Trump Cannot Regulate Twitter by Executive Order But He’s Sure Like To.
Yesterday, for the first time, Twitter provided a fact check in response to some of the lies contained in Trump’s daily barrage of tweets.
It’s long overdue. Part of what social media desperately needs, if it is to evolve beyond the cesspool of misinformation and trolling it has become, is a fact checking service by the grown ups in the room. Some semblance of editorial responsibility. Not censorship. Just a reality check, provided as a useful service to the readers.
Lo and behold, the first time Twitter posts a fact check in response to Trump’s plainly factually false tweets, after many years of letting him run rampant on Twitter, Trump angrily responds with a threat to shut twitter down entirely and hastily drafts an executive order that’s gonna teach Twitter a lesson.
Trump complains he and his cronies are being censored. But Twitter has in no way censored Trump. They still allow him to tweet anything he likes. They don’t delete or edit his tweets. They merely responded with content of their own, entirely factual, by way of a fact check. Twitter’s fact checking is entirely and purely political free speech, over which Trump has no regulatory authority. Fact checking is just another form of free speech.
If the fact checking were false, Trump could sue for libel. Though he often threatens to sue people for libel (and bitterly complains about the malice element that he would have to prove as a public figure), he didn’t threaten to sue twitter. Perhaps he grasps the absurdity of suing a fact checker for libel when the fact checker truthfully and accurately fact checked the plaintiff. Under Anti-SLAPP statutes, Trump’s defamation case would be quickly and summarily dismissed and would owe attorney’s fees to the defendant. His threats to sue for libel are usually hollow for this reason but there’s no stopping him from signing an executive order in retaliation.
It won’t stand. No amount of Trump packing the federal courts with unqualified appointees who, prior to being sworn in, had never seen a courtroom or even taken a deposition, can save him. There is no federal court of appeals that wants its place in the history books to be the first court to abolish two centuries of First Amendment jurisprudence. Every American 8th grader is taught that the Founding Fathers saw the need for the First Amendment because King George censored the press and punished his critics. It’s a bridge too far for Trump to expect the federal courts to reinterpret the plain meaning of the First Amendment to say that actually, King George was right and the king or president can still censor and punish his critics. No one seriously expects the forthcoming executive order to survive legal challenge.
Twitter, whether viewed in the traditional light of a publication, or viewed as the modern creature of social media platform, may fact check Trump to its heart’s content, under the First Amendment, subject only to civil liability for defamation, and because truth is a complete defense to defamation, there is no civil liability.
The proposition that Trump can somehow alter this Constitutional reality through executive order is thought by some observers to be merely another distraction, part of the daily Trump circus of outrageous diversions to keep people from seeing what’s going on behind the scenes or to avert attention from his latest incompetent bungling.
It’s a good distraction from the fact that the US is the world’s leader in COVID-19 deaths.
We’re number one! USA! USA!
But seriously, if Trump doesn’t like twitter, why doesn’t he just set up his own social media platform? He’s a billionaire, right? Can’t he hire some web designers and launch his own website if he doesn’t like twitter?
He’s too lazy to do so. He is a lazy president. Refuses to read briefings or do any of the serious work of leadership. Gets up in the morning, looks at twitter, tweets and retweets, watches cable TV news talk shows, tweets some more in response to what he saw on TV and watches TV through most of the day, tweeting, while shoving aside advisors and aides with their briefings that he can’t be bothered to read. He takes long weekends to play golf, travels around to conduct rallies, goes on TV. All the fun stuff. Being a reality TV star celebrity is his real claim to fame and he conducts his presidency as a reality TV star celebrity rather than as a grown up.
But leaving the executive order aside, there is an actual legal issue concerning the president and twitter. That is the question of whether Trump can block his critics from his own twitter feed. He uses twitter as his official presidential form of communication, yet blocks from his feed those who criticize him.
Can a president do that? I don’t think so. Isn’t that governmental censorship? Sure seems like it. Now there’s an issue for the courts.
It is analogous to the president holding a press conference, and the president bleeping out from the TV broadcasts any questions from reporters that he didn’t like. Can he do that? I don’t think so.
Some people don’t understand this. It pains me to have to explain this to adults, but here it is. The First Amendment does not allow the government to censor or dictate the content of the press. The right of free speech belongs to the people. Freedom of the press belongs to the press. These rights do not belong to the government. The government or government leaders cannot complain that the press chose not to repeat their lies or challenged their lies. The press has the freedom to publish what it wants. As do social media sites. They are not obligated to publish anything the government or the president has to say, and they are free to publish what they want in response to what the president or government says or does.
More simply, Trump can use Twitter only to the extent Twitter allows him to. They are not censoring him, but they can if they want. They are not the government. The First Amendment only prohibits the government from censorship. It does not prohibit a publication from deciding what it will or will not publish.
This concept, though rather simple, is somehow not understood by many adults even though most 8th graders get it. This article will run too long if I keep trying to explain it in hopes that those who don’t get it will finally get it.
There is reason to be concerned, though. Trump may get his wish to control the press and social media. If he is reelected, by the end of his second term, he may have appointed so many hacks to the federal bench (and probably at least one unqualified hack on the Supreme Court) that it would not be out of the realm of possibility that we’d have a court that “earns its pay” by doing whatever Trump tells it to do. Right now, the federal courts are the last bulwark against Trump’s unconstitutional rampage. But that could change with time as Trump fills more vacancies on the bench.
Trump would tweet what he thinks the outcome of his latest court case against a critic should be, and a few hours later, the court would issue an opinion in agreement.
It already works that way with the GOP congress.
