Twitter makes a lot of people stupid and angry, so it’s fitting that the current debate about Twitter should be so full of stupidity and anger.
First, some context. President Trump frequently tweets or retweets things that are untrue. He also tweets things that are true. One thing that makes all of this so unpleasant is that a great many of the president’s foes feel compelled to claim that the true things are false, and his fans are compelled to argue that the false stuff is, at least in some sense, true. (Another factor that makes things even more unpleasant: The president often tweets offensive things, and the same dynamic of “No, it’s not!” vs. “Yes, it is!” plays out.)
More broadly, many on the right have convinced themselves that Twitter “censors” conservatives on the platform, which they think is not only wrong but some sort of violation of the First Amendment. It’s not. Many on the left think Twitter doesn’t censor enough, specifically in the case of the president himself.
It was against this backdrop that Trump tweeted (again) that governors must not use mail-in ballots during the pandemic. The two-part tweet began, “There is NO WAY (ZERO!) that Mail-In Ballots will be anything less than substantially fraudulent. Mail boxes will be robbed, ballots will be forged & even illegally printed out & fraudulently signed.” He concluded by declaring, “This will be a Rigged Election. No way!”
The widespread concern is that Trump was setting the stage for claiming if he loses in November that the result would be illegitimate. Twitter tagged the two Trump tweets with a notice, “Get the facts about mail-in ballots,” that linked to some fact-checking articles. Some of those articles made it sound as if ballot fraud doesn’t exist, which is untrue, but mail-in balloting is not rife with fraud the way Trump insists.
The president got very angry and started yammering about how Twitter was trying to interfere with the election, censor him, etc. “Republicans feel that Social Media Platforms totally silence conservatives voices,” he (awkwardly) tweeted. “We will strongly regulate, or close them down, before we can ever allow this to happen.”
On Thursday, the president signed an executive order that could punish social media platforms by removing the legal protections that spare them from being responsible for what users say on them. In other words, if you defame someone on Twitter, Twitter could be sued, too.
Again, this is all so stupid.
The president is using his free speech on Twitter to claim that Twitter is denying him free speech. Trump claims that adding that link to his tweet is a form of censorship, which it isn’t, given that the tweet still stands and a link providing more information isn’t in the same ZIP code as censorship.
Moreover, Twitter isn’t a government entity, so in a legal sense it can’t commit censorship. The First Amendment binds what the government can do, not private companies. Trump’s executive order comes far closer to censorship because it would effectively kill platforms dedicated (albeit imperfectly) to free expression.
Meanwhile, Twitter has created a huge problem for itself, because now, whenever it doesn’t fact-check a statement, it leaves the impression that Twitter is vouching for the content.
David French, my colleague at The Dispatch and a veteran First Amendment lawyer, argues that Twitter should simply treat Trump like any other citizen. I agree, but given that Trump is incapable of moderating his behavior, we’d still end up in the same place, because treating Trump like any other user would eventually result in some of Trump’s tweets being deleted or his account being suspended or banned, and that would make him even angrier.
Since Twitter has already taken the plunge, I think a better response is to turn its “get the facts” thing into a policy for all government officials—at home and abroad. (I’m looking at you, China.) Trump’s statements are, by law, official statements of the president. That means they aren’t like a normal citizen’s tweets. Under the First Amendment, Twitter has every right to comment on government statements, including on its own platform. If it editorializes in a biased or misleading way, that is its right. But if it did, everyone would be free to disregard its statements as they see fit.