May 28, Jared Schroeder, associate professor of Journalism specializing in Free Press/Free Speech at SMU Dallas, for a piece identifying what’s at stake – and what is not – in the “Freedom of Speech” tiff between President Trump and Twitter. Published in the Orange County Register and Southern California News Group: https://bit.ly/36DpdrX
The First Amendment, social media, and the president became tangled up again Tuesday when Twitter for the first time tagged one of President Trump’s tweets as false and misleading.
Twitter added a link beneath a set of tweets about mail-in voting. The company urged users to “get the facts about mail-in ballots.” The link indicates there is no evidence of a correlation between voter fraud and mail-in ballots.
The president offered a variety of responses, including that the tag violated his free speech and that he might “shut down” or regulate Twitter.
Let me untangle this mess for you, one string at a time. . .
By Jared Schroeder
The First Amendment, social media, and the president became tangled up again Tuesday when Twitter for the first time tagged one of President Trump’s tweets as false and misleading.
Twitter added a link beneath a set of tweets about mail-in voting. The company urged users to “get the facts about mail-in ballots.” The link indicates there is no evidence of a correlation between voter fraud and mail-in ballots.
The president offered a variety of responses, including that the tag violated his free speech and that he might “shut down” or regulate Twitter.
Let me untangle this mess for you, one string at a time.
The First Amendment protects us from government regulation. The key word in this sentence is “government.” Since Twitter is not a government entity, it is not possible for it to violate the president’s First Amendment rights.
This brings me to the next matter. The president cannot shut down Twitter. This would be an enormous First Amendment issue. The president, as the most powerful government actor, cannot censor this or any tool for expression. The Supreme Court has long held that any government censorship “comes to this Court bearing a heavy presumption against its constitutional validity.”
In other words, the framers of the Constitution specifically sought to protect us from the government censoring our individual speech or that of publications, such as newspapers.
The Supreme Court, for better or worse, has also emphasized that corporations have human-like protections. Censoring or punishing a corporation’s speech is generally equivalent, in the Supreme Court’s eyes, to stopping an individual from speaking. This would be a flagrant First Amendment violation.
Next, can the president regulate social media? No. Congress, which has lawmaking powers that are not vested to the executive branch, could try. It’s past attempts to regulate online expression have failed. The Supreme Court has again and again struck down attempts to limit expression online.
The Supreme Court has generally concluded online expression is akin to the ideas about public participation and the exchange of ideas that were on the minds of the Constitution’s framers in the 18th century. For these reasons, justices have strongly supported protecting such spaces.
For similar reasons, the president also cannot block other Twitter users from following his account, seeing his posts, or commenting. A federal court ruled last summer that “the First Amendment does not permit a public official who utilizes a social media account for all manner of official purposes to exclude persons from an otherwise‐open online dialogue because they expressed views with which the official disagrees.”
So, what can the president do? He can do what any citizen does when they do not like a business or its practices. He can leave and not do business with Twitter any more. Alternatively, he can continue to use the tool to express his ideas.
It’s easy to forget social media platforms are private spaces. They are built to appear like public spaces, like a sidewalk or a city park. It is also reasonable to become concerned when social media platforms, which have garnered enormous power, choose to step into a discussion. If just three companies – Facebook, Google, and Twitter – chose to block a person or their ideas from their spaces, that person would, in many ways, disappear. They would be censored.
There is no legal recourse for these decisions, however. Nor is it likely there will ever be.
In fact, it is far more likely decisions like the one Twitter made Tuesday will become more common. Twitter has been developing and experimenting with policies for the the past several months that would curb misinformation and disinformation, as well as manipulated content.
Facebook has moved forward with an oversight board that will guide future content decisions. The company has also stepped into false and misleading content, taking down false information about COVID-19 cures and, more controversially, removing groups that protested stay-at-home orders.
Twitter did not remove the president’s post, which allows anyone who sees it to encounter the president’s ideas. The company instead added further information. Removing the post entirely would have halted that and been more of a concern.
Regardless, however, Twitter’s decision was not a First Amendment concern. The president’s threats to regulate or shut down the corporation would be.
Jared Schroeder is an associate professor of journalism at Southern Methodist University, where he specializes in First Amendment law. He is the author of “The Press Clause and Digital Technology’s Fourth Wave.”