Liberties Reporting on First Amendment freedoms

Trump vs. Twitter

First Amendment | The president orders a review of social media protections
by Steve West
Posted 6/02/20, 04:22 pm

A dust-up between the White House and Twitter has reignited the debate over who—if anyone—should regulate online speech.

Last week, Twitter posted a fact-checking label on two of President Donald Trump’s tweets that claimed mail-in voting would be “substantially fraudulent” and lead to a “rigged election.” A link inserted by Twitter referred readers to sources arguing no connection exists between mail-in ballots and voter fraud. On Thursday, the president issued an executive order about the broad legal immunity social media platforms enjoy for content. In the wee hours of Friday morning, Trump tweeted criticism of Minneapolis Mayor Jacob Frey’s handling of riots in the wake of George Floyd’s death while in police custody. “When the looting starts, the shooting starts,” he said. Twitter blocked the tweet, saying it broke the platform’s rule against inciting violence.

The Center for Democracy and Technology filed a lawsuit on Tuesday in U.S. District Court in Washington, D.C., challenging the new executive order. The policy organization claimed the president’s action against the social media companies was retaliatory and would have a chilling effect on free speech.

Trump’s order takes aim at Section 230 of the 1996 Communications Act, which shelters internet companies from liability for blocking or otherwise censoring users’ content if they act in “good faith.” The order directs the U.S. Department of Commerce to petition the Federal Communications Commission to issue new rules clarifying the scope of the immunity. Under the directive, internet companies would be liable for removing or restricting a post for reasons that are “deceptive, pretextual, or inconsistent with a provider’s terms of service.” Companies could also lose protection for failing to provide “adequate notice, reasoned explanation, or a meaningful opportunity to be heard.”

Social media platforms have not presented a unified front in response. Twitter CEO Jack Dorsey called the order a “reactionary and political approach to a landmark law.” Facebook spokesman Andy Stone said making platforms liable for user content “would penalize companies that choose to allow controversial speech and encourage platforms to censor anything that might offend anyone.” But Facebook CEO Mark Zuckerberg was more ambivalent. “Facebook shouldn’t be the arbiter of truth of everything that people say online,” he told Fox News.

Trump and other Republicans have long claimed that Silicon Valley companies espouse anti-conservative views. Last year, Republican Sens. Ted Cruz of Texas and Josh Hawley of Missouri convened a hearing before the Senate Judiciary Committee on tech platforms’ bias, though nothing has come of it yet.

Congress created Section 230 in the hope that internet companies would do something courts said lawmakers could not: regulate online speech, Regent University School of Law professor Brad Jacob said.

On Wednesday, the U.S. Court of Appeals for the District of Columbia Circuit affirmed that internet companies are not “state actors” subject to the First Amendment to the U.S. Constitution. The unanimous three-judge panel upheld the dismissal of a complaint from conservative activist Laura Loomer and Freedom Watch against internet companies they claimed suppressed conservative speech.

Jacob said removing or limiting Section 230 could unintentionally allow more harmful content online.

“As a Christian, I’m not sure what side of the issue I want to be on,” he said, suggesting the best solution may lie in creating new platforms. If people leave existing social media sites, it could encourage the companies to employ content moderators who better represent their customers’ viewpoints.

“I tell my students all the time that one can make a thoughtful Biblical argument on different sides of almost any legal issue,” Jacob said, and this is one example. The market, and not the government, might have to resolve this conflict.

Associated Press/Photo by Nam Y. Huh (file) Associated Press/Photo by Nam Y. Huh (file) A worship service at Lakewood Chapel Church in Arlington Heights, Ill.

High court agrees with tighter church restrictions

In a rare late-night ruling on Friday, a divided U.S. Supreme Court rejected a California church’s emergency petition to overturn the state’s restrictions on worship.

Chief Justice John Roberts indicated that he and the court’s four liberal justices felt churches did not compare to businesses, given the circumstances. “The precise question of when restrictions on particular social activities should be lifted during the pandemic is a dynamic and fact-intensive matter subject to reasonable disagreement,” he wrote in a concurring opinion.

In a dissenting opinion, Justice Brett Kavanaugh held the state to a higher standard, saying “the state may not take a looser approach with, say, supermarkets, restaurants, factories, and offices while imposing stricter requirements on places of worship.”

The San Diego–area South Bay United Pentecostal Church’s emergency petition challenged Gov. Gavin Newsom’s executive order that limited in-person worship to 10 persons. The church pressed on even after the Democratic governor issued a revised order allowing worship gatherings at a 25 percent capacity with a cap of 100 people.

“Although this interim ruling is disappointing, it’s clear to us that, without the filing and vigorous litigation of this lawsuit, churches would still be closed in California under Gov. Newsom’s original shut-down orders,” said the Thomas More Society’s Tom Brejcha, who represents the church.

Chicago’s Elim Romanian Pentecostal Church and Logos Baptist Ministries filed a similar petition in Illinois, which replaced its worship gathering ban with suggestions for social distancing on Thursday afternoon. The Supreme Court denied the petition late Friday but left the door open for a new filing if the state reinstituted stricter rules. Until Thursday, Chicago had aggressively enforced the restrictions on churches—prohibiting parking around their buildings, issuing citations to pastors for disorderly conduct, and threatening them with public nuisance proceedings. —S.W. Waterfront Park in Portland, Ore.

A more tolerant Portland?

Oregon’s largest city may be known for the progressive and open-minded residents lovingly satirized in the television comedy Portlandia, but that tolerance didn’t extend to street evangelist Mark Mayberry. Portland officials in June 2019 kicked him out of the city’s Waterfront Park, where he held a sign defending the unborn, distributed tracts, and engaged people in conversations about abortion and the gospel.

On Wednesday, the city agreed to pay $50,000 to settle Mayberry’s free speech lawsuit. Officials also agreed to provide additional training for police and park officers to prevent future infringements on First Amendment rights. —S.W.

DOJ challenges business restrictions

The U.S. Department of Justice filed a statement of interest on Friday in a case to reopen businesses shut down by coronavirus restrictions. Seven Michigan companies sued Democratic Gov. Gretchen Whitmer for allowing other businesses to open while they remained closed. The businesses—including a real estate brokerage firm, a lawn service, a property maintenance company, and an automotive glass exporter—called the governor’s orders arbitrary and irrational and said they might violate the U.S. Constitution’s commerce and equal protection clauses.

Whitmer announced on Monday she is easing some restrictions on businesses and public gatherings next week.—S.W.

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Steve West

Steve is a legal correspondent for WORLD. He is a graduate of World Journalism Institute, Wake Forest University School of Law, and N.C. State University. He worked for 34 years as a federal prosecutor and is now an attorney in private practice. Steve resides with his wife in Raleigh, N.C. Follow him on Twitter @slntplanet.

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  •  Xion's picture
    Posted: Tue, 06/02/2020 06:30 pm

    The Trump vs Twitter article highlights how much falsehood is involved in this conversation.  Trump does tweet untruths, but the ones that got tagged weren't untrue.  And the fact check links brought users to sites that were untrue.  Zuckerberg insists on not policing content while banning PragerU and routinely censoring the content of my conservative friends.

    Recinding section 230 of the Communications Act will have precisely the opposite effect.  It will cause more censorship.  I hate saying this, but if tech giants want to be regulated like neutral communication platforms, then they will have to be regulated like them.    

  •  West Coast Gramma's picture
    West Coast Gramma
    Posted: Thu, 06/04/2020 01:43 pm

    Xion: How do you know which sites/tweets are true and which untrue? How do you do your fact checking?


  •  West Coast Gramma's picture
    West Coast Gramma
    Posted: Thu, 06/04/2020 01:53 pm

    A common definition of censorship is, "The suppression or prohibition of any parts of books, films, news, etc. that are considered obscene, politically unacceptable, or a threat to security." Under this often used definition Twitter did not "censor" President Trump. They allowed his comments to be read, but they themselves commented upon them. Twitter is a for-profit company. It is not an official arm of the United States Government. Trump uses Twitter by his own personal choice. He doesn't have to. Twitter, as a private company, has its own First Amendment freedom of speech.

    Currently, a cake decorator and a florist are trying to "censor" the kinds of products they produce. They don't want to be forced by the government to deliver a message that offends their personal beliefs. If they should have the freedom of speech and religion to control their product, why shouldn't Twitter?