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Trump vs. Twitter: Who is Right?

June 02, 2020

“Some people’s idea of free speech is that they are free to say what they like, but if anyone says anything back, that is an outrage.” – Sir Winston Churchill

President Trump, known for testing the boundaries with his Twitter account, tweeted that there is no way mail-in ballots will not be substantially fraudulent. Twitter deemed the tweets “potentially misleading.” In response, Mr. Trump issued an executive order aimed at limiting social media companies’ immunity for information that users share on their platforms.

The order targets a law known as the Communications Decency Act. Section 230 of the act deems internet service providers non-publishers, which grants them immunity from liability for false or defamatory comments made by their customers on the internet. Courts broadened the law’s protection to social media websites for hosting the words of their users. Trump is attempting to repeal Section 230, but he does not have the power to do so.

Part of Mr. Trump’s argument is that social media platforms arbitrarily limit conservative speech. However, companies like Twitter cannot violate the First Amendment—it is a limitation on the government only. Regardless, Trump’s order begins with a reference to the Freedom of Speech Clause of the First Amendment. It goes on to state that the practice of limiting speech is “fundamentally un-American and anti-democratic. When large, powerful social media companies censor opinions with which they disagree, they exercise a dangerous power.”

Of course, the “large, powerful social media companies” are a big reason why Trump rose to President. Trump has tweeted over 20,000 times since announcing his candidacy in 2015. More recently, he used Twitter to make it clear that he wants to limit mail-in voting in the interests of the Republican Party. Now he uses Twitter to claim that mail-in voting will lead to fraud with no supporting evidence.

Having no supporting evidence does not mean President Trump is wrong, but one cannot help feeling that this latest move against social media companies is just another attempt by Mr. Trump to support his perpetual claim of “Fake News.” Regardless, it is well within Twitter’s rights to provide its users with alternative news sources that question the veracity of the President’s comments. An executive order trying to repeal Section 230 of the Communications Decency Act cannot change that.

Congress vetted and passed the very law that Mr. Trump is challenging with his executive order. It is offensive that a President can issue an order reinterpreting an unambiguous statute that Congress passed and has been interpreted by courts for over 20 years. This should not be taken lightly. As Jessica Rosenworcel, a Democratic FCC commissioner, recently said: “Social media can be frustrating…[b]ut an executive order that would turn the Federal Communications Commission into the president’s speech police is not the answer.”

Twitter is not backing down from the battle. On May 29, in reference to the Minneapolis riots, President Trump tweeted, “When the looting starts, the shooting starts.” Twitter hid the tweet behind a message stating the tweet violates “[t]he Twitter Rules about glorifying violence. However, Twitter has determined that it may be in the public’s interest for the Tweet to remain accessible.” Given that Trump is averaging over 28 tweets per day this year, this ongoing feud will probably not go away any time soon and may set a precedent for politicians to come.

Americans should be wary of any political figure who uses the power of government to target perceived enemies in the private sector. Free speech is a foundation of our society and vital to a healthy, vibrant democracy. It should be protected at all costs — no matter which political party holds power.

About the Author

Curtis J. Mase is a Board Certified Civil Trial Lawyer and the founder and managing shareholder of Mase Mebane. He represents serious personal injury victims focusing on maritime & admiralty, sexual assault, negligence, and products liability matters.

Curtis is Board Certified by both the Florida Bar and the National Board of Trial Advocacy, and is AV-Rated by Martindale-Hubbell.

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