photo by StockSnap via Pixabay
Friedrich Nietzsche has been credited with the warning that we should choose our enemies carefully, because they are who we will become most like.
President Donald Trump certainly has a wide assortment of enemies from which to choose. But I am going to crawl out on a limb here and speculate that he spends very little time pondering Nietzsche.
In a not-uncharacteristic fit of presidential pique, Trump last week issued an executive order purporting to strip certain liability protections from Twitter and other social media platforms that, in the president’s view, censor politically conservative voices – notably his own. Trump acted after Twitter appended a fact-check notice to two of his tweets that asserted California’s proposed mail-in voting system would be “substantially fraudulent.”
The primary target of Trump’s order is Section 230 of the Communications Decency Act, which Congress passed in 1996. Section 230 is widely credited with fostering American dominance of the social media landscape in free societies. The statute declared that providers of internet computer services are not deemed to be authors or publishers who are responsible for the material posted by third parties. This shields providers such as Facebook and Twitter from lawsuits claiming defamation, invasion of privacy or other offenses allegedly resulting from user-generated content.
The statute also protects service providers and users from liability for any action they take “in good faith” to remove material they consider “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.” As Sen. Ron Wyden (D-Ore.) – Section 230’s co-author – has put it, the law serves as a metaphorical sword and shield for platforms. They can moderate as they see fit (the sword) and receive protection from liability for user content (the shield).
Having decided that Twitter – the platform that gives Trump near-constant access to the global media’s attention, whether they like it or not – is actually his adversary, the president now seeks to rein in the platform’s ability to rein in his posts.
It is an utterly losing proposition.
In the first place, Trump’s executive order cannot override a statute that has been time-tested and extensively litigated. As the U.S. Chamber of Commerce observed in a statement, “An executive order cannot be properly used to change federal law.” The order is sure to trigger legal challenges, and courts have repeatedly upheld Section 230’s broad reach and extensive protection. One such decision arrived as recently as last week.
Even if Trump somehow succeeded in stripping Section 230 protection from Twitter and other platforms, the result would be the exact opposite of what he says he wants. The platforms would then have some yet-to-be-determined responsibility for the content their users generate. Few users are as prolific and closely watched as Trump. The platforms, notably Twitter, would surely respond by taking away his direct access to the vast audience he has collected. Comments on many blogs, including this one, are moderated and reviewed before they are published, even with Section 230 in place. Trump’s tweets would be similarly subject to moderation in a world where he weakened his platform of choice’s legal protections.
Publishers have a virtually absolute right under the First Amendment not to publish something they don’t want to disseminate, regardless of its merits or lack thereof. The New York Times is under no obligation to place even an analysis as incisive as this one on its op-ed page. With or without Trump’s order, Twitter could suspend the president’s account at any time for any reason, or for no reason at all.
Any effort to restrict Twitter’s right to do this will almost certainly fail. Trump can be forgiven for hoping otherwise, because he came of age in the pre-internet days when broadcasters were subject to federal regulations over their content. A certain fraction had to be educational or instructional (those requirements were usually met in the wee hours of the morning); matters of public controversy were subject to a “fairness doctrine,” requiring broadcasters to present all sides of an issue; and candidates for office could claim “equal time” to the exposure given to their rivals – even to old movies that featured an actor-turned-politician named Ronald Reagan.
The rationale behind these rules was that the airwaves, or radio spectrum, belong to the public. They were thus licensed to private broadcasters as a public trust. There is no such rationale behind the internet, which – despite its early origins in government and academia – is now almost entirely funded by private capital.
Nobody has benefited more from today’s deregulated communications environment than Trump himself. His @realdonaldtrump Twitter account has more than 80 million followers. His ability to command television screens for hours on end, such as during his now-discontinued daily pandemic updates, is an enormous asset, even if he arguably manages to turn it into a liability. Joe Biden only wishes he could demand equal time, as he ripens in his socially distanced basement.
If Twitter did decide to cancel Trump’s daily production, he could take his show to another outlet. There are any number of conservative websites that would love to host him. He would still command media attention due to his office. His loyal fans would still follow him. He could make his own site, if he wanted.
Any government effort to enforce so-called fairness or accuracy on the internet will inevitably devolve into an argument over which speech is “correct.” This will then lead to debates over which speech is incorrect. There are plenty of folks out there who would love to enforce political correctness on the internet.
These people are Trump’s real political enemies. They are also those of the benighted conservatives like Sen. Josh Hawley and Rep. Matt Gaetz, Republicans from Missouri and Florida respectively, who seem eager to follow Trump down this road to nowhere. Hawley and Gaetz each independently announced last week that they are working on legislation to strip Twitter of its liability protections.
These self-labeled conservatives ought to pay closer attention to the First Amendment, and to Nietzsche too. Their choice of enemies is dangerously sloppy.