I’m not sure this is going to hold up in court, but I’m also not sure it isn’t.
The order Trump signed concerns Section 230 of the 1996 Communications Decency Act. The Executive Branch has always interpreted Section 230 as giving social media platforms almost unlimited latitude to police user content without having to worry about legal jeopardy.
But that was predicated on the idea that users had the freedom to express whatever viewpoints they wanted, and that the platforms would only police for things like obscenity, threats of violence and so forth. The game changed when the platforms made a common practice of banning conservative users for “violation of community standards,” and even more so whey they presumed to “fact-check” conservative points of view that really weren’t matters of fact.
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The fact that Twitter actually did it to Trump for the first time the other day is getting a lot of attention, but this has been bubbling up for a few years. Herman attended a meeting at the White House last year at which lots of conservatives shared their experiences being muzzled or reprimanded on social media. Trump has been considering action for some time, and yesterday he took it:
The draft order also lays groundwork for treating the platforms as places where individuals’ First Amendment rights should be protected, terming them “a 21st-century equivalent of the public square.”
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The draft order is far-reaching in scope, setting up multiple ways for the government to attack what the administration views as the problem of online censorship.
The most important way is by seeking to scale back the sweeping legal protections that Washington established for online platforms in the 1990s, in the internet’s early days. Those protections were created by Congress in Section 230 of the 1996 Communications Decency Act. That law gives online companies broad immunity from liability for their users’ actions, as well as wide latitude to police content on their sites.
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Contrary to speculation that Trump would try to “shut Twitter down,” he’s forcing Twitter to play by the rules that usually apply to an advocacy organization with a clear bias. If you’re going to provide a public forum in which everyone can express their opinions, that comes with one set of rules. What Twitter does (and Facebook to a lesser extent) is slap “fact-checks” on points of view they disagree with – often in an absurd fashion.
Twitter’s “fact-check” of Trump on Tuesday linked to a CNN article by the ridiculous Chris Cilizza, who is no more an “independent fact-checker” than sewer sludge is a tasty beverage. And yesterday, as Rob told you, we learned that Twitter’s so-called “head of site integrity” is a Trump-hating left-wing activist.
Fine. So Twitter is a left-wing web site. I think Facebook is a little more fair if only because Mark Zuckerberg is a much smarter businessman than Jack Dorsey could ever hope to be. But regardless, if you’re going to be an advocacy site, then you don’t deserve the same legal protections as those who are truly open public forums.
I’m not entirely sure the courts will see it that way, but either way it’s time to admit what Twitter is and stop pretending it’s fair, impartial or objective. Twitter can push its agenda all it wants, but it doesn’t deserve to be shielded from the law in the process.
