Edits on May 29, 2020 at 12:52 a.m. are limited to reflecting the language of the actual executive order released by the Trump administration, which materially tracks the leaked draft and adding a concession that the proposals by the Trump administration are preliminary requests that certain agencies study the issues described in the executive order.
Buckle up, this one’s a doozie.
For the first time ever, Twitter went out of its way to fact-check one of President Trump’s tweets. Little did Twitter know that this seemingly innocuous event would set in motion a tsunami barreling towards social media platforms.
It started when President Trump took aim at the idea of allowing for mail-in ballots in the upcoming Presidential election. In response, Twitter tagged on a link to the end of the President’s tweet, telling readers to “[g]et the facts about mail-in ballots,” which would lead readers to a page noting that President Trump “falsely claimed that mail-in ballots would lead to a ‘Rigged Election.’”
In response to Twitter’s post, President Trump accused Twitter of “interfering” in the 2020 election, claiming that Twitter was “stifling FREE SPEECH” and implying that President Trump would take action against Twitter.
The next day, President Trump broadened his attack to social media platforms more generally, commenting that Republican voices were being stifled and threatening regulation or closure of these platforms.
This all culminated with President Trump threatening to issue an executive order concerning social media companies. A draft of that executive order was leaked on May 27 and is available here. At 8:38 p.m. on May 28, President Trump released via Twitter a legitimate version of the executive order. Here’s a clip.
The text of the executive calls for the Federal Communications Commission (the “FCC”) to review and define the boundaries of a law from 1996—the Communications Decency Act (the “CDA”)—which provides social media companies with protection from certain lawsuits, like defamation, by making clear that these providers are not “publishers” of the content on their websites and that the social media companies are permitted to—in good faith—scrub “objectionable” material from their websites. Specifically, the executive order calls on the FCC to clarify:
the circumstances under which a provider of an interactive computer service that restricts access to content in a manner not specifically protected by [the CDA] may also not be able to claim protection under [the CDA], which merely states that a provider shall not be treated as a publisher or speaker for making third-party content available and does not address the provider’s responsibility for its own editorial decisions;
The conditions under which an action restricting access to or availability of material is not “taken in good faith” within the meaning of [the CDA], particularly whether actions can be “taken in good faith” if they are:
deceptive, pretextual, or inconsistent with a provider’s terms or service; or
taken after failing to provide adequate notice, reasoned explanation, or a meaningful opportunity to be heard; and
Any other proposed regulations that the [National Telecommunications and Information Administration] concludes may be appropriate to advance the policy described in [the CDA].
Also, the executive order calls for (1) federal agencies to reconsider spending money on marketing and advertising paid to social media companies, (2) the Federal Trade Commission to consider taking action to prohibit unfair or deceptive acts or practices in or affecting commerce, including when social media companies restrict speech in ways that does not align with their terms of service, (3) state Attorneys General to establish working groups regarding the potential enforcement of state statutes that prohibit online platforms from engaging in unfair and deceptive practices.
Drama aside, there’s a lot to unpack here. This exchange raises a lot of questions about the power of the President to regulate social media companies specifically and free speech broadly. It’s important to understand the role of the President and the government’s power to regulate companies and free speech so folks aren’t worried or misinformed when soundbites like these float around. Off the top of my head, here are some questions I’m left with:
With respect to Trump’s claim that Twitter is stifling free speech, is there an argument to be made that Twitter is violating the Constitution? Does the Constitution even apply to Twitter? Is Twitter violating any other law?
Would President Trump’s attempt to regulate social media companies or users’ speech amount to a constitutional violation? What about the current executive order?
Let’s talk about them. As a quick caveat, First Amendment jurisprudence is deep and rich, and I definitely don’t have the time nor the attention span to dive into all the details, so what I’m going to provide below is a rudimentary analysis after a day or two of research.
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This one’s a little long, so I’ve provided a summary below.
TL;DR—Under the First Amendment, Twitter and other social media platforms are more-or-less immune from government action that tries to regulate the content of its speech, including Twitter’s ability to censor whatever content it wants or provide fact checks. Moreover, Twitter can’t be sued for defamation or similar claims because of special statutes protecting social media platforms (namely, the CDA). President Trump may be able to issue executive orders asking regulators to carefully define the boundaries of the CDA in an attempt to limit the protections it gives to social media companies. It is less clear whether he can try to get regulators to hold social media companies accountable for unfair or deceptive practices.
Twitter & the Constitution
One of Trump’s complaints is that Twitter is “stifling” free speech. This raises the question: can Twitter stifle free speech? Also, does the Constitution even apply to Twitter?
A good place to start is with the First Amendment. In full, the First Amendment provides:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. (emphasis added)
Around the 1920’s up and through the 1940’s, United States courts have interpreted the First Amendment to apply to more government entities than just Congress. Now, First Amendment prohibitions apply to all government actors, including federal, state, and local, and legislative, executive, or judicial. Importantly, First Amendment prohibitions apply only to government actors—not private citizens/actors. In other words, if you’re not the state, you can tell someone to shut up and they can’t tell you you’re violating their constitutional rights (with very limited exceptions). Here’s a nifty primer if you want to read more.
Twitter is not a government actor. It is neither owned/controlled by the government, nor is it sufficiently “entangled” with the government, or doing things that are sufficiently government-like in nature, that we might say it is the “functional equivalent” of a government actor and that the Constitution applies to it. It takes a lot more than just being “open to the public” to be called a state actor. This means that the Constitution’s prohibitions against abridging free speech/press simply do not apply to Twitter.
What are the ramifications of the First Amendment not applying to Twitter? Well, quite simply, Twitter can tell you to shut up and you can’t tell refuse. You also can’t sue Twitter because you’re upset that you were told to shut up. Twitter can ban accounts, censor ideas, and wholly-block certain types of speech if it wanted to, including that of government leaders. Twitter can loosely bind itself to its own rules and regulations just to show that it has a standard that it attempts to live up to, but that’s really it.
Courts have largely supported this interpretation of Twitter’s and other platforms’ power, shooting down lawsuits that challenge their ability to regulate speech based on Constitutional grounds. Even when challengers bring claims that social media platforms are violating statutes that prohibit the regulation of speech—rather than the Constitution—courts have concluded that the CDA protects Twitter in its decisions to pick-and-choose what it wants to censor—including from lawsuits for defamation. As mentioned briefly above, the CDA offers broad immunity to “interactive computer service” providers from civil liability on account of actions taken in good faith to restrict the “access to or availability of” objectionable materials. Find out more here.
This was a long-winded way of saying that Twitter can censor whatever it wants. Also, Twitter doesn’t have to listen to anyone other than Twitter with respect to censorship issues.
Trump & the Constitution
Okay, so Twitter can’t be sued for censoring speech. Still, the question remains: can President Trump do anything to censor or regulate Twitter? This question really has two layers—first, can the President censor individuals that tweet? Second, can the President censor Twitter, the entity?
With respect to the first question—whether the President can censor or regulate individual’s speech—I more-or-less covered this issue in the previous Part. As mentioned above, the government (which very much so includes the President), cannot take actions that abridge freedom of speech/press. So, unlike Twitter, the President CAN’T tell you to shut up. There are limits, however, that I think are worth talking about.
First and foremost, no rights that are afforded protection under the Constitution are absolute. It’s not the case that the government can’t abridge you’re freedom of speech—it’s the case that the government can’t abridge your speech without a good enough reason. Think about people forming riots or shouting “FIRE!” in a movie theater, or even direct threats. These are all forms of speech—but they’re all also illegal. All rights, even those set forth in the Constitution, are subject to a balancing test. And, depending on how important that right is and how ‘valuable’ the content of the speech is, it becomes more and more difficult for the government to win that balancing test. Generally, in the case of the government regulating the content of your speech, the government is subject to the most difficult standard of all: proving that a restriction of your speech is necessary (narrowly tailored) to achieve come compelling governmental interest. That is, unless such speech is considered to fall within a category of ‘low value’ speech, then the government will have a much easier burden to meet in order to regulate the content of that speech. For example, defamatory statements, threats, obscenity, child pornography, and commercial advertising have all been viewed by courts—in one way or another—as having relatively ‘low’ value and thus can be regulated and even prohibited. In effect, President Trump could only censor an individual’s speech under very limited and tough-to-win circumstances, unless that speech is of ‘low value.’
It’s a much more complicated (and arguably more fun) question to ask what President Trump can do to regulate Twitter. As we mentioned above, currently, Twitter is pretty much protected from all sides. Not only is Twitter protected as much as an individual would be with respect to free speech, but Twitter also has the added layer of protections granted under the CDA against lawsuits like defamation. Does that mean President Trump is without ammunition?
Well, interestingly, no. As I mentioned above, President Trump issued an executive order that concerns social media companies. Believe it or not, I think it’s at least moderately possible (~35-40% chance?) that he can do this.
Basically, President Trump is asking:
the FCC to evaluate and interpret the scope the protections afforded to social medial companies by the CDA, and
the FTC to evaluate whether social media companies should be held accountable for unfair or deceptive acts or practices in or affecting commerce.
As an important first point, notice how these requests are not directly regulating the content of the speech of social media companies. At the same time, though, President Trump is holding social media companies’ feet to the fire with respect to the lesser valued types of speech that we mentioned before (e.g., defamation or deceptive speech), which arguably is an easier burden for him to meet.
Put differently, President Trump isn’t saying that companies must publish such and such or must stop removing certain content. Rather, he’s calling upon regulators to enforce the laws in a certain way (assuming the regulators decide to take action after they’ve studied the issues per the executive order’s request). Arguably, this is within his power—he is the chief executive, it is the chief executive’s job to enforce the laws, and he’s issuing an executive order for agencies under his control to enforce certain laws in certain ways. It all makes sense from a high-level, but the details are where things get a little tricky, which is why I say that President Trump’s plan is possible, not probable.
One of the reason’s I suspect President Trump might lose is that there’s an argument to be made that, with respect to (1) above, President Trump is asking the FCC (at the very least, implicitly) to regulate the CDA out of existence, which might not be within the authority of the President or the FCC (I’m honestly not sure, but it smacks of the kind of thing that’s squarely within Congress’ purview and not in the President’s).
Another thing I’m not sure about is whether the CDA even provides the FCC with the authority to opine (with a binding, legal effect) on whether a restriction was made “in good faith.” In other words, it’s highly possible that President Trump is asking the FCC to do something that it simply was not given the power to do. The only way the FCC would have that power would be if the Congress gave it that power by statute. But maybe I’m missing something here?
Another reason President Trump might lose a legal challenge to his executive order is has less to do with speech and more to do with what social media companies actually do. It involves (2) above—whether President Trump can hold social media companies accountable for unfair or deceptive acts or practices in or affecting commerce. Check this out:
Social media companies seem to be dependent on ordinary commercial transactions, the regulation of which is presumed constitutional. But the exchange underlying social media is not an ordinary commercial transaction. Individuals use social media for speech. They are granted access to social media in exchange for data about themselves. If government blocked (prohibited) that exchange, speech by individuals would be restricted. The prohibition of the economic transaction would be tantamount to prohibiting speech. The validity of less sweeping regulations would involve discerning their effects on speech. However, this exchange is clearly sensitive from a First Amendment standpoint. The exchange underlying social media thus implicates both commerce and fundamental rights. Some part of the protection for social media from government action derives from the protections accorded individual speech.
So, in attempting to hold social media companies accountable for unfair or deceptive practices that doesn’t line up with their terms of service (e.g., censoring or fact-checking certain posts), President Trump would run right back into the First Amendment issues we discussed earlier, which would make it extremely difficult for him to succeed against a legal challenge to his executive order.
What does this all mean?
I like summing things up with bullets, so here you go:
The First Amendment doesn’t apply to Twitter. The President may have been right when he said that Twitter was “stifling FREE SPEECH,” but Twitter is under no constitutional obligation to allow “free speech.”
The First Amendment DOES apply to the President. It provides social media providers and users a LOT of protections against the government’s attempts to regulate the content of speech. Anything that the President does that is deemed to regulate the content of Twitter’s speech will likely lose if challenged in court.
It’s unclear whether the President’s executive order is legal.
It isn’t clear that he or the FCC have the authority to limit the scope of the CDA.
It isn’t clear that the FTC can go after social media companies for unfair or deceptive practices, including when those companies do things that aren’t in-line with the companies’ terms of service. There’s a strong First Amendment argument baked in there, and someone smarter than me should think about the question more.
In all honesty, it doesn’t matter what President Trump does, Twitter will always be able to put a fact-check sticker on his tweets.
What do you all think? Also, if you have any topics you’d like me to talk about, please comment below and tell me! Happy to take suggestions.
Great article, very much appreciate your ability to write about what's occurring and its legality while staying neutral on the politics.