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.