The Utter Incoherence of Trump’s Battle With Twitter
The president’s executive order is opportunistic and Orwellian—but that was the whole point.
About the author: Mary Anne Franks is a professor at the University of Miami School of Law. She is the author of The Cult of the Constitution: Our Deadly Devotion to Guns and Free Speech.
Donald Trump has used Twitter to do many things: accuse a man of murder, incite insurrection, harass private citizens, block critics, lie about voting systems, threaten war crimes, promote unproven drug treatments, and divert attention from the 100,000 deaths of Americans on his watch. He has done all of this, and more, for years without the slightest interference by the platform. Even as he repeatedly violated Twitter’s rules and policies and the targets of his malicious campaigns pleaded for intervention, the social-media platform stood down.
But on Tuesday, Twitter did something it had never done before. It fact-checked Trump, or, more precisely, it added a small label with an exclamation point and the words “Get the facts about mail-in ballots” to two of Trump’s tweets that contained false claims about voter fraud. Clicking on the label leads to a Twitter announcement headlined “Trump makes unsubstantiated claim that mail-in ballots will lead to voter fraud.”
Within minutes, Trump had accused the platform of “stifling free speech” and “interfering in the 2020 Presidential Election,” vowing to “not let it happen.” The next day, Trump’s press secretary, Kayleigh McEnany, told reporters that Trump would sign some kind of executive order about social media; a draft of the order was circulated to journalists and members of the public later that night. On Thursday, after ordering reporters out of the room, Trump signed the executive order, the final text of which was released shortly after.
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.”
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.
And this is perhaps the most profound irony of the executive order: It criticizes the sweeping immunity provided to the tech industry by Section 230 of the Communications Decency Act, the controversial 1996 federal law that prohibits online intermediaries from being treated as the publishers or speakers of content posted by internet users. But the order doesn’t address the core problem with the law that scholars and advocates have highlighted for years—namely, how its immunity provision not only fails to encourage online intermediaries to address harmful content but rewards them for indifference. Trump’s order does not acknowledge the ways that this immunity has allowed online intermediaries to ignore, encourage, and profit from abuses—harassment, privacy invasion, deadly misinformation—directed at vulnerable groups, especially women and people of color. It does not recognize, in other words, the similarities between Twitter and Trump.
In the standoff between Twitter and Trump, siding with Twitter is easy. Yesterday, the company intervened again. To the president’s tweet about the protests in Minneapolis that said “When the looting starts, the shooting starts,” Twitter added a warning label indicating that the apparent threat of extrajudicial killings violated the company’s policy against glorifying violence. The official White House account reposted the same language that Trump used, and Twitter put a warning label on that tweet, too. In its willingness to flag Trump’s posts, Twitter has taken a much braver and more principled stand than, say, Facebook has in countering misinformation and abuse.
But this is all very little, very late: We have arrived at this dangerous, ludicrous point because powerful entities—both in the tech world and in the White House—have for so long been protected from the consequences of their actions. The result is a diseased democracy from which none of us, in the end, is immune.