A public battle between social media platform Twitter
and Donald Trump, may perhaps lead to a redefinition of freedom of expression
in America, and also affect the right of social media
platforms to moderate content. On Wednesday, Twitter
fact-checked Mr Trump when he tweeted to his 80 million-plus followers that mail-order balloting was “substantially fraudulent” and mail-in ballots would lead to a “rigged election”. Twitter
placed a fact-check warning under two tweets: “Get the facts about mail-in ballots.” These led to a link debunking Mr Trump’s claims as false. (He has himself voted by mail.) Mr Trump responded with a tweetstorm that Twitter was stifling free speech and interfering in electoral processes. He followed up with an executive order. This seeks to empower federal regulators to narrow the scope of the key Section 230 of the Communications Decency Act and place limits on the rights of social media
platforms to moderate content. The order also threatens to remove US federal advertising on social media.
On its part, Twitter responded by saying Mr Trump violated Twitter’s terms of service (ToS) against “manipulating or interfering in elections” by “posting content that may suppress participation or mislead people”. Twitter’s CEO Jack Dorsey
said: “We’ll continue to point out incorrect or disputed information about elections globally.” In addition, Twitter hid a Mr Trump tweet about the Minneapolis riots on Friday, with a warning message that it “glorified violence”. Section 230 of the Communications Decency Act allows social media platforms legal immunity from user-created content, treating them as “platforms”, not publishers. It also gives broad latitude to moderate or remove content. The order threatens platforms with losing these rights and protections if they discriminate against users, or restrict access without giving users a fair hearing, or take other actions violating the stated ToS. The order could, therefore, potentially affect every platform including Twitter, Facebook, YouTube, and Instagram. However, it’s unlikely to pass legal scrutiny, or be ratified by Congress. Legal experts say the order doesn’t pass the test of US constitutionality, and it requires courts to overturn decades of case-law and precedent. The order would have to pass through Congress. It is guaranteed to be legally challenged, with an industry lobby, the Consumer Technology Association, saying: “We oppose today’s unconstitutional, ill-considered executive order.” The order is thus likely to be thrown out as unconstitutional.
However, if Section 230 is amended, it could have peculiar consequences. Platforms which lose protection from being sued for user-generated content may decide to remove everything potentially litigious, ranging from restaurant reviews to political messaging. Alternatively, if platforms cannot moderate or fact-check, one may see waves of hate-speech, fake news, and racism
churned out. The US Constitution offers strong protections for freedom of expression
under the First Amendment. It also has strong protection for property rights. The former gives wide latitude for users to express themselves. The latter allows the owner of a platform the right to moderate, or remove, users.
In April, the Washington Post said Mr Trump had made an astounding 18,000 false or misleading statements since he became President. This is over 15 false statements on an average day. But this is the first time he has been fact-checked by Twitter. Quite apart from freedom of expression, and US federal advertising dollars, there’s a lot at stake politically. Twitter and Facebook were integral to Mr Trump’s 2016 Presidential campaign, and he tweets obsessively. Twitter has stopped accepting political advertising. Facebook continues to allow false or misleading statements to be made in paid political ads, while fact-checking other content. As in 2016, the 2020 Trump campaign thrives on misleading and false statements. If platforms respond by doubling down on fact-checking, or hiding his more outrageous tweets, or perhaps even terminating his account, his campaign would be negatively impacted. On the other hand, if Mr Trump successfully bullies social media into not fact-checking his statements, he gains. The battle lines are drawn.