In the column distributed by the Elon University Writers Syndicate, Professor of Law Enrique Armijo argues that President Trump's recent Executive Order on Preventing Online Censorship would do more to limit free speech than to protect it.
The following column appeared recently in the (Greensboro, N.C.) News & Record and the (Burlington, N.C.) Times-News via the Elon University Writers Syndicate. Views are the author’s own and not necessarily those of Elon University.
Don’t feed President Troll
By Enrique Armijo
In the midst of a pandemic that has killed more than 100,000 Americans, and as dozens of cities burn after a police officer killed a defenseless African American man by kneeling on his neck, an argument about Twitter seems trivial.
But thanks to President Trump, here we are.
First, the legal background. As you have probably heard last week, a federal law known as Section 230 enacted by the Communications Decency Act of 1996 gives websites and platforms legal immunity for the user speech that they host.
It’s the reason there is a comment section below newspaper articles or on Facebook when story links are posted there, and the reason Twitter doesn’t have to take down Trump’s tweets casting suspicion on Joe Scarborough for murdering his intern, and the reason you can use Google to find conspiracy videos accusing Bill Gates of developing COVID-19 vaccines to implant microchips into every American.
Without Section 230, none of this speech would be possible, at least online. Possible legal liability of the website for hosting the user’s speech would result in websites, including Facebook and Twitter, taking down any user content that would expose the website to being sued.
For better or for worse, Section 230 has given us the Internet we have today.
Based on his Executive Order on Preventing Online Censorship, however, President Trump seems to think Section 230 is a threat to free speech, not an enabler. Claiming bias against conservatives and ripping mad over Twitter’s fact-check labeling of a tweet of his falsely suggesting that mail-in-voting leads to widespread voter fraud (it doesn’t – I just asked for my mail-in ballot from my county’s Board of Elections, and I strongly suggest you do the same), Trump has charged other parts of the government to decide whether social media platforms are using their power to moderate content “to stifle viewpoints with which they disagree.”
Here is the problem: The labels that President Trump claims would stifle free speech are speech, as protected by the First Amendment as the speech being labeled. So are all the social media content moderation policies that conservatives complain about incessantly—all protected speech. Facebook could take down this newspaper’s post of this column because it disagreed with what I have to say, and neither the newspaper nor I could do a thing about it.
Of course, it wouldn’t, because Facebook wants to be seen as neutral. But that neutrality isn’t compelled by the First Amendment, or even by Section 230.
So it is important to understand that for all the talk of bias by social media platforms, as a First Amendment matter Trump can’t do anything about Twitter or Facebook labeling his posts.
What Trump is trying to accomplish is in the service of less speech, not more—by bullying social media companies with false claims of bias and threats of regulation, he is trying to get them not to speak. And his administration apparently believes that threatening to change Section 230—and by extension, the Internet that we enjoy today—is the way to do it.
And this is the irony that, like all other ironies, completely escapes him. Trump claims Twitter is his way to get around the “fake news” media and speak directly to the people. But in the absence of Section 230, many of the tweets he sends to his 80 million followers would never see the light of day.
The way to “prevent online censorship” isn’t to change Section 230. It’s to keep it out of the hands of politicians who want to stifle the speech of those with whom they disagree.