Trump's Strike at Twitter has No Legal Foundation

Mish

Trump issued an executive order today involving Twitter. However, Trump's action has no legal basis.

Trump Threatens to Shut Down Twitter

Yesterday I reported Trump Threatens to Shut Down Twitter.

The threat came after Twitter inserted a "Get the Facts" link on mail-in voting at the end of a pair of Trump Tweets.

For details, please see Twitter Corrects a Trump Tweet With an Addendum

Executive Order Removing Twitter's Liability Shield

Today, Trump admitted he has no means to shut down Twitter, but he did issue an executive order regarding social media outlets.

Specifically, Trump removed liability protections for social-media companies.

"Currently social media companies like Twitter receive an unprecedented liability shield based on the theory they are a neutral platform, which they are not, [They are] an editor with a viewpoint." 

"My executive order calls for new regulations under section 230 of the Communications Decency Act to make it that social media companies that engage in censoring or any political conduct will not be able to keep their liability shield. That's a big deal"

The 1996 Communications Decency Act gives online companies broad immunity from liability for their users’ actions, as well as wide latitude to police content on their sites.

It is highly doubtful that Trump can legally amend that legislation with an executive order.

Social Media Fight

The Wall Street Journal has some interesting comments. 

The president has threatened for years to counteract what he and many conservatives see as a systemic bias against their political positions on social media. His campaign on Thursday sent supporters an email seeking to raise money off the president’s feud with Twitter.

The order will likely be challenged in court, experts said, on grounds that it oversteps the government’s authority in restricting the platforms’ legal protections, which federal courts have interpreted broadly. It also could be challenged on grounds that it violates their First Amendment protections.

Daphne Keller, a former associate general counsel at Google who is now director of the Program on Platform Regulation at Stanford University’s Cyber Policy Center, said the White House order is largely rhetoric without legal foundation. 

Both Sides

Keller noted the bind huge social media site are in.

“They get it from both sides: Powerful voices demand that they take down more speech, and other powerful voices demand that they take down less. There is no way for them to win, since no one will ever agree on what the exact right speech policies would be,” said Keller.

Do Everyone a Favor

Much Ado About Nothing

This morning at 7:16 AM before we saw Trump's action or the WSJ discussion, a legal scholar friend of mine, sent me his point of view, as follows.

Today’s executive order will look at Section 230 but it will be meaningless.

Statements about public figures are not actionable except for things such as purposeful libel.

This is much ado about nothing, like most of what Trump does. 

Fox News Media Irony

As Trump complains about the media bias of Twitter, can someone please explain how Fox News is not an "editor with a viewpoint" on a biased platform to boot?

Twitter Irony

Trump's action will be challenged in court and he will lose. 

However, losing is just what Trump wants so he can scream and howl more about Twitter, on Twitter, while praising that bastion of alleged "fair and balanced" neutrality known as Fox News.

Please Name a Major Unbiased News Source

In case you have not figured it out, no news sources are truly neutral, and everyone has a viewpoint or agenda.

The Choice

We have a choice. We can put up with Social Media Sites like Twitter and Facebook as well as news sites like Fox News and the Washington Post, etc., or we can tune them out. 

Unfortunately, the vast majority of people seek out places likely to say what they want to hear or places or celebrities with which they can constantly argue. 

Trump has 80.4 million followers on Twitter. How many people follow Trump because they despise him?

Addendum

Reader Bill offers these pertinent thoughts:

The conflation with Fox News makes no sense. Fox News is a publisher and makes no attempt to claim Section 230 protection. By contrast, Twitter is not a "news source", they literally create nothing themselves, they are a conduit for those who do.

Section 230 is genuinely smart legislation (normally an oxymoron). It doesn't just protect huge players like Facebook or Twitter, but anyone who permits user contributions, including Maven and, yes, Mish himself. As others point out, those who want to blithely do away with it because "Twitter is picking on my tribe" should be careful what they wish for.

I was simply attempting to point out there are no unbiased sources, even including this one. We all have biases. And I do delete offensive comments as well, but I do not tag them with a correction flag as Twitter just did.

The essence of Bill's comment is accurate: "Those who want to blithely do away with it [Section 230] because 'Twitter is picking on my tribe' should be careful what they wish for."

Addendum 2

My legal expert just pinged me with this comment: "If Twitter is liable for Trump lies, they won’t publish them, killing his twittering. Trump must know this isn't going anywhere."

Legislation along the lines of what Trump appears to want would open up a can of worms as to who gets to decide what is or isn't a lie. 

This is exactly what reader Bill warned about above.

Mish

Comments (120)
No. 1-39
Zardoz
Zardoz

I bet they kick him off closer to the election. He was stupid to build his strategy around twitter.

JustDaFactsJack
JustDaFactsJack

The entire intent of the "executive order" was to throw red meat to his base. There's nothing the MAGA crowd eats up more than posturing themselves as victims and claiming to be oppressed.

indc
indc

Why is Mish comparing FOX and twitter. The law can will be used when and where it can be used. I think You need to get more input from someone who knows LAW.

Hilroy
Hilroy

Could the repeal of Net Neutrality ( in 2017 ) support Twitter's action?

The Hood
The Hood

I was hoping there might be something we agree upon Mish, but it's clear these SMG's are mediums no different than telephones and TV programs on the airwaves, by coax or light. They are all in essence "Utilities" in every sense of the world governed either by the SEC - FCC, or both.
Further, anything that smacks as censorship in the face the 1st Amendment has a wall to climb at least as steep as the Federal Reserve Banks recent balance sheet additions; and spare me the "it's a private business",..."what, aren't you a capitalist anymore" ... "go out and start a your own SMG", blather and nonsense unless I'm going to get billions in seed money and software thrown at me by the CIA's investment arm, In-Q-Tel so I can create a monopoly too.
See, I do believe in capitalism. It's a lot different than it's opposite - governmentism, which is the nice way of saying any "ism" you like because one size fits all.
Because if one insists upon binary thinking, this is the only binary question you have to cross.

billso
billso

The conflation with Fox News makes no sense. Fox News is a publisher and makes no attempt to claim Section 230 protection. By contrast, Twitter is not a "news source", they literally create nothing themselves, they are a conduit for those who do.

Section 230 is genuinely smart legislation (normally an oxymoron). It doesn't just protect huge players like Facebook or Twitter, but anyone who permits user contributions, including Maven and, yes, Mish himself. As Jack points out above, those who who want to blithely do away with it because "Twitter is picking on my tribe" should be careful what they wish for.

Sechel
Sechel

Personally I think the social media outfits are effectively publishers so they should hire some extra staff and start policing themselves. They get away with content the NY Times never could.

Ironically this is really bad news for the conservative sites that ban users for straying from talking points an don't publish alternate viewpoints. It's prevents the promulgation of pizzagate, bhengazi, ukraine garbage, bill gates nonsense etc that drives many of these sites.

Trump should be careful what he wishes for he might get it. Democrats have wanted to make changes to section 230 for some time.

Of course this is really about Trump wanting unrestricted ability to post on twitter. He's always had control over government content and has the loudest voice in the room. He doesn't like using the normal protocols. I suspect there's reporting and freedom of information act requirements he doesn't much like. And the one case involving twitter was one where Trump lost involving Trump attempting to block users from his twitter feed.

Sechel
Sechel

Trump's already lost one twitter case. the only one ever brought involving him to my knowledge where he tried to ban users from following or commenting on his tweets.

Sechel
Sechel

Of course The Major News Sites have editorial bias. Nobody ever said otherwise. The New York Times, Wall Street Journal , Financial Times al have a point of view. But there's a difference. They have fact checkers and editors. Trump posts blatant lies on social media and that's what many people are exposed to when they log onto facebook and twitter. That has to change.

DBG8489
DBG8489

This EO accomplishes ONE thing and one thing only:

Getting everyone to talk about it and argue about it and hopefully that will generate some pissing and moaning and even lawsuits and court cases. All in an effort to get social media declared publishers rather than digital platforms.

I said it before on another thread: Trump and his team have a valid point whether you like him/them or not.

It's funny that many of the hardcore users of social media were either extremely young or not even born when the DMCA passed and was signed into law. They have no clue what it says or what it does.

The only reason social media sites are not already regulated as "publishers" is because they came into existence as open forum bulletin boards where anyone could post whatever they liked. This gives them an exception to the regulations that publishers - who pick and choose what to publish - deal with.

The second you start telling people what they can or cannot say, or deleting/shadow-banning users you don't agree with, or especially adding/removing content from their posts, you are no longer an open forum bulletin board, you're a publisher. You are picking and choosing what to publish and editorializing.

And if you're a publisher, you are subject to the provisions of the DMCA.

To be clear, I don't like this and I fought tooth and nail against the DMCA when it was being debated. We were laughed at with our "slippery slope" or "camel with the nose in the tent" arguments....

And yet here we are.

TeleAllende
TeleAllende

It is not clear to me why Twitter (the platform) has to make corrections or tags to posts. We have other users to do so, and news outlets.

Rbm
Rbm

Lets not forget twitter has benefited from Trumps tweets also.
The only news source i feel is closed to balanced is npr of all things. Cant recall the casters name rt now. But he has the same format for dem and rep. Ask questions call out if answer has been proven false. Critics say gets rebuttal calls out if proven false. Thanks for interview. Of course the rt calls them liberal and wont go on for interview because unlike on fox they will get called out.

Rbm
Rbm

It seems to me (most) everyone is getting tired of trump and trump is getting desperate.

k-rits
k-rits

Of course Trump is politicizing this, but he's correct in principle. I don't know the legal nuances, but the difference between platform and publisher is clear and there should not be grey area.

A good analogy to 30 years ago is that a publisher would be a private newspaper/magazine and a platform would the concrete steps of the county courthouse where people can gather to debate. The concrete steps do not pick a side.

Social media started as a platform, but it's more like a private restaurant where people debate, versus the county steps. As a private company, they have the legal right to regulate their business via community guidelines, just like the restaurant owner would have a right to expel a patron that curses up a storm. That's the way it should be.

The basic problem is that we don't have an agreed upon (by the masses) online equivalent to the courthouse steps, where freedom of speech is protected.

We desperately need an online platform that allows free discourse to take place. The LAST thing we need in this country is two versions of Twitter.......one that censors the right and another that censors the left.

This is the correct take from any proponent of liberty in the information age.

tokidoki
tokidoki

Trump shutting down Twitter is like shooting himself in the foot.

How is he going to bash Twitter without Twitter?

The man's going bonkers.

TeleAllende
TeleAllende

Trump posting on Twitter is the best thing ever for a relatively educated country such as the USA. Many normal people across the political spectrum got to see first hand , unfiltered, what a psycho he really is, and that's a good thing in the long run. It may not seem like it, since it's still his first term and it's difficult to remove a sitting president, but I truly believe it's a good thing in the long run. And I also agree with Mish that it's entirely possible that Trump will lose in a landslide in 2020, because he has alienated independents, and Democrats picked Joe Biden, a moderate figure.

BaronAsh
BaronAsh

They are going to run into trouble in terms of commerce. They are favouring and disfavouring on ideological grounds and deplatforming people, thus depriving them of income. Not sure if Twitter is quite in that camp, but for sure FB, Youtube and Google are. Some entirely biased person in a cubicle is enabled to cut off an income stream for essentially arbitrary reasons. It won't fly for much longer, nor should it.

There is an equity issue here and the social media giants will lose on this basis. So that's where the law comes in and why Mish is wrong on this. (Like he is on nearly everything to do with Trump!) Arguments about the opinion content etc. can go round and round forever. But when it comes to unequal treatment - which is clearly going on in spades - they are on shaky ground.

What should happen here is clear standards for bad language, whatever, but then after that no discrimination/editing/fact-checking etc. Either that, or they lose their platform liability shield as Trump and AG Barr explained today, but can continue as publishers liable to being sued. One way or another, things are gonna change - and they should.

Tucker - arguably the best opinion anchor on TV these days - has a good section on this:

Mr. Purple
Mr. Purple

"The remedy for free speech is more free speech." -- Justice Louis Brandeis

bradw2k
bradw2k

He's throwing a tantrum in order to send the entire country into emotional upheaval. The Trumpian Distraction. That is all he's ever done, all he'll ever do to or for us.

Fl0yd
Fl0yd

Indeed phone infrastructure and e-meeting solutions like Zoom and Skype don't alter or interfere with the contents they carry. Shielding them from liability due to user use or misuse is probably a good idea.

Arguably, YouTube should enjoy the same protection so long it doesn't interfere with the contents. Once it polices contents, e.g. remove or demote it, the case can be made they are not merely an impartial platform anymore. Isn't it?

Then again, I dread how YouTube would look like with zero policing. The unregulated web feels sometimes like a dark ally in a lawless town.

Fl0yd
Fl0yd

If Trump kills Twitter, then how would he reach out to the people? :)

If Twitter becomes liable about twits contents, would they risk publishing Trump's twits?

TRasmussen
TRasmussen

I'd like to see Twitter issue a statement like the following:

"Mr. Trump seems to be dissatisfied with our free service, and we in turn are not thrilled with his ridiculous efforts to distract the American people by picking a fight with us. After some consideration, we have concluded that it would be best for all concerned – Mr. Trump, the Twitter community, pretty much the whole freaking world – if he would stop focusing his man-baby energies on us and pay more attention to solving the many real problems facing the good ol' US of A. Therefore, we have suspended his account, effective immediately. Most of his followers were bots anyway. Sincerely, Twitter"

I imagine some will argue that this would somehow hurt Twitter, but I doubt it. It would be recognized by a solid majority as a major own, it would drive Trump completely nuts and he would not be able to stop himself from doing and saying even more things that would repel swing voters. Best of all, it would be funny.

Webej
Webej

The whole idea that corporations have 1st Amendment rights is BS. Corporations cannot go to jail. It is a total fiction that they have bodies (corpora, corporeal): they are incorporeal, they are an idea. It is high time that they are not treated as a "person" but should have some other legal basis, with more accountability, instead of an "always get off scot free".

New technology platforms have evolved. Pretending they are private entities is, well, "pretending". They have largely become the public square. There should be measures to shield them as well as some duty to police illegal content, but also to protect constitutional rights.

High time for less pretending and some creative new legal basis to accomodate new realities.

Sechel
Sechel

What do you think would happen if Trump banned Trump from twitter? They do it all the time with other users for violating their standards. It's a private platform. Other than his head would explode I could see him taking many actions many of which might not be legal

Sechel
Sechel

Twitter is absolutely right. Trump is proving Dorsey's point for him.
if the protesters were festooning themselves with military grade weaponry and storming a government building trump would be tweeting encouragement fro the protesters.

....These THUGS are dishonoring the memory of George Floyd, and I won’t let that happen. Just spoke to Governor Tim Walz and told him that the Military is with him all the way. Any difficulty and we will assume control but, when the looting starts, the shooting starts. Thank you!

frozeninthenorth
frozeninthenorth

It did change the conversation for about 2 minutes...and that's all Trump wanted. Just beats talking Corvid-19, or Trump's GOP convention demand that the place be "packed-in" so that he can look good on TV.

The amazing thing now is that Senate seats that were never thought as being competitive are now seen as competitive, because of Trump, means that we could have a "Nixon Moment" when the GOP decided that the Commander in Chief will really affect their chance of winning THEIR election in November.

Still great way of changing the conversation -- I though that Facebook's statement was more telling -- we will take no reasonable steps to ensure that Facebook comments are truthful!

Realist
Realist

More ”politics of hate” from Trump. No different from what any other repressive regime does (NK, Iran, Iraq, etc). Distract the populace by getting them to focus their anger on some perceived enemy.

With Hitler, it was the Jews. Pol Pot, the educated and intellectuals. Osama bin Laden, Americans.

With Trump, it is a cornucopia of enemies. Mexicans, migrants, Muslims, Chinese, Europeans, Canadians, non-whites, the press, the deep state, the experts (like scientists), women, the Democrats, Twitter, the elites (whatever that is), States, governors, etc etc etc

And he will keep doing it for the rest of his life. Why? Because it works. There will always be weak-minded individuals who will believe whatever their ”leader” feeds them because they need to find someone, anyone, to blame for whatever ails them. And the ”leader” sure doesn't want that anger focused on him.

WildBull
WildBull

The social media platforms should be considered common carriers like the phone companies, and should not be editing for content, unless somehow illegal in other ways. You could post a picture of Trump doing a sheep and it would not be taken down, but say something snarky about a Democrat and you are all of a sudden violating "community guidelines. " That makes the platforms publishers and responsible for their content. This is not to say that the conservative sites are any better. But, none of them are the size of Facebook or Twitter, nor have they been read the riot act by the Deep State, as was Zuckerberg. The media in general are no longer interested in providing factual content, very much. The political agenda comes first and the "news" if you want to call it that is no more that justification for the agenda. If you watch Fox and CNN in equal amounts, you will come to hate them both. Two sides of the same pancake. It all is indicative of the basic problem in this country which is corruption and abandonment of ethics on all sides.

Bungalow Bill
Bungalow Bill

It's not often Chuck Schumer offers a small-government, free market, conservative solution to the problem, but when he does, we should pat him on the back.

When I see Trump attack "liability shields" I remember, Democrats have been threatening gun manufactures they are going to come after them with liability laws for years. We will repay for Trump authoritarianism for a long time to come.

Casual_Observer
Casual_Observer

Twitter was okay with Trump when he was a private citizen. The difference now is he is in the White House as president. He wants to be treated like a private citizen but the truth is public officials have more sway and cannot be private citizens when they want. Twitter is likely headed down a path for different standards based on who you are. And they should get rid of all bots as they are not people.

Sechel
Sechel

In my mind there's a real possibility Twitter moves to Germany or out of the U.S.

tokidoki
tokidoki

This is what desperation smells like.

Sechel
Sechel

This tweet was essentially a shop lifted version widely seen as sparking the 1960's race riots out of Miami. It goes down as what the hell was Trump trying to accomplish here? I"m gobsmacked once again. I thought dog whistles weren't supposed to be this audible

awc13
awc13

"Today’s executive order will look at Section 230 but it will be meaningless.

Statements about public figures are not actionable except for things such as purposeful libel."

how does statements about public figures come into play in this instance? I don't think trump made a statement about a public figure and I don't see how fact checking trump's post is making a statement about trump

awc13
awc13

totally fine with twitter doing this as long as they are consistent and do the same for other public figures and media organizations. if not, then they need to lose their protections that come from being a public forum and be responsible for the content.

it isn't fair that other media be held to a different set of standards. once twitter starts fact checking then the user base is going to start assuming that content is more accurate than it actually is.

RonJ
RonJ

Twitter is meddling in our election. Twitter might as well be Russian.

Jdog1
Jdog1

It is clear that Mish never took any legal classes. At the point where these platforms begin to edit their content, they can no longer claim immunity that comes with their claim that the content they publish belongs to others.


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