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No, Twitter is not violating Trump’s freedom of speech

But what about Trump’s apparently retaliatory executive order?

This has been updated with the latest news.

President Trump is alleging that Twitter “is completely stifling FREE SPEECH” by appending a label on one of his tweets about mail balloting for its users to fact check what he said. On Friday, Twitter went a step further, blocking users from immediately seeing one of his tweets that said “when the looting starts, the shooting starts" about police-violence protests in Minneapolis.

Trump appears to be alleging that Twitter violated his constitutional right to free speech— but it didn’t either time it appended an official note to his tweets.

First, a primer on the right to free speech: It’s right there in the First Amendment of the Constitution that Congress shall make no law “abridging the freedom of speech,” in addition to other freedoms such as religion and press and the right to assemble. And for centuries, the courts have erred on stringently protecting people’s freedom of speech from government intervention.

That doesn’t apply to what Twitter did, for two reasons:

1.) Twitter is a private company, not a government. The First Amendment was designed to prevent Congress or the states from blocking people’s freedom to express themselves. In fact, you could argue that it protects the right of a company such as Twitter to decide for itself what content to allow. The government can’t push a private company to publish something it doesn’t want to publish, said John Morris, who has served in leading telecommunication roles in two presidential administrations and is now a fellow at the Brookings Institution. On Thursday, Trump retweeted a video saying “the only good Democrat is a dead Democrat” — language that is offensive, yes, but that freedom of speech is designed to allow. Major social media companies have modeled their platforms on this principle, as well, but they don’t have to.

2.) Twitter is a platform that can regulate its content as it wishes, in accordance with its own terms of service. Morris said there are no laws that restrict the ability of platforms or websites to regulate their content. And if Trump doesn’t like it, he is welcome to go to another platform.

So while the constitutional issue is pretty straightforward — there is no constitutional issue with what Twitter has done, including when it deleted other world leaders’ tweets — First Amendment experts say there is a debate to be had about what kind of role society wants social media companies to play in public discourse.

Trump could have been arguing that Twitter shouldn’t clarify his tweets, on a philosophical level. First Amendment experts say that’s a more legitimate debate.

The morning of Twitter’s decision to append Trump’s tweet, there was a dramatic request in a similar vein. The widower of a woman who died in 2001 asked Twitter to delete Trump’s tweets baselessly alleging MSNBC host Joe Scarborough had murdered her. Twitter decided not to remove them.

For years now, Facebook and Twitter have been under scrutiny for their roles in hosting Russian misinformation during the 2016 campaign. The Wall Street Journal reported Wednesday that Facebook passed up a chance in 2018 to make the site less divisive.

How and whether social media companies should fact-check and police their users was already a heated conversation in Silicon Valley and Washington. Facebook CEO Mark Zuckerberg indicated Wednesday that he disagreed with Twitter’s decision to fact-check Trump, saying social media companies should not be the “arbiter of truth.”

“We have a really active debate right now in our society about whether certain kinds of views is misinformation or hate speech on these platforms are harmful, and whether these companies should do more about it,” said Sam Gill, with the nonprofit Knight Foundation. “The fact that potentially, on its face, this isn’t a free-speech issue doesn’t mean there aren’t really big questions about what the right policy should be either on the side of the companies or the side of government.”

Questions such as: Because these social media platforms have such a big reach and influence, do they have different obligations to society than other private companies? Gill said another big, unresolved question is whether there are different kinds of speakers with different kinds of responsibilities on Twitter. For example, anyone on Twitter can block another user. But the Knight First Amendment Institute sued Trump for blocking users, arguing he was blocking their freedom of speech. The courts agreed.

Gill said the Knight Foundation (which is separate from the Knight First Amendment Institute at Columbia University) has done polling around all this and found Americans are divided on whether and how much government should step in to regulate content, or whether it should be up to the individual to navigate it all, or the company. There are no easy answers to these questions.

Complicating this debate is an executive order Trump signed Thursday to allow more federal scrutiny of the way social media companies police content. But it’s legally dubious and will likely face challenges — if it’s enforceable at all.

To try to punish social media companies for regulating some content, the executive order argues that social media companies are somehow stepping outside the law when they do regulate content. But the law actually says that social media companies are protected from liability from the content published on their sites, Morris said. This executive order sounds to some legal experts like the White House is trying to reinterpret the law without Congress’s input.

It is “95 percent political theater — rhetoric without legal foundation, and without direct legal impact,” said Daphne Keller, who studies platform regulation at Stanford Law, in a social media message to The Fix.

For example, the executive order calls on the Federal Communications Commission to reinterpret the law. But will they? Jessica Rosenworcel, a Democratic commissioner of the FCC, described the executive order in a statement as turning the FCC “into the president’s speech police.”

If the FCC goes ahead with opening the door to policing social media companies, it could raise First Amendment issues, like about how the government interferes with a private company. But the reverse — Twitter regulating the president’s tweet — does not.