Trump vs Twitter

[JRT]

President Trump may have chosen the wrong fight in his war with Twitter:

Trump is doubly wrong about Twitter

Laurence H. Tribe, Joshua A. Geltzer


Laurence H. Tribe is the Carl M. Loeb University Professor and Professor of Constitutional Law at Harvard. Joshua A. Geltzer is executive director and visiting professor of law at Georgetown’s Institute for Constitutional Advocacy and Protection.

On Tuesday, President Trump claimed — on Twitter, no less — that Twitter is “stifling FREE SPEECH,” thus suggesting that Twitter is violating the First Amendment. As usual, Trump is wrong on the law, but this time he’s even more wrong than usual. There is someone violating the First Amendment on Twitter, but it’s not Twitter — it’s Trump. What’s more, his threat on Wednesday to shut down Twitter altogether would mean violating the First Amendment in new ways.
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Trump is utterly mistaken in claiming that Twitter is violating the First Amendment — or even that Twitter can violate the First Amendment. Prompting Trump’s outburst was the platform’s first-ever attachment of warnings to two of Trump’s tweets encouraging users to “get the facts about mail-in ballots.” Clicking the warning leads to a news story indicating that “Trump makes unsubstantiated claim that mail-in ballots will lead to voter fraud.” Attaching these warnings, Trump claimed, was Twitter’s First Amendment sin.

But it’s no constitutional violation. To begin with, the First Amendment applies to the government — not to private actors like Twitter. So, when the company adds warnings to tweets or even — going a step further for users other than Trump — removes tweets, it can’t possibly violate the First Amendment, because it simply isn’t a governmental entity. You can love or hate how Twitter is regulating its own private platform — but you can’t call it a First Amendment violation.

Furthermore, when Twitter attaches a warning to a tweet, that constitutes speech of Twitter’s own, which is generally protected under the First Amendment from governmental censorship. Far from violating the First Amendment by speaking on top of Trump’s own speech, Twitter was exercising its First Amendment rights.

Here’s the irony: While Twitter isn’t using its platform to violate the First Amendment, Trump is. That’s not just our view; it’s what a federal appeals court held in a landmark decision last year. The court ruled that Trump was violating the First Amendment by blocking on Twitter those whose views he disliked. It is long-standing constitutional law that, when a government actor such as Trump creates a public forum in which different views are encouraged to be shared, the government can’t then pick and choose which voices to permit and which to silence. That’s what the court found Trump did, holding that, having used his @realDonaldTrump Twitter account as an official governmental public forum, Trump couldn’t then selectively censor his critics.

But it isn’t just that Trump is already committing the very violation of which he’s accusing Twitter: Astonishingly, Trump is now raising the possibility of aggravating his First Amendment offense by adding another. Apparently so outraged by Twitter’s accurately questioning his inaccurate tweets, Trump denounced social media platforms that “totally silence conservative voices” and threatened to “strongly regulate, or close them down.”

For Trump to do so would be an obvious First Amendment violation of its own. No matter what one thinks of Twitter, operating a social media platform that hosts a wide array of speech is, itself, a form of expression protected under the First Amendment. Just as Trump can’t shut down a newspaper because he doesn’t like one of its articles, he can’t close down Twitter — let alone all of social media — because he doesn’t like a warning affixed to a couple of his tweets.
Some of Trump’s congressional allies are echoing his threat in ways that also misapprehend the relevant law. Florida Sen. Marco Rubio took to Twitter to say that if social media companies exercise some “editorial role like a publisher,” they should no longer receive the protections from liability afforded them under federal law.

Rubio fundamentally misunderstands the law and, in particular, Section 230 of the Communications Decency Act. Section 230 was passed precisely to provide social media companies with the flexibility to regulate content on their platforms responsibly, even as they played a very different role from that of traditional publishers because social media companies don’t scrutinize content before it is uploaded to their platforms.

In other words, Section 230 was meant to incentivize companies like Twitter to do exactly what the company just did in experimenting with a new way of moderating Trump’s relentlessly false tweets. There are thoughtful arguments for and against Section 230 in its current form, but it makes no sense to suggest that social media platforms should lose Section 230’s protections for exercising the type of content moderation that the provision was intended to facilitate.

All told, Trump is doubly wrong in his assault on Twitter. Whatever one thinks of how the company is handling the president, there is simply no legal basis for how he is handling Twitter.

 

[Josiah]

What Trump says and tweets often disappoints me, sometimes offends or horrifies me. Now, as a businessman myself, I think I "get" what he does.... his "good guy" "like him" stuff and his state high and negotiate from there. I 'get' it but I find it quite inappropriate for the leader of the most powerful nation on the planet; just often strikes me as very unprofessional.

BUT I honestly don't care all that much. I'm really quite sick of politicians to SPEAK well and do the opposite (or perhaps nothing). Words aren't my focus, action and results are. As I look over the past 3 years, there seems to much good (whether directly to his credit or he simply is the man in office when good happens). I look at the peace in the world, the INCREDIBLE economy until a pandemic struck (sorry Democrats, Trump did NOT cause the pandemic), above all his court appointments and much else.

I didn't vote for him in 2016 (I didn't vote for anyone at the top of the ticket)... I MIGHT in 2020...... I can assure you I will NOT vote for Biden.



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[NewCreation435]

Trump's problem is that though he is President he often acts like the victim when he is not a victim at all.

 

[tango]

What's the source of the article in the OP?

 

[JRT]

What's the source of the article in the OP?

Oops, sorry. It is from the Washington Post. The authors are both constitutional lawyers.

 

[tango]

Oops, sorry. It is from the Washington Post. The authors are both constitutional lawyers.

That doesn't surprise me given the overall tone of the article, although it's hard to argue with the points relating to the First Amendment. I'm not rabidly anti-Trump the way the Washington Post seems to be lately, but struggle to see merit in an attempt to silence a platform based on disliking what it says.

I can't help wondering whether there will be a day of reckoning in which social media platforms will be treated more like regular media platforms, even if only in the form of some kind of regulation being applied to what is done in the name of the platform, but that's a totally separate matter.

 

[psalms 91]

Trump needs fact checked all the time so I dont think he should try to regulate facts. Just another tremper tantrum by this 5 year old

 

[Andrew]

Trump could do without Twitter, I typically cringe at just about everything he tweets because if it really is him I don't like the fact that it's distracting not only himself but a good part of the nation as well

I support the president but not his addiction to Twitter

 

[Naiwen]

I read his tweets daily and have my fun with it.

 

[Josiah]

I read his tweets daily and have my fun with it.

I rather like that approach.... I think too often people get all in a twitter (sic) over MUCH in politics...

In my former life, I traveled abroad at times and I found that some Europeans consider American politics GREAT entertainment, you just can't make this stuff up, entertaining on ALL sides, from ALL directions. We Americans are too involved, too intertwined to see the absurdity (and sometimes just plan immaturity) of it. Who was it that said "Democracy is a joke, but it's the best we've got."



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[hedrick]

We really do need fact checking. Even Republicans know that foreign countries are using social media to spread lies. I think fact checking Trump is unnecessary. His fans know he lies and don’t care, so the checks won’t do anything. But if checks are done, they need to be done consistently, so he will get caught up in it.

 

[JRT]

We really do need fact checking. Even Republicans know that foreign countries are using social media to spread lies. I think fact checking Trump is unnecessary. His fans know he lies and don’t care, so the checks won’t do anything. But if checks are done, they need to be done consistently, so he will get caught up in it.

A very large number of his fans are evangelical Christians. They too seem to care neither about his lies nor about his very questionable moral character be it past or present. I am a Christian too but I am frustrated by their political brainwashing which is seemingly so powerful that it over-rules Christian ethical standards. What does it take?

 

[tango]

We really do need fact checking. Even Republicans know that foreign countries are using social media to spread lies. I think fact checking Trump is unnecessary. His fans know he lies and don’t care, so the checks won’t do anything. But if checks are done, they need to be done consistently, so he will get caught up in it.

Zuckerberg doesn't think social networks should be doing it, for what that's worth...

Mark Zuckerberg says social networks should not be fact-checking political speech

Facebook CEO tells CNBC's Andrew Ross Sorkin, "Political speech is one of the most sensitive parts in a democracy, and people should be able to see what politicians say."

www.cnbc.com

 

[hedrick]

I think Zuckerberg may be specifically talking about people in office, not every posting with political implications.

 

[tango]

I think Zuckerberg may be specifically talking about people in office, not every posting with political implications.

Sure, we are talking about Donald Trump here.

 

[Josiah]

I wonder who is fact checking these fact checkers? Are they accountable or just posters? What assurance do we have that the fact checkers are unbiased and accurate?


IMO, Facebook and Twitter are not places for discussion or questions, they are places where people can SHOUT their views in a largely unaccountable way (and it's better if it seems cute or clever) - and the more forceful, the more rude the better (a few 4 letter words helps and name calling is largely essential). It's about SHOUTING something. You can post "right on, bro" and that's okay. You can counter it and thus be regarded as an ignorant, hateful, stupid person to be attacked but there's RARELY any discussion. These social media sites too often are all about dividing and radicalizing. But there there are the "my cat did something funny" posts and the "ain't my grandson cute" ones.... harmless (but often irrelevant to all but one's circle of friends).




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[tango]

Reading a little about what Trump is trying to do from the perspective of sources less rabidly anti-Trump than the Washington Post, I'm wondering about a sense of balance as far as social media is concerned.

If social media sites are exempt from basic journalistic standards because they aren't posting something but merely providing a platform for the general public to post their thoughts that's one thing. The public might be uninformed, stupid, biased, whatever, but we all know that. I can see a potential issue if the site is posting something in an official capacity because that wouldn't count as a user posting. If the Twitter user @JoePublic posts something then it's not entirely unreasonable for Twitter to be absolved from responsibility if @JoePublic turns out to be posting the most outlandish conspiracy theory out there. If Twitter posts something in an official capacity then logically it can't claim to be merely providing a platform for users.

If Twitter posts something that's essentially an op-ed piece it would seem that should be covered by 1A protections but if it is presenting something as a statement of fact it doesn't seem unreasonable for them to be held accountable for ensuring it is factual.

 

[hedrick]

Reading a little about what Trump is trying to do from the perspective of sources less rabidly anti-Trump than the Washington Post, I'm wondering about a sense of balance as far as social media is concerned.

If social media sites are exempt from basic journalistic standards because they aren't posting something but merely providing a platform for the general public to post their thoughts that's one thing. The public might be uninformed, stupid, biased, whatever, but we all know that. I can see a potential issue if the site is posting something in an official capacity because that wouldn't count as a user posting. If the Twitter user @JoePublic posts something then it's not entirely unreasonable for Twitter to be absolved from responsibility if @JoePublic turns out to be posting the most outlandish conspiracy theory out there. If Twitter posts something in an official capacity then logically it can't claim to be merely providing a platform for users.

If Twitter posts something that's essentially an op-ed piece it would seem that should be covered by 1A protections but if it is presenting something as a statement of fact it doesn't seem unreasonable for them to be held accountable for ensuring it is factual.

Absolutely. Op eds are different. But it turns out that the act actually has provisions specfically intended to allow companies to drop things that advocate violence and do something about obvious lies. So constitutional experts are saying that Trump is wrong that Twitter is violating any law. Of course Trump's justice department is likely to pursue whatever he tells them to, but we'll hope that courts are still competent. (How long that will remain true is questionable.)

Generally social media they haven't been reacting to things between individuals. On Facebook it's mostly been advertisements. I don't know what Twitter's policy is.

The problem is that "balance" may not be a sensible goal if some people tell more lies than others. I reject the idea that truth depends upon your political party. There are things that are simply false, or at least conspiracy theory. Obviously anyone who gets labelled is going to claim that the press is against him, but that doesn't mean it's true.

There's way too much postmodernisn in the modern Republican party. There are many issues where you can actually determine what's right and wrong. A couple of decades things were different. I voted Republican until recently. But at this point, balance isn't a sensible position.

 

[tango]

Absolutely. Op eds are different. But it turns out that the act actually has provisions specfically intended to allow companies to drop things that advocate violence and do something about obvious lies. So constitutional experts are saying that Trump is wrong that Twitter is violating any law. Of course Trump's justice department is likely to pursue whatever he tells them to, but we'll hope that courts are still competent. (How long that will remain true is questionable.)

Dropping things that clearly advocate violence certainly seems like fair game, although the way some (generally on the left) refer to all sorts of things as "dog whistles" as if the entirety of the political opposition spoke in secret codes to get around political correctness means it's not always easy to tell whether something is advocating violence or simply interpreted as some kind of "dog whistle" to advocate something any normal person would struggle to conclude.

The problem is that "balance" may not be a sensible goal if some people tell more lies than others. I reject the idea that truth depends upon your political party. There are things that are simply false, or at least conspiracy theory. Obviously anyone who gets labelled is going to claim that the press is against him, but that doesn't mean it's true.

I don't believe that truth is variable depending on which way you vote either. That said it's not as if one side is a source of endless lies while the other side is a paragon of virtue and doesn't even trim corners from the truth.

On the topic that seems to have kicked all this off, the issue of whether postal voting is vulnerable to fraud, it's hard to see how letting people mail in votes with no verification that the person named actually ticked the box does anything other than increase the likelihood of fraud. Throw in the possibility of the postal service losing votes and the question of who counts the votes and it's certainly something it's reasonable to be concerned about.

There's way too much postmodernisn in the modern Republican party. There are many issues where you can actually determine what's right and wrong. A couple of decades things were different. I voted Republican until recently. But at this point, balance isn't a sensible position.

It seems to me that both sides play fast and loose with the truth these days. I'm sure there's a reason for the saying you can tell when a politician is lying, because his lips are moving. It seems like just another reason to take power away from government and give it back to the people.

 

[psalms 91]

Bottom line is that Trump needs fact checked, his own words prove that, how many times has he lied or said something completely untrue since being in office?