President Trump was right and justified Thursday to sign an executive order calling for new regulations to strip legal liability protections from social media companies that censor posts and engage in political conduct on their sites.
I hope the president never has to take action against any social media company. The solution to the very real problem of social media company discrimination – which most often is directed against conservative views – is to end the discrimination, rather than for the government to intervene.
However, President Trump and many conservatives have identified a serious problem. Twitter and some other social media companies want to be two things at the same time: common carriers where anyone can post comments, and news organizations that selectively fact-check some posts and determine which ones are accurate and which ones are not. Making such determinations is an editorial decision that is often very subjective.
Right now social media companies enjoy protection from liability under Section 230 of the Communications Decency Act for what is posted on their sites, because in most cases they allow people to post whatever they wish – as if they were posting on a giant virtual bulletin board.
In contrast, news organizations can be sued for libel if they publish false information with “’actual malice’ – that is, with knowledge that it was false or with reckless disregard of whether it was false or not,” according to a 1964 Supreme Court decision in the case New York Times Co. v. Sullivan.
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On average more than 500 million tweets are posted each day. You can see the enormous number tweeted on the day you read this here. It would be impossible for Twitter to review each of these tweets and fact-check them all before posting. Other social media companies face a similar impossible task.
However, Twitter has selectively targeted conservatives – most recently President Trump this week – and has either taken down their tweets or labeled them as misleading and added a fact check, as was the case with two of the president’s tweets dealing with problems with mail-in voting.
Ironically, the president’s tweets saying voter fraud can take place with mail-in voting were accurate. Twitter’s fact check claiming that the president’s tweets were factually inaccurate was itself inaccurate.
What is crucial here is that by deciding to selectively review a tiny number of tweets on its site and running supposed fact checks on them, Twitter is exercising editorial judgment and deciding what people are told is true.
Even Mark Zuckerberg, CEO of Facebook, told Fox News’ Dana Perino that social media companies should not act as the “arbiter of truth.”
President Trump’s executive order states that social media companies that remove or restrict content should be exposed to liability “like any traditional editor and publisher that is not an online provider.”
Will Twitter now fact-check every tweet by former Vice President Joe Biden and every Democratic elected official in the nation?
Will Twitter now fact-check every tweet by former Vice President Joe Biden and every Democratic elected official in the nation? Will it fact check every tweet critical of President Trump? Obviously not. But by selectively running a fact check (which was actually inaccurate) on Trump’s tweets, Twitter abandoned all pretense of being an unbiased common carrier.
Social media companies should be like trains that allow anyone to board. As common carriers they should allow any ideas to be transported on their platforms without selecting which ones are permitted. Once the companies start picking and choosing among the ideas, they should lose their status and liability protection as common carriers.
WHAT'S IN TRUMP'S EXECUTIVE ORDER ON SOCIAL MEDIA?
Telephone companies are appropriately designated as common carriers. You can call anyone you want and say anything you want without exposing the phone company to liability for what you say. While a caller can be held liable for what he or she says on the phone – such as making a death threat, or plotting a terrorist attack – the phone company cannot be held liable because it does not censor calls.
President Trump’s executive order doesn’t restrict speech or require Twitter, Facebook or other social media companies to publish any particular speech. It focuses on whether the companies act as publishers exercising editorial control or simply as unbiased platforms for content created by users. The order also asks federal agencies to evaluate whether the companies are applying their terms of service in ways that do not match the published terms of service.
There is plenty of evidence showing that social media companies treat ideas and accounts differently based on political and ideological affiliation. The executive order calls for the Federal Trade Commission and a consortium of state attorneys general led by the U.S. attorney general to examine whether the actual practices of the social media companies are deceptive.
The president’s executive order is a shot across the bow of the major social media firms. The order is an attempt to address the longstanding concern of many on the political right that the liberal activist nature of most social media company employees and the companies themselves has unfairly damaged conservative ideas and accounts. The companies deny they act in a biased manner, but they have been caught doing so in the past.
During the 2018 midterm elections Twitter was exposed for shadow-banning conservative accounts, thereby limiting their reach to a much smaller audience. This affected Republican officeholders and candidates, but was not applied to their Democratic opponents.
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Twitter initially denied this, but was eventually confronted with enough evidence that it had to remove the “quality filter” it had imposed that was causing this problem.
President Trump announced he was considering all options such as the ones in the executive order during a Social Media Summit at the White House last July that I attended.
There are several other aspects of social media company operations not called for in the executive order that could come under scrutiny in the future. One is an investigation by the Federal Election Commission into whether unfair treatment of Republican accounts compared to Democratic accounts amounts to an in-kind contribution by the social media companies to the advantaged campaign.
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The Federal Trade Commission could also look at the potential monopoly of the public information space by a handful of social media companies.
President Trump has been clear that he does not want to trade the control now exercised by the tech firms for the unsubtle hand of a government overseer. But the social media censorship of our shared public information space in a way that discriminates against some ideas is an intolerable situation. Let’s hope the social media companies take the hint and change their ways.