Section 230: Donald Trump vs. Twitter

Explaining the law that created the modern internet marketplace of ideas.

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This piece has been adapted from David French’s French Press latest newsletter, which is available to subscribers only. We’re making this version available to all readers. One note: It was sent early Thursday evening, before Twitter appended a warning to one of Donald Trump’s tweets about the riots in Minneapolis.

“Boy, that escalated quickly.” Those words, from the greatest journalist of all time— San Diego’s own Ron Burgundy—have echoed in my mind ever since word leaked that Donald Trump was responding to Twitter’s decision to fact-check a series of his tweets by issuing an executive order targeting social media. Long-simmering battles about social media censorship and social media bias are coming to a head. The president isn’t just tweeting. He’s taking legal action. This afternoon he signed an executive order that takes aim at the speech policies private online platforms..  

What the heck is going on? What should we think about the exchange? Is there a solution to our social media wars?

The issues are so complex that I feel a bit like Inigo Montoya in the film Princess Bride. “Let me explain. No, there is too much. Let me sum up.” The online cannon shot that brought long-simmering tensions to a head was a tiny blue exclamation point attached to two Trump tweets. You can see them here:

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  1. Avatar photo
    Bill

    "...And when it comes to social media companies, I’m asserting that alleged “right” without even paying for the service...."
    You're well aware that you are, in fact, paying for that service, right? Certainly you understand that on social media platforms, you are the product, not the customer? Every time you succumb to messaging directed at you due to information about you that your social media provider has sold to its actual customers, you are paying a price. Just because social media companies are exquisitely adept at hiding that price from you by incentivizing you to chase the squirrels rather than think about the price you're paying, that doesn't mean there is no price.

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  2. Avatar photo
    Show Jay Janney the 🚪!


    Jay Janneyjust now
    Although I am ardently a 1A supporter, I'm not a fan of this law as written. I think it is a poorly written law. To me, the key issue is that some of the terms provided (especially "objectionable") are not adequately defined, rendering them too subjective. I consider the existential threats of the Iranian leaders to be more of a concern than a Donald Trump tweet, but the latter gets subjected to scrutiny.

    That's my concern with "objectionable". It really seems to say that platforms can censor anyone they like for any reason. That troubles me. I also suspect it will lead to lawsuits itself...Better for the law to be revised with clarifications.

    I think it better for Twitter to add some flagging abilities to tweets, where someone can flag it as "porn", "obscenity", "call for violence", etc. Then allow users to set their controls to accept, alert, or reject those. I'd also add a flag the flagger feature where I can see who flagged it. If Hillary Clinton flags a Trump tweet as "call to violence", meh, I probably view it. If Jonah flags it, I might skip it...

    The fact that Joe Biden has concerns about FB being too friendly to Trump seems to be consistent with my concern.

    As for here, add an edit feature so people can make corrections, or can add a clarification....

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    rlritt

    I totally agree. If he doesn't want to be fact checked on Twitter he should not post comments that are not correct. If I said the same thing about CA mail in ballots. Many people would correct me and most people would ignore my comment. However when a government official says the same thing it carries weight because he should know. If its incorrect people need to know that.

    Also Twitter is not Trumps personal propaganda outlet and should not be, unless he pays to place political ads.

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  4. Branson Edwards

    Another David I follow, in this case Frum, makes a counter argument in the latest Sam Harris podcast (which is a great discussion: I would love to hear French and Goldberg in tandem on a Making Sense). Frum in metaphor posits that McDonald's of 40-50 years ago was to the then countless corner diners that sold hamburgers, exactly what Twitter/ FB/ social media is today to the three networks, the NYT, old school journalism (at least what old school journalism was up into the nineties, ie. an objective arbiter to some degree). The difference, Frum points out, is that McDonald's has been willing to say, we'll sell you billions and trillions of burgers, but we are willing to remain just as liable for the sale of rancid meat in any single burger as the corner diner that was selling maybe a thousand. The minute the platform/ publisher "moderates" content it publishes, it must have some responsibility for it, for the simple reason that it may moderate it poorly or even with malign intent. I think we all tend toward, as Harris does, an inviolate right to free speech, but in that case there should be either no moderation/ curation of what I post (outside of child pornography etc.), or moderation/ curation with liability for rancid content. I like Frum/ Harris on this a little better than I do your argument. Accountability is for grown ups.

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      JohnF

      The flaw in your reasoning is that McDonald's is in a position to dictate to their suppliers and they have a limited number of them. They can say "if you sell us rancid beef, we will never buy from you again" and that threat will be enough to ensure that their suppliers adhere to their policies. They can also protect themselves by limiting the number of suppliers and closely controlling their supply chain.
      By contrast. Twitter currently accepts anyone. I can join today and (like millions of other users) post a handful of comments over the next few months. A couple of those comments could be completely toxic smears of another person. However, they are just an atomic portion of the posts that Twitter receives every day.
      To keep our analogy intact, I do not have the ability to go to McDonald's and say, "here's two pounds of ground beef, you must incorporate them into your overall supply." They would tell me to "get lost" (politely, of course) because they retain full control over their supply chain. They are in the business of selling burgers and not in the business of sharing comments and opinions. They are also not in the business of supplying a platform for the purported purposes of sharing ideas.
      By contrast, Social Media (which includes comment forums like this one) is based on the ability to accept commentary from millions of users that is posted almost instantly. This facilitates actual discussions between users that is only constrained by the speed they can type. That is impossible in the tightly controlled "moderated" view of the online world. This world would block the immediate posting of comments and instead suspend their publication until an appropriate legal and content review had taken place. Depending on the volume of posts and available resources, it could take days or weeks for your comment to appear.
      On the plus side, while you were waiting you could always get yourself a Burger!

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  5. Peter Sperry

    When I read David's defense of various aspects of law, I cannot help but think of Dickens's commentary:

    "If the law supposes that," said Mr. Bumble, squeezing his hat emphatically in both hands, "the law is a ass — a idiot. If that's the eye of the law, the law is a bachelor; and the worst I wish the law is, that his eye may be opened by experience"

    All of our rights, enumerated as well as unenumerated, come with certain responsibilities. Foremost among these is the obligation to avoid harming others through the exercise of the right in question. The obligation is not just to avoid intentional malicious harm to others, but to exercise our rights in ways that avoid unintentional harm as well. Society does not ask if we intended to run over the pedestrian in the intersection, it only asks if we exercised our right to travel in responsible manner. We are guilty of negligence if we did not and correctly held accountable for our actions or lack thereof. BTW, society also does not ask if the pedestrian in question happened to be a public figure. While some argument might be made that enumerated rights such as the First Amendment deserve greater protection than unenumerated rights, the liability and negligence laws related to the Second Amendment seem to indicate otherwise.

    It often seems society expects less responsibility in exercising First Amendment rights because of the limited potential for physical harm. The recess playground chant "sticks and stones may break my bones but words will never hurt me" is considered sufficient response which needs no further support from higher authorities. Unfortunately, we learn as adults that repeated irresponsible exercise of free speech can actually do more long term damage than all but the most deadly weapons. Social media, and the platforms that facilitate it, only make this dynamic faster and more harmful.

    So how would Section 230 of the Communications Decency act work if it were applied to other rights? Suppose the first provision said the owner/operator of a pistol range could not be held liable for the gunfire of the shooters. Fair enough, the operator is providing the venue but not actually aiming the rounds or squeezing the trigger. And if the second section said the owner/operator could enforce safety rules within their venue and still avoid liability for the actions of the actual shooters. Still seems good, the operator is attempting to encourage responsible exercise of 2nd Amendment rights but is still not actually firing any rounds. Now suppose the operator of the firing range starts enforcing those safety rules agains people shooting at the left side of the range while allowing people shooting at the right side to blaze away. Oh and the operator has also not bothered to erect any walls or safety burms to ensure rounds fired from their facility do not leave the property and hit nearby buildings, passing cars or pedestrians. Society just might conclude the operator shared at least some of the responsibility for harm done by people using their facility. And if a town council, professor or platform provider consistently allows one group of people to ignore basic safety norms related to exercise of free speech while demanding adherence to such rules from the targets of that speech, it is reasonable to conclude the operator of the speech venue has ceased to be a neutral platform provider and shares at least some responsibility for harm done.

    Yes, as someone who leans Libertarian, I tend to agree with David's suggestion that We enter and use their products according to the rules they set, and if we don’t like it, we click to the competing company across the virtual street." But back on planet earth, this is somewhat like suggesting to someone in 1980 that if they do not like the rules set by Bell Telephone, they should use another service. Yes, MCI was available but not really a viable alternative for most people. Much as I like the Dispatch, as a venue for social media discussion, it is not exactly in the same league as Twitter, FaceBook, Youtube or Instagram. And of course there is still the issue of the pesky rounds escaping the range.

    Obviously, the entire issue is exacerbated by Trump, one of the worst offenders regarding irresponsible exercise of rights of any kind, being the one calling for review of how these platforms operate. But even a blind squirrel finds an acorn once in while. Negligent abuse of First Amendment rights has been tolerated for generations because the physical harm is actually quite limited and nobody really likes public figures anyway. But social media is magnifying the impact to levels rare in the broadcast age and unimaginable in the print age. So it does seem appropriate to ask two questions. When do we insist on the same level of responsibility from someone operating a keyboard as we demand from someone operating an automobile or a gun? And should social media platform providers be expected to enforce the same level of safety as public agencies that provide streets and highways or private sector businesses that operate pistol ranges?

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      JohnF

      Your third paragraph assumes that the protections provided by Section 230 are absolute. They are not. Platforms can still be held liable if they permit illegal activity (for example, permitting child pornography to be posted or allowing sites to exist that recruit extremists). If your hypothetical gun range owner starts to allow customers to shoot up nearby buildings, they can be prosecuted for that.
      There is also a commercial aspect that constrains the behavior of these platforms. In your right vs left analogy on the gun range, aggrieved customers who feel they are being treated unfairly can always go to another gun range (or start their own). If enough of his customers start to head for the door, the gun range owner might be motivated to change his policies.
      Finally, none of these platforms are obligated to do anything by the First Amendment. The First Amendment says that THE GOVERNMENT cannot limit the free speech of the citizenry. It does not force businesses to do the same. If your local coffee shop has a bulletin board where people can post ads or notices, it is completely within its rights to control that content. It can allow people to post ads for piano lessons and cleaning services while removing ads for Drag Queen Story Hour.

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      1. Peter Sperry

        The protections provided by Section 230 may not be absolute but they are much more robust than what is provided for other rights. As you correctly point out, if my hypothetical gun range owner allows customers to shoot up nearby buildings they will be both sued and prosecuted. If Twitter or FB allow customers to rhetorically shoot up the reputations of nearby people, they get a free pass.

        As I mentioned in my comment, the commercial argument would be much stronger if there really were viable alternatives. There really are very few and they are so small as to be almost meaningless.

        Finally, while none of these platforms are legally obligated to do anything; if they do choose to intervene, they have at least a moral obligation to do so evenhandedly. My local coffee shop can certainly control what is posted on their bulletin board. But if they consistently remove items posted by one ideology while allowing those of the opposition to remain, it is reasonably to believe they have chosen a side. And if the items they allow to remain provoke negative results, the coffee shop shares at least some of the moral, and possibly legal, responsibility for those results.

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        1. Avatar photo
          JohnF

          I think we're better off arguing about moral responsibility rather than legal. If governments begin trying to control the content of Internet platforms through legislation, it will either initiate years of litigation, or it will have a chilling effect that will kill off much of the interactive nature of these platforms.
          I think that there's a huge amount of complexity involved in your statement that platforms have a "moral obligation to (intervene) evenhandedly". Where do you start with something like that (and, more importantly, where do you end? If a platform kicks Alex Jones out for posting truly vile things about the Sandy Hook families, are they obligated to find a Liberal equivalent and kick them out as well? Are they responsible for ensuring that for every pro-Liberal posting there is an matching pro-Conservative posting?
          I agree that these platforms should not allow customers to rhetorically shoot up the reputations of other people. Both Facebook and Twitter have been known to kick people out (on both sides of the political spectrum) for doing this. Individually, people who post defamatory statements online can be held legally responsible for those statements and sued.

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    Pat Riot

    I hope the actual content of those tweets aren't lost in in the broader legal conversation.

    In the first one Trump is basically burning our democracy to the ground in a blatant attempt to suppress voting. Trump's mailer to PA residents yesterday *praised* mail-in voting, telling citizens there its great that we have this safe manner of voting in the COVID crisis. Trump is lying and his staff knows he's lying when he insinuates that mail-in voting is fraudulent.

    By telling millions of Americans who believe everything he says without question--and by telling thousands of elected Republicans to support his assertions or he will remove them from office (one tweet from Trump and that's your primary)--Trump is tearing our country apart in a way our foreign enemies only wish they could.

    And the second tweet about sending the US Army to Minneapolis to shoot people absolutely, positively *will* lead to more violence, more damage to property, and possibly worse.

    The leadership at Twitter cannot be a part of this and they are patriots for doing what they can to mitigate this manifest threat to our country in this awful period in our nation's history.

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  7. Gerald Cuesta

    Beautiful. It truly saddens me when I see reasonable people -‘or whom I thought were - continue to support this president because they believe joe Biden and a Clinton cabal are dead set on turning America into Venezuela. I kid you not. They say yes, trump is terrible, but he fights for America. How? Where? We are in dark times and it seems almost perfect in a Steven King horror story way that such a man would be leading the country in those dark times. The fish rots from the head down, right? Or does it? Doesn’t matter. The cliche stands and reflects much of what’s going on in America these days.

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  8. Avatar photo
    Joe Gaeta

    I love David's explanation. I must say, I was one who misunderstood the law. However, it does make me worry even more about our country. As a non-Trumpian conservative, what are we to do about the blatant and obvious Leftist bias of big Tech - companies that quite literally are the gatekeepers of information? If there are not legal remedies, are we lost?

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      rlritt

      I've seen many conservatives on Facebook who post their views all the time. The fact that maybe Mark Zuckerberg may vote for Democrats doesn't their ability to comment. So I'm not sure I understand what you mean.

      Conservatives are not barred in our free country from building their own social media platform.

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      JohnF

      Ann Coulter has 2M+ Twitter followers. Hannity has more than 3M. Trump has over 50M. The FOX News Facebook page is the most visited on Facebook. Breitbart exists. FOX exists. Hundreds (if not thousands) of Right-Wing sites exist. If you are a dedicated Right-Wing tribe member, you can spend your entire day reading things on the Internet without encountering a contrary opinion.
      It seems that is is quite possible to counter big-tech's liberal bias without resorting to legal remedies.

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        Pat Riot

        Yes, yes and yes. And I can't say this enough: nothing is stopping *anybody* from making their own Twitter and their own Facebook. Nothing.

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          Joe Gaeta

          That's like saying there is no serious ramifications of a Leftist academy because there are a handful of small, niche Conservative colleges. Yes, there is nothing stopping Conservatives from developing a new search engine or social media platform; but, much like every school profiled in NR's annual education issue, it would be merely a Conservative Ghetto rather than bringing Conservative/Libertarian ideas into the mainstream to compete on level ground w/ Progressive monolith. Twitter proper would be for the left and those who are non-political. A new, Conservative - or even an merely "unbiased" Twitter clone would be a sliver of the size. That's a bad scenario in most situations, but the very success and value of a social media platform is the organic and exponential growth and proliferation of the user base.

          I accept the fact that there is no legal recourse. But, don't tell me that the bias combined with the outsized influence of Big Tech is not a very serious problem. It most certainly is. Whether something can be done about it legally or culturally or by market is another questions. It's becoming more and more apparent to me that, sadly, nothing can be done.

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            Pat Riot

            Colleges are physical things that cost gigantic amounts of money to make. Facebook and Twitter are little computer programs that could be cloned in a matter of months with some good code jockeys (and I'm sure with some googling you could find a bunch that already exist).

            And maybe ask Fox News is there's any money to be made running a "Conservative [sic] ghetto". If anything, this is the direction our country is going with *everything*.

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            rlritt

            Perhaps Trump followers are not mainstream?

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            JohnF

            If it helps (and it probably doesn't) I am more concerned with the damage to society being caused by the Kardashians and other Social Media "influencers" than I am about persuasive progressive voices on Twitter. As a general observation, Twitter does not appear to be a forum that changes minds. On their podcast, David and Sarah Isgur frequently refer to the reactions of "Left Wing Twitter" and "Right Wing Twitter" to various issues (and never the twain shall meet).
            If the goal is to bring Conservative/Libertarian ideas into the mainstream, the best way to do that is through forums like this, which promote the development of these ideas through the thoughtful advancement of well-considered opinions and a civil discussion of those opinions from various points of view. Unfortunately, far too many "Conservatives" are currently trying to convert their opponents by accusing them of "TDS", insisting that Joe Biden will "destroy America", or labelling them "snowflakes" or worse (and yes, I realize that they have their doppelgangers on the Left).
            For the most part, Facebook and Google are far more interested in sending you targeted advertisements (that they can sell to advertisers at a higher price than non-targeted ones) than they are in trying to shape your political views. Unless you have changed your Facebook settings to stop using "Off-Facebook Activity" (which I strongly recommend) they happily collect information from your travels through various other sites to target you better. If, for example, you are a regular visitor to FOX's website, you are much more likely to see Facebook ads for Depends, Viagra, or Senior Care than the latest missive from AOC.
            It's also important to remember that we don't pay anything to use Facebook or Google. Consequently, we are their product, not their customer.
            None of which has anything to do with Section 230, of course.

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        Joe Gaeta

        The issue isn't right wing tribe members and what they want to see. The issue is the vast middle who are searching online for information and how they are skewed. Lefties and Righties are going to default to their own sources. I'm talking about the non-ideological, the young, the undecided, etc. That's the danger.

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          rlritt

          Yes, that's why the President's Tweet was fact checked. The uninformed may have believed his comment since he is the President about mail in ballots, which could effect the elections. Dangerous indeed.

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            Joe Gaeta

            That argument only works if they fact check all politicians or people of significant influence.

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          JohnF

          That takes us into a completely area that goes well beyond Section 230. As this article points out, this section only protects websites from being sued for comments made by others while also protecting them from being sued if they remove content that THEY deem offensive. It does not require them to be non-partisan, non-judgmental, or non-opinionated. Note that this section applies just as much to this Comments Section as to Twitter.
          I may be misreading your comment (so feel free to correct me) but you seem to be suggesting that these platforms should be forced to be "unbiased". Ideally, they should be forced by the government to be so unbiased that they will begin to propagate your particular point of view. This will then allow the young, the uneducated, and the uninformed to embrace the one true path. It would also be a clear violation of the First Amendment.
          That is a whole different topic that is well outside the scope of this particular piece of legislation.

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            JohnF

            Should have written: "That takes us into a completely different area ..."
            I dream of the day when this forum adds an "Edit" function.

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    3. Dan

      I'm a lawyer in tech, so I think about this quite a bit. I think the Trump/Cruz approach just entrenches the current players. As Goldberg always says, complexity is a subsidy, and Big Tech can afford the subsidy.

      If you haven't worked in tech, you might not realize it, but moderation is hard. At scale, really only the biggest companies have the resources to do it well. If you punish startups for trying to moderate, you're going to get a few websites that harbor pedophiles and nazis (but that nobody else wants to visit) to avoid crossing the line, and you'll have the existing big sites that can really moderate. The little companies won't be able to moderate well enough to avoid liability for bad actors, which actually lessens the chances that new platforms will arise.

      You may get a few websites that get California or New York venture capital money, but even that will just exacerbate the problem.

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        Joe Gaeta

        Moving away from moderation of social media content for a moment...what about editorial decisions like what is trending, what is promoted, who is shadow banned,etc. And what of Google and their manipulation/prioritization of search results? If they cannot be legally challenged (I'm a layman, but I don't how they cold be)....what hope for the future to TRUE conservatives have? I'm about ready to throw in the towel and give up.

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          rlritt

          You only have a problem if you slander or lie or threaten. If you post the comment on Twitter that Trump is the second coming. The platform won't censor you.

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        2. Dan

          What you're essentially arguing, then, is that these platforms have become a public square or a public utility, which requires that they remain viewpoint neutral. Subjecting a private actor to the government's free speech standards is not something we've typically done.

          At the end of the day, even newspapers aren't liable for running one story but not another. We've said that's a problem for the market to solve. Rather, newspapers are liable for violating the law on their own account (or selecting and running articles or letters that violate the law). CDA 230 is about whether the platforms are liable for the speech of the users of the platform.

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            Joe Gaeta

            I am not arguing. I am lamenting. I understand the legal limitations of what can be done to curtail the influence of Big Tech. I am lamenting the fact that the evangelization of conservative and libertarian principles - while always a significant uphill battle - is approaching near impossibility so long as Big Tech (Google more so than anyone else) controls the flow of the vast majority of the information flow. It seems to me that it is a no-win scenario.

            This is similar to how I am not ANGRY that Trump is our President. I am SAD. Sad about what it has done to the conservative movement and the ability to promulgate true conservative and libertarian ideals. I have have believed in the media bias and journalistic malfeasance since I picked up my first NR in the mid 1980s. I have long hoped for a GOP politician to actually push back on the false premises and intellectual dishonesty of the press. But, I am mortified that it is Trump that is the one to do it. It's a lose-lose all the way around.

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          2. Dan

            To be clear, I'm seriously understating my concern about trying to hold social media companies to a viewpoint neutrality standard. Setting aside how you'd even accomplish that legally, I think it's a really bad idea for all the reasons I think socializing or utilizing almost any industry is a bad idea.

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      Pat Riot

      Gay Trump supporter Peter Thiel is on Facebook's board. I don't think there's any "obvious Leftist bias" there, nor at Twitter.

      And these are private companies: you are free to make your own Facebook and your own Twitter (and these products already exist in any case). This is not the 1970s and we are not stuck with one set of copper phone lines that one company has to own.

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    5. James D

      I think it's worthwhile to remember that any legal cudgel will inevitably end up in the hands of the other side, and will be wielded with just as much aplomb. The happy medium is what we have already, where social media companies are largely hands-off in censoring content on their platforms.

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      1. tla

        Exactly. I think there is conflation of the what is clearly internal cultural leanings of big tech companies with what they actually do on their platform. The former is a cultural issue that you can't with laws. The latter despite vociferous complaints on the right, I don't really see. Trump owes much of his success to these social media companies!

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  9. BrianMA

    To your last point, I think it would be great if Twitter actually applied it's rule to Trump, but they never will. He drives way too much traffic and it would cause way too much outrage. It may be cowardly, but I think they'll continue their current approach

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    1. James D

      I actually differ here. I think that if he's going to continue pushing this agenda, they have nothing to lose by ceasing to give him preferential treatment and treating him like just another user. If he gets a real taste of what the internet without Section 230 will be like, he may not like it so much!

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      Joshua Smith

      The latest development in the Trump-Twitter saga is they marked a recent tweet as a TOS violation, and hide the contents until you click to proceed. Get ready for some legal proceedings for David And Sarah to dive into in the coming days.

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      1. BrianMA

        Wow, I guess I stand corrected. If this wasn't all so depressing it would make for great quarantine entertainment

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    JDW

    It's articles like these that make me think you are a national treasure David. I am really appreciating the legal experience you bring to these topics. I never miss the Advisory Opinions podcast. I appreciate what Sarah brings to the discussion as well. Thank you again!

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