Twitter versus Trump versus the First Amendment

In any other context, the President of the United States indulging in conspiracy theories about the explained accidental death of a young political intern in Florida two decades ago — and casting serious aspersions about who may have been involved — would be a non-stop story on cable television, in newspapers, and on the internet the world over.

But, this being 2020, it has been drowned out by the fight the President is now picking with his own gigantic soapbox — the social media platform Twitter — over it labeling as misleading two more mundane tweets of his about the validity of voting by mail.

This is significant for more than one reason. First, it signals Twitter is willing to play a more active role as gatekeeper to all of the tweets sent daily by its more than 320 million active users. Second, it calls into question the role of the First Amendment and whether social media platforms are responsible for the content shared on them.

Is it protected free speech for the President to claim on a platform owned and operated in the free market that voting by mail is inherently riddled with fraud? Or when he demands a former Republican Congressman-turned media rival should be investigated in a case closed by authorities nearly 20 years ago?

The intern worked for Joe Scarborough, the MSNBC host who served as a Florida congressman in the late 90s and early 2000s and who has become a fierce critic of the President. Lori Klausutis died in a Florida congressional office after business hours one evening while Scarborough was in Washington when she collapsed and hit her head. Foul play was ruled out.

Now, Mrs. Klausutis’ widower has petitioned Twitter founder and CEO Jack Dorsey to remove numerous tweets the President has sent in recent weeks that try to raise doubts about the circumstances of the woman’s death and who may have been involved.

“When will they open a Cold Case on the Psycho Joe Scarborough matter in Florida. Did he get away with murder?” President Trump tweeted May 12.

They’re reckless comments. Abhorrent, really. Even usually staunch conservative media allies at the New York Post, Wall Street Journal, and Washington Examiner agree.

Dorsey, meanwhile, has indicated the site will not remove the posts.

If Twitter is willing to call out the President’s tweets about the validity of mail-in voting (a process, incidentally, by which he himself cast his ballot in this year’s Florida primary and through which his current press secretary has voted 10 times in the last 11 years) should they acquiesce to the plaintive calls of a spouse and family whose wounds have been torn fresh?

Kara Swisher, a technology columnist for The New York Times, suggests they should.

“The real issue is the very serious collateral damage of this fight, which is the post-mortem libel of Ms. Klausutis and the ensuing suffering of her husband and family,” Swisher wrote in a column published May 26. “They are the victims, of Mr. Trump and of Twitter’s inability to manage its troubled relationship with him.”

Swisher’s wrong in calling it libel (There is no libeling the dead; Joe Scarborough is another matter, though), but there is no denying Mrs. Klausutis’ family has been wounded by what is a stunning political assault even by the high bar President Trump sets for that measurement.

Is Twitter willing to play the role of a more hardened gatekeeper? It looks that way after it on Friday flagged a Trump tweet about “shooting” looters in Minneapolis as a violation of its terms of service.

Newspaper editors have for decades weighed the delicate issue of whether the public has the right to air grievances in the form of published letters. And they do deny letter-writers the opportunity if their comments are deemed libelous, or too incendiary or vile.

A newspaper, as a free and private enterprise, cannot be compelled to publish any content under any circumstance. Twitter is no different really. But it is in regard to being held responsible for what its users publish. The Communications Decency Act affords internet sites mighty shields that broadly protect them from liability. The war the President seeks over Twitter wading into the waters of fact-checking has the potential to upend that.

The explosive growth and popularity of social media over the past decade has without doubt raised the stakes in this battle between President Trump and Twitter, but his latest volley — the issuance of a dubious executive order to penalize the company and its kin for how they police content — is unconstitutional. And leaves us with more questions.

Should Twitter ban Trump? Of course not, even though they’d be within their right to do it.

Should it answer his more spurious posts with fact checks? That’s the company’s call, and there is a compelling case for it.

Should Trump simply give us all a break and stop posting false claims simply for the sake of being cruel?

If only.