Donald Trump’s motivation for wanting to remove a congressionally established legal shield afforded to Twitter, Facebook and other social media platforms is poor. And the president is probably just bluffing anyway.
Still, none of these companies deserve this anachronistic protection — if they ever did — from being held liable for the defamatory content that flows through their platforms and on which they make oodles of money.
Trump is miffed especially at Twitter because it recently fact-checked two of his blatherings about mail-in voting and its potential for election fraud. He accused the company and its Silicon Valley brethren of censorship and a bias against conservatives, a growing accusation among Republicans.
As retaliation, he filed an executive order Thursday asking federal agencies, in particular the Federal Communications Commission and the Federal Trade Commission, to study whether they can place new regulations on the companies, arguing that social media outlets are acting as publishers, not just disinterested platforms, when they decide what to take down and what to fact-check.
There are serious legal doubts as to whether the FCC or FTC can do anything about this as long as Section 230 of the Communications Decency Act stands. This provision, enacted in 1996 by Congress, protects internet companies from lawsuits over the content they carry.
But Congress, or the courts, can do something.
When the Communications Decency Act was passed, the internet was in its infancy, and the argument at the time was that it had to be coddled by the government so as to not stifle its development.
That argument no longer holds water. Google and Facebook, and to a lesser degree Twitter, have become the dominant players for online advertising. In the process, they have helped put many traditional media outlets, who do have to worry about libel laws, out of business or in serious financial straits. Online retailing has done the same to brick-and-mortar stores. If anyone needs protection, it’s not internet-based businesses.
Besides, while Twitter may be developing a belated conscience about truth, Facebook — the largest conduit of misinformation — continues to have only occasional scruples. Its founder and CEO, Mark Zuckerberg, said again this week that “Facebook shouldn’t be the arbiter of truth of everything that people say online.”
There are financial, not First Amendment, reasons for this. The more outrageous, the more salacious, the more offensive a post is, the more eyeballs it attracts, which Facebook then profits on through the advertising it sells to reach those eyeballs. Also, if it had to be worried about being sued for libel every time someone smears a former boss or lover, the company would have to spend a lot more money on people — not computer programs — to screen what is posted before it appears. In other words, it would have to act like a responsible provider of information or risk being sued out of business.
The reason Trump is probably bluffing, however, is that the current rules — or should we say lack of them — have made Twitter an extremely powerful tool for him as president and as presidential candidate. Because he has few if any imposed filters, he can spew unrestrained venom at anyone he perceives to be an obstacle or an opponent. He can feed his base a steady supply of lies and half-truths, which he knows they are unlikely to check out for themselves. And because he has more than 80 million followers on Twitter, those in his party who might stand up to him are cowed into fealty or silence.
If Twitter were forced — out of legal necessity — to screen everything Trump posts, his electronic bully pulpit would shrink considerably.