President Donald Trump’s executive order on social media has left more questions than answers on the ability of the government to regulate companies like Twitter. However, one thing is abundantly clear: the loser in this fight will be free speech. Indeed, the striking thing about this controversy is neither the Democrats nor the Republicans are actually advocating for free speech, just different forms of speech controls. Civil libertarians are faced with the “choice” offered by Henry Ford on colors for the Model T Ford “any color … so long as it is black.” In some ways, Trump and Twitter are offering a similar choice on the new model for free speech: Americans can chose between government censorship and private censorship.
The heart of the executive order is Section 230 of the Communications Decency Act. The 1996 legislation signed into law by President Bill Clinton was largely an attempt to regulate pornography and struck down in significant part as unconstitutional. Section 230, however, survived and grants any “interactive computer service” (including Internet and social media companies) immunity from most lawsuits over content posted by users. Courts have interpreted the provision to give sweeping immunity for companies like Twitter and Facebook because they simply supply a forum for others to express themselves.
For years, Democrats leaders have called for companies like Facebook and Twitter to monitor and delete material that they deem offensive, false, or misleading. Former Vice President Joe Biden declared in January, “Section 230 should be revoked, immediately should be revoked, number one.” In his view, the mere fact that Twitter is allowing others to speak freely is the same as “propagating falsehoods they know to be false.”
Congressional leaders like House Intelligence Committee Chair Adam Schiff have called for labeling and removal of material with some members directly threatening a legislative crackdown. This week, Speaker Nancy Pelosi denounced Facebook CEO Mark Zuckerberg for resisting speech monitoring and censorship as a matter of free speech. Pelosi lashed out that those who want to preserve a free speech zone are “all about making money,” ignoring free speech advocates who have no financial interest in these companies. Pelosi said that opposing such monitoring means that social media companies simply want “to make money at the expense of the truth and the facts” and are trying to “hide under the freedom of speech.”
Where Democrats want to either remove all protections or force private censorship, Trump seems to want to control protections and create a system of government censorship. Again, the choice allows citizens to select any option so long as it is censorship.
The ‘Big Brother’ problem
There are ample reasons why the executive order is unlikely to succeed in any meaningful way. While the scope of Section 230 is largely the result of judicial interpretation, even judges who have criticized the sweeping immunity have concluded that it must be treated as the intent of Congress, which has done nothing to change it. If the administration seeks to change the scope of this law through agency action at the Federal Communications Commission, it will be immediately and legitimately challenged.
Any attempt to unilaterally alter such a federal law is precisely what Republicans objected to in the Obama administration, when the president repeatedly ordered changes denied by the legislative branch. Such circumvention was unconstitutional under Obama and it would be unconstitutional under Trump. President Trump has declared that he will also be seeking legislative changes, a move that could negate some constitutional challenges. However, the elimination of all protection through legislation (as demanded by Biden) would likely trigger greater limits on expression.
The executive order also empowers the Federal Trade Commission to investigate bias in companies like Twitter removing or labeling material. Such investigations may not in themselves be unlawful, but any action taken against companies for their policies on accuracy would raise serious questions of government censorship, the ultimate scourge under the First Amendment.
Ironically, Democrats now defending Twitter are some of the same members who were previously calling for a possible government crackdown. Moreover, these members have long opposed the concept of free speech protections for corporations, recognized in such cases as Citizen’s United. Nevertheless, they would be on good ground to oppose unilateral executive action despite their silence when President Obama engaged in the same circumvention of Congress in areas ranging from immigration to the environment.
The Little Brother problem
The First Amendment is designed to address government restrictions on free speech. As a private entity, Twitter is not the subject of that amendment. However, private companies can still destroy free speech through private censorship. It is called the “Little Brother problem.” President Trump can be chastised for converting a “Little Brother” into a “Big Brother” problem. However, that does alter the fundamental threat to free speech.
What Twitter did on the Trump tweets — adding fact checking links — was wrong. It was intervening on a political statement to inject its views into the communications between President Trump and his roughly 80 million followers. It is precisely what Democrats have demanded for years and what civil libertarians have vehemently opposed.
Twitter is demanding immunity under Section 230 because it merely supplies a forum for the discussion of others. However, it now wants to be an active part of that discussion. Many disagree on the subject of mail-in voting and its potential for fraud. The warnings posted by Twitter (and deletions demanded by Democrats) invites arbitrary and biased monitoring. Twitter has not posted such warnings on the many false statements made about the Russian investigation or the Steele Dossier or other subjects.
Much of our free speech today occurs on private sites like Twitter and Facebook. The Democrats want private companies to censor or label statements deemed misleading. Such a system would evade First Amendment conflict but it would have an even greater likely impact on free speech than direct government monitoring.
Social media has long been one of the few areas of free and robust speech. While Trump and his critics are now in a fierce battle over the Twitter controversy, it is largely a battle over control of speech, not a battle for free speech. What is striking is how we have all become chumps in rooting for one side or the other when both would curtail our ability to speak freely on social media. It is like being offered the Matrix choice of a blue and red pill, but both leave you in Matrix.
Reprinted with permission from JonathanTurley.org.