Having been fact-checked and found wanting by Twitter, an incensed Trump, like the study in irony he is, tweeted his outrage threatening to “strongly regulate” or “close down” social media platforms, and railed, “clean up your act, NOW!!!”
The top White House man accused Twitter — again, via a tweet — that the microblogging platform was “interfering in the 2020 Presidential Election” and was “completely stifling FREE SPEECH.” Apparently, by “free speech”, he meant the freedom to state unverified claims as “facts” — a practice he seems to have been referring to all this while as “Fake News”. Or maybe by that expression he meant those facts, no matter how accurate, that did not meet his ready approval.
Twitter seems to have merely made a shift from the “neutral” stance that social media platforms, including Twitter, in general, have hitherto taken to being a sentinel against disinformation, starting March 5, 2020, when the change to Twitter Rules directed against “synthetic or manipulate media” by incorporating a process to ascertain “whether media have been significantly and deceptively altered or fabricated” came into force, having been notified a month earlier, on April 24, 2020.
Watch: The Trump Twitter Row
Get the facts right
On May 26, 2020, under the new rules, Twitter displayed “get the facts about mail-in ballots” under Donald Trump’s tweets claiming there was “NO WAY (ZERO!) that Mail-In Ballots will be anything less than substantially fraudulent. Mailboxes will be robbed, ballots will be forged & even illegally printed out & fraudulently signed”, an unsubstantiated and potentially misleading claim, which fact Twitter highlighted by attaching additional information about mail-in ballots that contradicted the claims made in Trump’s tweets.
The link appended by Twitter takes one to a Twitter page with a “What you need to know” section, which says that Trump’s claim that “mail-in ballots would lead to a rigged election” was not grounded in facts because “fact-checkers say there is no evidence that mail-in ballots are linked to voter fraud”. The same page also contradicts Trump’s assertion made in the same tweets that “anyone living in the state, no matter who they are or how they got there,” and points out that “only registered voters will receive ballots”.
Having his lies – or anything else he says, for that matter – questioned, has always been unacceptable to Trump.
Unsurprisingly, Trump flew off the handle at Twitter’s unacceptable audacity and fired the Executive Order (EO).
Trump’s Executive Order
On May 28, 2020, Trump issued an Executive Order (EO) on “preventing online censorship” directing the Secretary of Commerce to petition the Federal Communications Commission (FCC) “in consultation with the Attorney General” and “acting through the National Telecommunications and Information Administration (NTIA)” to seek clarification regarding the protection extended by Section 230 of the Communications Decency Act (CDA) of 1996, which was enacted primarily against internet pornography.
Most of the “anti-indecency” provisions of the enactment were found in breach of the First Amendment rights and thrown out by the Supreme Court by a 1997 ruling in Reno v. American Civil Liberties Union, 521 U.S. 844 (1997).
However, Section 230 of the CDA remains in force and continues to extend protection to the internet platforms such as the social media websites against lawsuits for the content posted/published by the third parties, as Section 230 (c)(1) mandates that the “provider or user of an interactive computer service” shall not be “treated as the publisher or speaker of any information provided by another information content provider.”
Trump has essentially attacked the protection by seeking clarification of the FCC with regard to the extent of protection under Section 230 (c) (1). He wants the FCC to particularly “clarify and determine the circumstances under which a provider of an interactive computer service that restricts access to content in a manner not specifically protected by subparagraph (c)(2)(A) may also not be able to claim protection under subparagraph (c)(1)”.
What Trump intends?
Trump is questioning the right of the provider of an interactive computer service to claim protection under Section Section 230 if it “restricts access to content in a manner not specifically protected” under the provision. Simply put, he is asking if Twitter “restricts access” to a content posted by someone except on the grounds available under Section 230 itself, why should it not bear the same liability as any other “publisher”?
No matter how that question is answered, those tweets by Trump remain labeled because the “access” to them has not been “restricted” in any manner whatsoever.
There is just some additional information added to it. Besides, Section 230 (c)(2)(A) protects the service provider for restricting access in good faith if “the provider or user considers” the material posted “to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected”, and Trump would do well to consider the expression “otherwise objectionable”, which blatant lies that could confuse the voters in an election year certainly are. So, even if access to Trump’s tweets were actually restricted, the restriction would still have been legally above board.
Ironically, if the social media sites are actually deemed publishers and are held responsible for what is posted by third party users, they would obviously get more stringent about what is published, which certainly wouldn’t be in the best interest of free speech, the cause of which Trump has so grandly espoused in the Executive Order.
Lack of competence
Besides, regardless of the Executive Order and the threatening tweets, Trump does not have the constitutional competence to reinterpret Section 230, which is the preserve of the constitutional courts; or repurpose the provision, it being a congressional prerogative, as several lawyers and other experts have been quick to point out.
In terms of impact, Trump’s threat of “regulation” doesn’t seem to have had the desired dampening effect, for on May 29, 2020, an undeterred Twitter went ahead and masked Two of Trump’s tweets with a notice saying the tweets “violated the Twitter Rules about glorifying violence” although the microblogging site allowed access to the tweets, having “determined that it may be in the public interest for the tweets to remain accessible”. The tweets seem to endorse shooting at the protesters demonstrating against the killing of a black man, George Floyd, by a white policeman in Minneapolis. “When the looting starts, the shooting starts,” the President had tweeted.
With Trump threatening to do what he is not empowered to do under the constitution and his threats to “strongly regulate” making no real difference, the Executive Order seems to be getting only as much attention as a childish tantrum like that deserves; or maybe just a little more.