Deep Dive: Trump, Twitter and the First Amendment

The long-simmering discontent between President Donald J. Trump and Silicon Valley powerhouses boiled over this week.

Twitter slapped a fact-check label Tuesday on a presidential tweet about mail-in voting.

On Thursday, Trump retaliated with an executive order that he said will force companies like Twitter and Google to eliminate what he and other conservatives feel is built-in bias against their views.

And early Friday, Twitter said a tweet from Trump implying that protesters in Minneapolis, angered by the death of a black man while in police custody, could be shot was a violation of its rules against “glorifying violence.”

The company did not take down the tweet, saying it was “in the public interest” to allow the public to read it. But it did prevent users from viewing it without first seeing a note that it violated company policy. Twitter also blocked anyone from “liking” or replying to the post.

Here’s how the controversy, the battle lines and potential outcomes shape up, in my view:

What First Amendment concerns should we be alert to as this Silicon Valley-White House fight unfolds?

Whether this controversy initially rests more in political maneuvering or genuine concern over supporting free expression, we should first be alert to any effect coming out of this skirmish that limits our ability to express our views – on the Web or elsewhere.

That could include direct limits on what we post, or actions that would chill our speech, such as data collection that could result in public vilification by government that would echo the now discredited “blacklisting” of suspected communists in the late 1940s and 1950s.

We should remember that taking a shortcut through the First Amendment – suppressing views we don’t like, or think are in error – does not correct, solve or address the underlying conditions behind such views or the undeniable spread of mis- and disinformation accelerated by technology.

And we should recall that the nation’s founders provided strong First Amendment protections for our free expression under a belief that government could not intervene in the robust, sometimes uncivil discussion among citizens about public policy without harming the process.

Those same founders crafted those First Amendment protections so that we might speak to each other in the broadest possible manner and consider the widest possible set of options, with a goal of creating the widest possible good for all.

What’s behind this dispute?

Trump and his supporters say the Twitter fact-check move is just the latest manifestation of a politically motivated effort to muffle the president in advance of the 2020 elections – and that it echoes similar social media bias they saw during the 2016 presidential race, as well as long-standing attempts to silence or ignore conservative voices.

Twitter says it is merely applying a general policy that is intended to alert users to information that challenges statements made in a post. Many observers say the fact-check label is, at least in part, a response to loud critics who have long said Twitter and other social media enterprises are wrong to allow unchallenged misinformation and falsehoods from any source to enter public discussions.

There is dispute today among First Amendment advocates as to whether the traditional “marketplace of ideas” – in which all speakers have equal standing and equal access to all potential listeners – is appropriate or even still exists in an era in which misinformation spreads so quickly and pervasively via online methods of communication that any counter-view can be lost or rendered ineffective.

As a result, groups with liberal or conservative views would impose some limits or conditions on how social media operates. Trump’s order is the latest – and most visible – call to such actions.

What do Trump and Twitter say?

Trump says he’s defending free speech “from one of the gravest dangers it has faced in American history … a small handful of powerful social media monopolies control the vast portion of all private and public communications in the United States,” with “unchecked power to censor, restrict, edit, shape, hide, alter” a large portion of how people talk to each other.

Twitter CEO Jack Dorsey said Wednesday that the platform will continue to warn users about factual distortions on it. “This does not make us an ‘arbiter of truth,’ … Our intention is to connect the dots of conflicting statements and show the information in dispute so people can judge for themselves. More transparency from us is critical so folks can clearly see the why behind our actions.”

What are others saying about the fight?

Sen. Josh Hawley, R-Mo., a Trump advocate, said adding warning labels to the president’s tweets is an editorial decision that shows the social media platform is acting more like a publisher. As such, he said, the company should lose special “Section 230” protection from lawsuits over the content on their sites, which rests in defining the social media sites as mere conduits for information, in the way that companies that own telephone transmission technology are not responsible for the words and data that move through them.

“It makes little sense to treat companies that publish their editorial comments about others’ content as if they are mere distributors,” Hawley wrote in a letter to Dorsey. “Companies that act like publishers should be treated like publishers.”

Critics of the president mock his claim to be advocating for free speech online, saying his multi-faceted order is just the opposite  ̶- a blatant attempt to chill the First Amendment rights of private companies like Twitter. Some even say it’s a first step toward dismantling the centuries-old First Amendment protections against government control of how Americans – whether as individuals, groups or private enterprises – freely express themselves.

The president “is trying to steal for himself the power of the courts and Congress to rewrite decades of settled law,” said Sen. Ron Wyden, D-Ore., the architect of the legislation that the order seeks to reinterpret. “He decides what’s legal based on what’s in his interest.”

Yet another view, from Facebook CEO Mark Zuckerberg, speaking on Fox News on Wednesday: Companies like his should avoid entering disputes over truth and falsity. “Private companies probably shouldn’t be, especially these platform companies, shouldn’t be in the position of doing that,” he said.

Facebook spokesperson Andy Stone later said that removing protection from lawsuits would just make it likely that social media companies would simply avoid controversial issues – and thus, legal risks – entirely, closing down free expression for the billions of people worldwide who now “speak” via social media.

What does Trump’s order say it wants to do?

The scope and detail in the order make it clear this is not a sudden reaction to Twitter’s fact-check labeling, but rather is connected to a multi-year White House effort to put limits on social media that included a July 2019 “summit” of critics whom Trump praised in opening remarks: “Each of you is fulfilling a vital role in our nation. You’re challenging the media gatekeepers and the corporate censors to bring the facts straight to the American people.”

Foremost, it would change the 1996 law called “Section 230,” part of the now largely dismantled Communications Decency Act. Many experts call this section “the 26 words that created the internet.”

The law provides immunity to social media firms with regard to the posts by users, and leaves removal of posts to each social media firm’s own guidelines if the companies are acting “in good faith.” This is why Trump’s claim of political bias against conservative voices, and his in particular, is so central to his order.

Trump’s order would have the Federal Communications Commission start an internal review that could lead to new regulations on when social media companies would be protected under the law. It’s unclear if the FCC would actually be able to alter current law, or whether it would require Congress to amend the provision in the law it approved 14 years ago – something Attorney General William Barr said Thursday is something the Trump administration intends to do.

The order also:

  • Mandates that the U.S. Department of Justice consult with state attorneys general on allegations of anti-conservative bias in social media platforms. In that vein, it encourages federal-state legal action against “unfair or deceptive” practices by social media firms. It also creates a federal-state “working group” to develop model legislation for states that lack such provisions.
  • Requires federal agencies to audit their spending on advertising on platforms, with a goal of banning spending with companies deemed to have violated Section 230’s good-faith principles.
  • Orders the Federal Trade Commission to report on complaints about political bias that have been collected by the White House, and perhaps take action against companies the White House accuses of violating that Section 230 “good faith” requirement.
  • Authorizes collection of “publicly available data” – which in the Internet era can cover vast amounts of personal information – on social media users, ranging from who they interact with online to money earned on Web sites to any evidence that algorithms may favor or disfavor particular groups of users. This provision also calls for evaluation by the government of third party content evaluators being used by social media firms who evidence some kind of unspecified bias in officials’ view.

How likely is this presidential order to immediately affect the laws regarding our First Amendment freedoms?

Not likely to cause immediate legal changes. Social media companies, as private operations, can press in courts their own strong First Amendment rights to decide what appears on their platforms, and how it will appear. Allowing government to act as a “national nanny” with real authority over such companies will raise serious challenges to First Amendment protections not just for social media, but for all of us.

What about the long-term effects of the Executive Order on social media, and on how we perceive First Amendment freedoms?

The persuasive public power of the presidential “bully pulpit” is the foremost tool for change over the long term. If strong public support develops for changes through Congress and in state legislatures that would remove part or all of Section 230, the legal and social “ecosystem” in which social media companies now work with little public oversight could be altered. But that’s likely years in the making while the tech companies – and perhaps First Amendment advocates – mount massive lobbying efforts to block, stall or water down such changes.

Critics of the Executive Order say it is not intended to have any real impact, for multiple reasons:

  • Courts have had multiple opportunities to dismiss or alter the legal regime around how Section 230 works and have not done so;
  • Trump’s intent is a political tactic to whip up support among his “base” while also downplaying news about the U.S. passing 100,000 COVID-19 pandemic deaths; or
  • The Constitution sets too high a bar for any government effort that would punish any person or company for having views not backed by the White House.

As for the social media companies, if the net effect of all of this was to establish Twitter, Facebook and search engines like Google as “publishers,” their legal protections under the First Amendment for decisions would – with some irony – effectively be made stronger.

The companies would not be bound by any requirement to act in “good faith,” and could operate as other publishers do – freely making decisions about their own speech, presenting their own opinions with no requirement for “balance” or the inclusion of other views.

Those benefits might be of little use, though, given that they would assume legal liability for the posted content on their sites – a formidable, perhaps unsustainable financial burden.

A December 2019 social media statistics report on bandwatch.com, a social media monitoring company, noted that Twitter alone has 145 million daily users worldwide, who post 500 million tweets each day – about 6,000 tweets each second.

One risk for those who would challenge the “legal insulation” that Section 230 provides social media companies is that courts may determine that it’s impossible for such sites to evaluate all of their content given such an ongoing tidal wave of posts – in effect, substituting that judgment for the existing protection. Or, admittedly less likely, social media companies might decide they cannot continue to operate in the United States – cutting Americans out of global social media exchanges.

Gene Policinski is a senior fellow for the First Amendment at the Freedom Forum, and president and chief operating officer of the Freedom Forum Institute. He can be reached at [email protected], or follow him on Twitter at @genefac.

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