This is one of a series of blog posts about President Trump's May 28 Executive Order. Other posts are here, here, and here.
The inaptly named Executive Order on Preventing Online Censorship (EO) seeks to insert the federal government into private Internet speech in several ways. Section 3 of the EO threatens to leverage the federal government’s significant online advertising spending to coerce platforms to conform to the government’s desired editorial position.
This raises significant First Amendment concerns.
The EO provides:
Sec. 3. Protecting Federal Taxpayer Dollars from Financing Online Platforms That Restrict Free Speech. (a) The head of each executive department and agency (agency) shall review its agency’s Federal spending on advertising and marketing paid to online platforms. Such review shall include the amount of money spent, the online platforms that receive Federal dollars, and the statutory authorities available to restrict their receipt of advertising dollars.
(b) Within 30 days of the date of this order, the head of each agency shall report its findings to the Director of the Office of Management and Budget.
(c) The Department of Justice shall review the viewpoint-based speech restrictions imposed by each online platform identified in the report described in subsection (b) of this section and assess whether any online platforms are problematic vehicles for government speech due to viewpoint discrimination, deception to consumers, or other bad practices.
The First Amendment is implicated by this provision because it is, at its essence, the government punishing a speaker for expressing a political viewpoint. The Supreme Court has recognized that "[t]he expression of an editorial opinion . . . lies at the heart of First Amendment protection." The First Amendment thus generally protects speakers against enforced neutrality.
Although the government may have broad leeway to decide where it wants to run its advertisements, here it seems that the government would otherwise place advertisements on these platforms but for the sole fact that it dislikes the political viewpoint reflected by the platform's editorial and curatorial decisions. This is true regardless of whether the platform actually has an editorial viewpoint or if the government simply perceives a viewpoint it finds inappropriate.
This decision is especially suspect when the platform’s speech is unrelated to the advertisement or the government program or policy being advertised. It might present a different situation if the message in the government’s advertisement would be undermined by the platform’s editorial decisions, or, if by advertising, the government would be perceived as adopting the platform’s viewpoint. But neither of those is contemplated by the EO.
The EO thus seems purely retaliatory, and designed solely to coerce the platforms to meet the government’s conception of acceptable “neutrality”—a severe penalty for having a political viewpoint. The goal of federal government advertising is to reach the broadest audience possible: think of the Consumer Product Safety Commission’s Quinn the Quarantine Fox ads, or the National Park Service’s promotions about its units. This advertising is not a reward for the platform for its perceived neutrality. It’s a service to Americans who need vital information.
In other contexts, the Supreme Court has made clear that the government’s spending decisions can generally not be “the product of invidious viewpoint discrimination.” The court has applied this rule to strike down a property tax exemption that was available only to those who took loyalty oaths, explaining that “the deterrent effect is the same as if the State were to fine them for this speech.” And the court also applied it when a county canceled a contract with a trash hauler who was a fervent critic of the county’s government. Even when the court rejected a First Amendment challenge to a requirement that the National Endowment for the Arts consider “general standards of decency and respect for the diverse beliefs and values of the American public” as one of many factors in awarding arts grants, it emphasized that the criterion did not give the government authority to “leverage its power to award subsidies on the basis of subjective criteria into a penalty on disfavored viewpoints,” and funding decisions should not be “calculated to drive certain ideas or viewpoints from the marketplace.”
By denying ad dollars that it would otherwise spend solely because it disagrees with a platform’s editorial views, or dislikes that it has editorial views, the government violates these fundamental principles. And this in turn harms the public, which may need or want information contained in government advertisements.
Published June 02, 2020 at 12:32AM
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