The order directs Commerce Secretary Wilbur Ross to request new regulations from the Federal Communications Commission to determine whether a social media company is acting “in good faith” to moderate content.
In theory, that could open the door to users suing social media platforms if they feel their posts are restricted inappropriately. But it could also make the companies more likely to take down false or misleading content rather that just add a disclaimer — the opposite of what Trump wants.
“That’s the irony of all this,” said Nathaniel Persily, a Stanford University law professor who studies technology and democracy. “The platforms will be much more aggressive in their automated filtering to go after content that could raise their legal liability.”
As to the merits of the president’s complaint: independent audits
have found that social media posts by liberals and conservatives get similar levels of engagement, but conservatives have consistently made claims of discrimination anyway based on anecdotes. Even as Fox News consistently gets more engagement on Facebook than almost any other publisher
, conservatives have come to define “bias” ever downward
— so that it now covers any outcome they don’t like, whether it’s poor placement in search results, the removal of bot followers, or fact-checking.
That has led an increasing number of conservatives to sue social networks alleging infringements on their rights. What these cases have in common is that courts keep throwing them out, as Adi Robertson reported this week in The Verge
, in a piece that surveys a large handful of recent attempts.
Interestingly, to the extent that there’s a nexus between Twitter and the First Amendment, courts have found that it is found when the president blocks users — a practice they have found to be unconstitutional, Robertson writes:
Conversely, government figures like Trump actually face strict rules
about blocking users. Last year, a court required Trump to unblock Twitter accounts that had criticized him, determining that his Twitter account specifically — not the site as a whole — constituted a public space protected by the First Amendment. Other public officials have lost similar lawsuits from constituents.
The biggest one is the First Amendment, which prevents the US government from limiting private speech
. Telling Twitter how and when it can moderate is going to look an awful lot like limiting the company’s private speech — particularly when the inciting incident was about adding content rather than blocking it
. In practical terms, it means that there is certain to be a court challenge alleging that the order is unconstitutional, which will hamstring any attempted action by the FCC.
That’s not the only legal problem, although I’m not sure we have room to run through all of them here. It’s not clear that the FCC has the authority to do any of this on the basis of an executive order. It’s really not clear that you can change 230 (which is part of a law, let’s remember) without congressional approval. And even if you could, all the usual concerns about changing 230 still apply. This wouldn’t just hit Twitter. The FCC would suddenly be in charge of YouTube, Craigslist, and every comments section on the internet.
Yesterday I noted here
that while Trump’s bluster against social networks often results in a flurry of coverage, it hasn’t ever really gone much further. Well, this is going further. If the courts strike it down, as everyone expects, then in retrospect it will just look like more bluster. But if Trump finds a legal footing, then a lot of sites on the internet are going to be in trouble — and not just social networks
, by the way.
And even if he doesn’t, we’ll still have seen a deeply disturbing encroachment of the federal government on actual free speech — part of a new surge in American authoritarianism
that threatens our internet, our elections, and so much more. Today the president is focused on a handful of social networks that have challenged his power. But it still seems both obvious and necessary to say that if he wins, he won’t stop there.
Given that the executive order threatens every social platform equally, you might expect some level of solidarity in the corporate response. And trade groups
to which the big platforms belong did put out statements condemning the order as unworkable nonsense.
But Mark Zuckerberg raised some eyebrows Wednesday night when he appeared on Fox News
and appeared to draw a distinction between Facebook’s approach to moderating speech and Twitter’s:
“We have a different policy than, I think, Twitter on this,” Zuckerberg told ”The Daily Briefing”
in an interview scheduled to air in full on Thursday.
“I just believe strongly that Facebook shouldn’t be the arbiter of truth of everything that people say online,” he added. “Private companies probably shouldn’t be, especially these platform companies, shouldn’t be in the position of doing that.”
I don’t think that Facebook or internet platforms, in general, should be arbiters of truth. I think that’s kind of a dangerous line to get down to, in terms of deciding what is true and what isn’t. And I think political speech is one of the most sensitive parts of a democracy. And people should be able to see what politicians say. And there’s tons of scrutiny already—political speech is the most scrutinized speech already by a lot of the media. And I think that that will continue. […]
You know, just because we don’t want to be determining what is true and false, you know, doesn’t mean that politicians or anyone else can just say whatever they want. And our policies are grounded in trying to give people as much voice as possible while saying, if you’re going to harm people in specific ways … we will take them down no matter who says that.
Zuckerberg then mentions a case in which Facebook removed a post by the president of Brazil. “There are lines, and we will enforce them,” he said. “But I think in general you want to give as wide of a voice possible. And I think you want to have a special deference to political speech.”
The weird thing about all this is that, as best I can tell, Facebook and Twitter’s policies around election misinformation are essentially the same. Facebook introduced policies prohibiting voter suppression and intimidation in 2018, and expanded its guidelines in October
. The policies prohibit:
Misrepresentation of the dates, locations, times and methods for voting or voter registration (e.g. “Vote by text!”); misrepresentation of who can vote, qualifications for voting, whether a vote will be counted and what information and/or materials must be provided in order to vote (e.g. “If you voted in the primary, your vote in the general election won’t count.”); and threats of violence relating to voting, voter registration or the outcome of an election.
You can argue that Trump’s baseless warnings about voter fraud related to voting by mail haven’t yet “misrepresented methods for voting or voter registration.” But you can’t say Facebook isn’t an arbiter of truth on election information. If you go on Facebook tonight and post that “Republicans vote a week later Democrats,” Facebook will remove that post without even sending it to a fact-checker first.
Of course, Jack Dorsey complicated all of this by posting a confusing Twitter thread
in which he said of the company’s decision to label two of Trump’s tweets: “This does not make us an ‘arbiter of truth.’ Our intention is to connect the dots of conflicting statements and show the information in dispute so people can judge for themselves.” Maybe
Twitter isn’t playing truth-decider in this case — it just added a link to some tweets, after all — but it does so in plenty of other cases, and in fact updated its policies just this month so it could do do so more often.
Twitter said it made the decision to add links to Trump’s tweets about vote-by-mail fraud in line with this new policy, even though the connection between vote-by-mail and COVID-19 may not be clear to many people. (The idea is that more people will want to vote by mail to avoid getting sick at the polls, which happened to 52 people during the recent election in Wisconsin
Given everything Trump tweeted before
Twitter decided to label two of his tweets — threatening nuclear war comes to mind
— it does seem strange the company chose mail-in-ballots, of all places, to challenge the president. It would have been a more clear-cut violation if the president had tweeted “Democrats aren’t allowed to vote in November,” for example, or “I’m canceling the election.” But the spirit
of Trump’s tweets is to suppress voter turnout and misrepresent the legitimacy of legally cast, mail-in ballots — and that seems like as good a content-moderation hill for a company to die on as any other.
It is messy, though, and while Twitter has always been messy, Facebook works hard to keep things consistent. And this is the basic reason Trump’s tweets got a label on Twitter but the same words, cross-posted to Facebook, went unchanged. Trump might have walked right up to the line but with his threats about voter fraud, but Facebook didn’t see a clear violation. The real policy, as ever, is what you enforce. Twitter took a novel approach to putting limits on the president; that’s fine for Twitter, but Facebook is staying out of it.