Trump’s proposed order could harm one in particular: Himself
President Donald Trump, who built his political career on the power of a flame-throwing Twitter account, has now gone to war with Twitter, angered that it would presume to fact-check his messages. But the punishment he is threatening could force social media companies to crack down even more on customers just like Trump.
The executive order that Trump signed Thursday seeks to strip liability protection in certain cases for companies like Twitter, Google and Facebook for the content on their sites, meaning they could face legal jeopardy if they allowed false and defamatory posts. Without a liability shield, they presumably would have to be more aggressive about policing messages that press the boundaries — like the president’s.
That, of course, is not the outcome Trump wants. What he wants is to have the freedom to post anything he likes without the companies applying any judgment to his messages, as Twitter did this week when it began appending “get the facts” warnings to some of his false posts on voter fraud. Furious at what he called “censorship” — even though his messages were not in fact deleted — Trump is wielding the proposed executive order like a club to compel the company to back down.
It may not work even as intended. Plenty of lawyers quickly said Thursday that he was claiming power to do something he does not have the power to do by essentially revising the interpretation of Section 230 of the Communications Decency Act, the main law passed by Congress in 1996 to lay out the rules of the road for online media. Legal experts predicted such a move would be challenged and most likely struck down by the courts.
But the logic of Trump’s order is intriguing because it attacks the very legal provision that has allowed him such latitude to publish with impunity a whole host of inflammatory, harassing and factually distorted messages that a media provider might feel compelled to take down if it were forced into the role of a publisher that faced the risk of legal liability rather than a distributor that does not.
“Ironically, Donald Trump is a big beneficiary of Section 230,” said Kate Ruane, a senior legislative counsel for the American Civil Liberties Union, which instantly objected to the proposed order. “If platforms were not immune under the law, then they would not risk the legal liability that could come with hosting Donald Trump’s lies, defamation and threats.”
Trump has long posted false and disparaging messages to his 80 million followers on Twitter, disregarding complaints about their accuracy or fairness. In recent weeks, he has repeatedly issued tweets that essentially falsely accused Joe Scarborough, the MSNBC host, of murdering a staff member in 2001 when he was a congressman. Scarborough was 800 miles away at the time, and the police found no signs of foul play. The aide’s widower asked Twitter to delete the messages, but it refused.
Trump and his allies argue that social media companies have shown bias against conservatives and need to be reined in. While they are private firms rather than the government, the president and his allies argue that they have in effect become the public square envisioned by the founders when they drafted the First Amendment and therefore should not be weighing in on one side or the other.
“If @Twitter wants to editorialize & comment on users’ posts, it should be divested of its special status under federal law (Section 230) & forced to play by same rules as all other publishers,” Sen. Josh Hawley, R-Mo., who has vowed legislation on the matter, said this week on, yes, Twitter. “Fair is fair.”
The order that Trump signed said that an online provider that weighs in on some tweets beyond certain limited conditions “should properly lose the limited liability shield” of the law “and be exposed to liability like any traditional editor and publisher that is not an online provider.”
The order asks the Federal Communications Commission to draft regulations to that effect and directs the Federal Trade Commission to consider action against providers that “restrict speech in ways that do not align with those entities’ public representations about those practices.”