The executive order is, to put it plainly, an opportunistic, Orwellian, legally unintelligible screed. For one, its use of the First Amendment as a framing device is an obvious exercise in bad faith. Even Trump, constitutionally illiterate though he may be, is doubtless aware that the First Amendment is a restraint on the government’s power to restrict free speech, not an all-access pass for him to use private businesses and services to say whatever he likes. The order’s attempt to declare social-media platforms public forums with statelike obligations falls flat too, because, as Trump’s own handpicked Supreme Court justice Brett Kavanaugh wrote last year, “merely hosting speech by others is not a traditional, exclusive public function and does not alone transform private entities into state actors subject to First Amendment constraints.”
Indeed, as Kavanaugh emphasized, to treat private actors as state actors simply because they make their forums available to the public would be to intrude upon a “robust sphere of individual liberty.” This would be “especially problematic in the speech context,” he continued, “because it could eviscerate certain private entities’ rights to exercise editorial control over speech and speakers on their properties or platforms.”
Adam Serwer: Trump’s warped version of free speech
A particular irony in Trump’s framing of Twitter’s fact-check as “censorship” is that such actions are exercises of Twitter’s own First Amendment rights. The fact-check did not delete Trump’s false claims, but merely provided additional information to users about them. Such “counterspeech” is a treasured First Amendment value, as famously expressed by Justice Louis Brandeis: “If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.”
But even if Twitter had deleted Trump’s tweets, this action, too, would have been protected by the First Amendment. The right to free speech includes both the right to speak and the right not to speak. As the Supreme Court held in West Virginia State Board of Education v. Barnette, “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein.” If Twitter decided tomorrow to ban all “conservative” or “liberal” speech from its platform, it would have the right to do so. This right of private entities to make certain decisions about who gets to use their services or whose messages they want to promote is, at least when conservatives approve of the outcome, also known as “the free market.”
But legal coherence is not the point of the executive order. The point of the order is to stoke the flames of a culture war, distract from Trump’s catastrophic mishandling of the COVID-19 pandemic and his dismantling of democracy, and attempt to regroup from the glancing blow Twitter dealt to Trump’s seemingly lifelong immunity from criticism or consequences.