As Elizabeth Dwoskin reports for The Washington Post, Twitter has fact-checked President Trump for the first time. Trump had claimed on Twitter that mail-in ballots would be “substantially fraudulent.” His two tweets on the topic were labeled with a link inviting readers to “get the facts about mail-in ballots” and directing them to resources stating that Trump’s claims are unsubstantiated. In response, Trump claimed that “Republicans feel that Social Media Platforms totally silence conservatives voices. We will strongly regulate, or close them down, before we can ever allow this to happen. We saw what they attempted to do, and failed, in 2016. We can’t let a more sophisticated version of that happen again. Just like we can’t let large scale Mail-In Ballots take root in our Country. It would be a free for all on cheating, forgery and the theft of Ballots. Whoever cheated the most would win.” Here are four key takeaways.

On the facts, Twitter is right and Trump is wrong

Trump claims that switching to mail-in ballots is going to lead to “a free for all” of cheating, forgery and ballot theft. This is not even slightly true. As Richard L. Hasen has noted, mail-in ballots are already quite widely used, and the available evidence shows there is only a negligible level of fraud.

Some have speculated that Trump is arguing against mail-in ballots because he believes they will benefit Democrats and hurt Republicans. Again, the political science evidence goes the other way. Writing for The Monkey Cage, Daniel M. Thompson and his colleagues find that mail-in ballots do not advantage either party, while Enrijeta Shino and her colleagues show that mail-in ballots for younger, minority and first-time voters are more likely to be invalidated.

The free speech rules work against Trump

Trump initially responded to Twitter’s action by claiming that “Twitter is completely STIFLING FREE SPEECH.” This claim misrepresents the actual situation. The First Amendment concerns government efforts to regulate free speech. But social media platforms are not public utilities. Instead, they are run by private-sector organizations, usually for profit. Under Section 230 of the Communications Decency Act, platform companies have fairly wide discretion either to remove content (if they see fit) or to keep it up. This leads to contestation over how they ought to use their discretion.

As Tarleton Gillespie discusses in his book on social media moderation, platform companies have always restricted their users’ ability to post content, and these restrictions have always reflected value judgments. Increasingly, these value judgments have themselves been contested, by users and groups who want some kinds of speech to be restricted and other users who disagree. Whenever a social media company bans someone like the conspiracy theorist Alex Jones, there are bitter criticisms that free speech is being undermined. Whenever a social media company declines to ban someone like Alex Jones, there are bitter complaints that his false claims are going unchecked. Social media companies would prefer not to be turned into arbiters of political truth — a responsibility that involves many risks and few opportunities for profit. However, they are increasingly being obliged to craft policies and institutions to deal with controversial content. But again, under US law, these are private sector companies, rather than arms of the government, so the First Amendment does not apply.

In contrast, Trump’s threat to shut down social media companies on the claim that they “totally silence conservatives [sic] voices” implicates the First Amendment. Trump - who is the chief executive of the US government - is threatening private actors for political speech and content decisions that he does not like. It is not clear that the administration has the power to do what Trump threatens. However, social media companies will now have a possible defense against any regulatory actions by the Trump administration that disadvantages them. They can claim that the action is motivated by Trump’s animus, and is unconstitutional punishment that violates their First Amendment rights.

Twitter’s new policy is a big change — but one that builds on past policy

In the past, Twitter has been extremely reluctant to regulate Trump’s speech in any way. While Trump’s tweets have frequently been personally derogatory, have propagated conspiracy theories and have otherwise offended against Twitter’s terms of service (the contractual rules that bind Twitter’s users), Twitter has been reluctant to intervene.

However, in October 2019, Twitter did announce a new policy approach to tweets by “world leaders,” which was widely perceived as responding to the challenges posed by Trump’s tweets. In it, Twitter described tweets that would result in immediate enforcement action, including specific death threats, posting child pornography or sharing unauthorized intimate photos or videos, regardless of whether they were added by world leaders or ordinary users. “In other cases involving a world leader, we will err on the side of leaving the content up if there is a clear public interest in doing so,” Twitter added. However, Twitter also noted that “if a Tweet from a world leader does violate the Twitter Rules but there is a clear public interest value to keeping the Tweet on the service, we may place it behind a notice that provides context about the violation and allows people to click through should they wish to see the content.”

Now, Twitter has done just this. Trump’s tweet has not been removed — but it has been placed behind a notice, identifying it as problematic.

Twitter surely expected a backlash

Twitter surely knew its action would enrage Trump. The president had already claimed that the “Radical Left is in total command & control of Facebook, Instagram, Twitter and Google” and suggested that the administration was working to “remedy this illegal situation.” The administration is considering the creation of a commission to examine bias against conservatives in social media, the Wall Street Journal reported earlier this month.

Trump has claimed that Twitter “is now interfering in the 2020 Presidential Election,” warned that “I, as President, will not allow it to happen!," and is now specifically saying that he will shut social media companies down if they interfere.

So why did Twitter go ahead? It may have decided that it is better to have this fight now, rather than risk being dragged into possible contestation over election results in November, when Trump (if he loses) might use his Twitter account to insist that the election was stolen through fraud. Such a situation would leave Twitter with no appealing options. The specific steps that Twitter has taken — focusing on claims over election fraud and labeling them in accordance with a pre-announced policy — are plausibly intended to minimize the downside risks of Trump’s counteraction, even if they cannot eliminate them.

[updated May 27, 8.40am]