Last week, Twitter added fact-checking labels, then a warning, to several tweets by President Trump. The president responded by signing an executive order that sought to limit what social media companies are allowed to host on their platforms. There are many issues with Trump’s order. For one, regarding the separation of powers, Congress alone has the authority to make, amend, or repeal the laws, not the president. He may sign an executive agreement, but it is lawful only as long as Congress or a succeeding president does not override it.
The main question is whether statements by the president of the U.S. are subject to the same scrutiny and challenges as other citizens. He has more than 80 million followers on his Twitter account, and most readers ought to realize that his tweets have not been fact-checked. In our Internet world, this is a reasonable outcome.
That said, based on the calculation by the Washington Post fact-checking staff, as of April of this year President Trump had made more than 18,000 misleading claims or outright falsehoods since taking office in January 2017 (bit.ly/DSTfalseclaims).
Why should the First Amendment protect these statements? They range from his “birther” tweets concerning Barack Obama’s birthplace to suggestions that MSNBC and former Representative Joe Scarborough was responsible for the death of a young aide in his Florida office, even though he was some 800 miles away in Washington. Under the First Amendment, which guarantees free expression, we do not have the absolute right to say, print, or post whatever we want. None of the rights and liberties outlined in the Constitution are absolute. In fact, the Supreme Court has over the years worked out a hierarchy of expression, and falsehoods and misleading statements are not absolutely protected.
Twitter added fact-checking labels to two of the president’s tweets after he asserted without evidence that mail-in balloting leads to widespread voter fraud. Several studies consistently show that vote-by-mail fraud is rare, and when it does occur, those at fault may be registered in any of our political parties.
Soon afterward, Twitter went further, when Trump posted comments about the unrest in Minneapolis after the death of an African American man when a white police officer pressed his knee into his neck for over eight minutes. The event was captured on video.
Echoing a statement made in 1967 by the racist Miami Police commissioner, Walter Headley, during unrest there, Trump tweeted, “When the looting starts, the shooting starts.” Twitter did not delete the post, but placed a warning on it, stating that Twitter determined that it violated its rules against glorifying violence. Users could view the tweet if they clicked on the warning. The president claimed later he was misunderstood.
Trump’s solution to punish Twitter and other social media companies focuses on a section of the Communications Decency Act of 1996 (CDA). The executive order claimed that fact-checking labels are a form of “selective censorship” because they have “the effect of disfavoring certain viewpoints; and deleting content and entire accounts with no warning, no rationale, and no recourse.” It limits the liability of Internet companies, which these days would include Twitter, Google, and Instagram. The goal was to allow them to remove obscene, pornographic, or even questionable assertions without the prospect of legal action. As the section states, “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”
The law explicitly defined these Internet companies, which by the way did not exist 25 years ago, as distributors, not publishers, of information. The section protects them from being sued based on the content of messages they posted or declined to post.
If the courts uphold Trump’s order as a constitutional exercise of presidential power, which is most unlikely, Twitter and the other companies will probably have to review every post uploaded on their service. This is an impossible task. Just think of the vast number of posts displayed every day. Last January, Trump himself set a personal best on a single day when he posted over 145 tweets or retweets. And his total tweets or retweets since becoming president are now well over 52,000. How these numbers show that he has been a victim of Twitter censorship is inconceivable.
The bottom line is this: No right is absolute, even for the president of the U.S., and the president alone cannot cancel a law or a section of one without congressional approval. This is a lesson hard-learned by the current chief executive in the White House.
The irony of all this is that Trump loves Twitter as his personal political medium, and does not want to lose it, but he will if his order is upheld. The company would either be compelled to fact-check all his posts, or be so overwhelmed by personnel needed to check everyone’s posts that the company would shut down.
Jack Fruchtman, a part-time Aquinnah resident, taught constitutional law and politics for over 40 years.