Trump’s Social Media Executive Order Is a Confession of His Ignorance
The president
doesn’t understand the Constitution he’s tasked with upholding, and we’re all
paying for it
By
With more than 100,000 Americans now dead from the coronavirus,
President Trump has spent this week doing what he does best — ignoring the
crisis and instead railing against invented demons. This week’s demon is Twitter,
the social media platform that the president normally uses to his great
advantage, peddling falsehoods and conspiracy theories to stoke right-wing
rage.
But on Tuesday, Twitter meagerly pushed back. After the president
claimed that mail-in ballots would lead to rampant fraud, Twitter labeled two of his tweets with
“Get the facts about mail-in ballots.” Following that link sent readers to
a CNN article that
tells the truth about mail-in voting — that election fraud is vanishingly rare.
Of course, this most modest form of fact-checking from Twitter
enraged the president. On Wednesday, he railed against censorship, threatened to shut down social media
platforms, and said that Twitter was stifling free
speech. And Thursday, the president followed through on one of
his Wednesday threats, signing an executive order that he claims will “fight online
censorship by tech corporations, including social media platforms.”
How to make sense of all of this, the president of the country with
the highest number of coronavirus deaths and cases (by many multitudes)
ignoring the tragedy and instead using his resources to pick a fight with the
social media platform that he himself uses as an essential part of rallying his
followers? Well, it’s hard to do so without understanding this central facet of
the Trump presidency: His bluster usually does nothing other than show that he
doesn’t understand how law or the Constitution works. Here, he has managed a
rare triple-axel of idiocy.
FIRST, THE CONSTITUTION. President Trump has
argued social media giants are violating basic free-speech principles. The
preamble to the executive order says as much, likening social media platforms
to the public square of days past. The order states that “when large, powerful
social media companies censor opinions with which they disagree, they exercise
a dangerous power.”
The order fundamentally misunderstands constitutional principles
of free speech. A basic rule of the Constitution is that, except for the
prohibition on slavery in the Thirteenth Amendment, the Constitution
prohibits only government actors from doing things, not private actors.
Twitter, as should be eminently clear, falls into the latter category. As a
private actor, no matter how important Twitter is to the president, other
politicians, and public discourse today, it is not bound by the First
Amendment.
What this means is that Twitter can censor any person or content
it wants without violating the First Amendment because only the
government can violate the First Amendment. (Whether it is good
business or good policy for Twitter to do so is an entirely different, but
nonconstitutional, question.) In fact, Twitter, as a private company, is protected by
the First Amendment. If Twitter wants to ban all Republicans, it can do so. If
it doesn’t want people named David who vote for liberals using its platform, it
can do that too. Twitter’s freedom to express itself however it wants —
including by putting a short little disclaimer after two of the president’s
tweets — is what the Constitution protects.
The irony here is that conservatives have been the ones
historically who have established these principles in American constitutional
law. It was conservative Supreme Court justices in the 1970s who ruled
that private shopping malls do
not have to allow anti-war protesters to speak on their property because the
malls are private businesses. Then, almost four decades later, it was a
different batch of conservative justices who ruled that private companies are people under the Constitution,
and have First Amendment rights of their own.
SECOND, HOW LAWS are made. The gist of
the executive order is that the president wants to change the interpretation
of Section 230 of the Communications Decency Act,
a 1996 federal law. That provision protects online platforms from liability for
content they host that is posted by others. So, for instance, back in 2016,
when I wrote on this site that it was time to
repeal the Second Amendment, I received a barrage of anti-Semitic hate via
email, Twitter, and this site’s comment section. One commenter posted a bizarre accusation against
me that in the 1980s (when I was a young teen), I burned down a house, killing
several people as a way to cover up a rape that I had committed. Thanks to
Section 230, Rolling Stone did not have to police the comment
section and could leave that comment on its site without fear that I would sue
them for libel for hosting this clearly defamatory statement.
Trump’s order says that this immunity will not apply to platforms
that “use their power over a vital means of communication to engage in
deceptive or pretextual actions stifling free and open debate by censoring
certain viewpoints.” Under Trump’s view of the world, conservative political
views are being stifled by Twitter and other social media platforms, so they
would lose this liability protection.
However, the president has no power to change federal law by
signing an executive order. That’s just not how law works in this country.
There have been almost 25 years of court cases interpreting Section 230. Those
decisions, and the text of the statute itself, control how this law applies. If
the president wants it changed, then he needs to do what anyone else has to do
to change a law — convince Congress to pass a new one.
It is true that the president can direct federal agencies to
interpret the law in this manner, and part of his order attempts to do just
that. The order tells the Federal Trade Commission and the Federal
Communications Commission that they are to interpret the law in this way. The
problem here is that both of these agencies are independent of the federal branch and
do not have to follow what the president says. Bottom line here
is that this directive is all bark, no bite.
Third, how Section 230 works. In the end, the irony of this
executive order is that President Trump is tilting at a windmill that helps him
and his cause. The reason that social media and other platforms allow the
president and his supporters to post blatant falsehoods, wild conspiracy theories,
and not-so-veiled death threats against
entire political parties is because of Section 230.
Take the most recent hubbub involving the
president and MSNBC host Joe Scarborough. Earlier this week,
Trump resurfaced a baseless allegation that Scarborough was responsible for the
murder of a staff member when Scarborough was a Republican congressman. The
murdered woman’s widower sent a letter to Twitter asking the company to take
down Trump’s tweets, but the site refused. While they may have legal claims against the
president himself, thanks to Section 230, Scarborough cannot sue
Twitter for hosting this defamatory tweet nor can the widower sue Twitter for
causing him emotional distress. This kind of immunity allows all kinds of conservative
rantings (and liberal ones too) to flourish online because
the host platforms don’t have to worry about them.
BY NO MEANS do I want to downplay the outrageousness here of
the president of the United States attempting to use his power to threaten
social media companies with censorship, especially when those companies take
the rare step of trying to check Trump’s excesses. However, it is important to
sort through the mess of this executive order to understand what’s really going
on here. And that is the same story that we have seen again and again — that the president is
completely clueless as to American law, especially basic constitutional law.
Normally, that’s an embarrassing tragedy for this country. But
when 100,000 people have died from a pandemic that is still raging across this
country and the president is focusing his energies on this fake censorship
nonsense, this tragedy is costing us all.
Cohen is a professor of law at the Drexel University Thomas R.
Kline School of Law.