret Section 230.