Trump, not Twitter, threatens First Amendment
“Congress shall make no law … abridging the freedom of speech, or of the press.”
— The First Amendment
I have often wondered what the Founding Fathers would make of the world today.
What would they think of the behemoth federal government we’ve built from the 4,543 words in the Constitution? How would they debate the Second Amendment in the context of the Sandy Hook massacre?
And what would they have to say about the First Amendment’s protections of free speech and a free press when so many Americans — including the president — are wielding instant, global publishing tools as weapons against one another?
I wondered that this week as President Donald Trump attacked Twitter after the social media platform for the first time posted a fact-check on one of his tweets.
Some background: Out of worry that the coronavirus would prevent voters from heading to the polls, some states, including Michigan, mass-mailed absentee ballot applications to voters.
Trump, without providing evidence, tweeted the following: “There is NO WAY (ZERO!) that Mail-In Ballots will be anything less than fraudulent. Mail boxes will be robbed, ballots will be forged & even illegally printed out & fraudulently signed.”
The tweet itself was not removed or altered, but a big blue exclamation point appeared beneath the tweet, next to the phrase “Get the facts about mail-in ballots.” Clicking on that phrase directs readers to a series of tweets and stories from outlets like the Washington Post, the Hill, CNN, NBC, and others fact-checking Trump’s claim.
Trump and his supporters have accused social media of bias against conservatives, saying the platforms reduce the visibility of posts from conservatives and unfairly remove or fact-check conservative posts more frequently than progressive posts.
They claim that’s a First Amendment issue.
This, however, is a First Amendment issue:
The day after he was fact-checked, Trump threatened (via Twitter) to “strongly regulate” or shut down social media platforms who supposedly “totally silence conservatives voices.” Later, the president signed an executive order directing his administration to explore whether it should or can be easier to sue social media outlets.
Trump, not Twitter, is threatening the First Amendment.
Let’s begin with this: Trump and his supporters are at least somewhat right. Social media sites appear to perform little more than token fact-checking and regulating of progressives, even though the far left is as brazenly anti-truth as the far right.
But so what?
The First Amendment protects Twitter’s right, as a publisher, to run its site as it pleases, so long as it doesn’t cross the line into illegal activity, such as knowingly providing a platform for drug sales, prostitution, or terrorist plot-hatching. If Twitter wants to be a liberal voice (even while claiming it’s not), it has every right to do so. I think Twitter ought to be fair, but the government can’t force it to do so.
The First Amendment does not require any publisher to publish all voices. It does allow anyone with a voice to become their own publisher. If conservatives feel Twitter is treating them unfairly, the First Amendment allows them to start their own platform. It does not require any platform to host them.
But the First Amendment was created exactly to protect publishers from presidents who threaten to “strongly regulate” or shut them down.
It was written into the Bill of Rights in 1791 to prevent the kind of government censorship early Americans faced under British rule, and its tenets are based off of an American court case 60 years earlier in which an American publisher was acquitted after being charged with a crime for publishing commentary critical of a British governor (here’s a good summary of the First Amendment’s history: https://tinyurl.com/yy9r9s9z).
The first newspapers were openly partisan, many run by a Founding Father.
The Founders made it our responsibility to decide which paper we wanted to believe, and that responsibility extends today to deciding which social media platform we want to support.
Twitter should tread carefully, however.
Newspapers, as publishers who create and select their own content, are held liable for libel if we knowingly and with malice publish demonstrably false information, especially about non-public figures.
Twitter and other social media platforms have mostly escaped that liability by acting as a host of other people’s content, rather than the owner of the content. Twitter has avoided responsibility by staying hands-off.
But the company has put its hands all over the president’s tweets, perhaps setting precedent. It’s not hard to imagine some enterprising attorney down the road claiming Twitter ought to be held responsible for somebody’s libelous tweet.
Justin A. Hinkley can be reached at 989-358-5686 or email@example.com. Follow him on Twitter @JustinHinkley.