(Photo by Chip Somodevilla/Getty Images)
Barring some crazy turn of events, Donald Trump is about to introduce an executive order that launches an assault on Section 230 of the Communications Decency Act in a bid to stick it to Twitter — ironically the President’s most powerful political tool — for having the gall to label his tweets as misleading even though there is very little argument that the tweets in question were, in fact, lies. If ever there was an “Emperor Wears No Clothes” moment, this is it, and Twitter is about to be lambasted for having eyes.
Section 230, as a refresher, is the provision that allows Facebook to not get sued immediately when someone hops on and libelously explains that their neighbor is a pedophile. The neighbor has a defamation claim against the user, but not Facebook assuming Facebook at least tries to stay on top of bad conduct. We don’t expect Facebook to moderate every comment and certainly not every comment posted in real time, so they get a break as long as they can demonstrate that they made a good faith effort to keep that content off their platform.
Twitter didn’t remove Trump’s false tweets; it merely flagged them as misleading, a step it took in its effort to act in good faith. But that’s enough for Trump to get in a huff, so there’s an order in the works. Here’s what the order will purportedly attempt to do according to CNN, who claims to have seen a draft:
* The Federal Communications Commission will be asked for new regulations clarifying when a company’s conduct might violate the good faith provisions of Section 230 with an eye toward making it easier for tech companies to be sued.
* The Justice Department will consult with state attorneys general on allegations of anti-conservative bias.
* It bans federal agencies from advertising on platforms that have allegedly violated Section 230’s good-faith principles.
* Direct the Federal Trade Commission to report on complaints about political bias collected by the White House and to consider bringing lawsuits against companies accused of violating the administration’s interpretation of Section 230.
The legality of this order is… suspect. Presidents can’t willy-nilly overturn acts of Congress that they don’t like and they can’t tell the Federal Trade Commission to do anything, but the Trump administration’s vision of constitutional power is guided by the scholarly maxim “you miss 100 percent of the shots you don’t take.”
And Republicans in the legislature are working on a bill to strip Twitter of its Section 230 protections entirely arguing that correcting a lie robs the site of its status as a neutral platform, which is not something Section 230 requires. As a technical matter, the provision states:
No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.
So Twitter can’t be sued because of something an idiot — in this case, the President — posts. But that’s the floor, not the ceiling, of Twitter’s options. It can more or less do whatever the hell it wants with what people put on its private forum. Which is why none of this is really a Section 230 issue. This is more akin to cutting off Michigan’s emergency aid because the White House is mad about absentee ballots — which only a complete dumbass would think is legal. Trump’s mad at Twitter’s private speech and, since he can’t ban that, he’s lashing out by trying to take away the legal shield that allows Twitter to exist at all.
As one might expect, the backlash is mounting as Trump’s critics rally behind the social media companies that he’s attacking. Without robust Section 230 protections from a hail of lawsuits — in this case alleging “anti-conservative bias” for pointing out that elections are held on Tuesdays — social media can’t function. Becoming a wholly unmoderated message board would nuke their appeal quickly and the center could never hold if they begin shifting algorithms to please whomever occupies the White House.
Twitter’s effort to highlight that Trump was lying in an effort to suppress the vote was the right move. Not because it needed to get out of a lawsuit, but to avoid sinking into the irrelevancy of a Nazi subreddit. And Twitter has definitely flirted with becoming that in the past and it was market pressure that turned them around. The invisible hand of corporate credibility may not provide perfect solutions, but it’s a better watchdog than exposing social media to arbitrary “good faith” reinterpretations dictated by Bill Barr.
Unfortunately, when November rolls around, the only realistic choice for these critics to coalesce around is… this guy:
“The idea that it’s a tech company is that Section 230 should be revoked, immediately should be revoked, number one.”
Cue the sad trombone.
Yes, the Democratic Party went out of its way to nominate a guy who incapable of credibly challenging Trump’s latest broad assault on the First Amendment. There’s a strain of liberal talking head that bemoan “both-sideism” as if it’s per se vicious slander, but while there are some egregious “apples to oranges” attempts at both-sideism, more often than not the phenomenon is just the inevitable result of Republicans realizing that Democrats routinely refuse to strategize a coherent worldview beyond “x vs. not x.” That sets up a pretty simple model: Trump and his cronies abuse a system, wait until Democrats forge a ham-fisted solution, then immediately co-opt that solution and use it as a cudgel. Nuanced arguments like, “Section 230 remains, but require social media to deploy stronger moderation algorithms to stop people lying about specific legal requirements and deadlines in order to facilitate election fraud” can’t be seized upon as easily because they take the discussion out of the “two-sides of a coin” script, but alas, that’s not popular enough to win a Democratic primary. “Grrr, Trump lies on Twitter so Twitter bad!” is what wins on Super Tuesday.
So now the only protection Americans have from a broken internet is Mark Zuckerberg’s inherent likability.
We’re all doomed.
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.