Social media and the 1st Amendment (Formerly: Trump seeks to punish Twitter) (1 Viewer)

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    superchuck500

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    Despite Twitter historically granting Trump far more latitude with violations of Twitter terms of service than average members would get, a recent tagging of a Trump tweet with Twitter's fact-checking tool enraged the president. He announced yesterday that he will take retribution via executive order seeking to remove statutory legal protections in place for social media companies, and instructing his executive agencies (the FCC an DOJ) to formulate plans to take legal action against social media companies for "political bias."

    A draft of the order has been released . . . and it is troubling to say the least.

    According to analysis, the order will "reinterpret" a key provision of the Communications Decency Act (Sec. 230) that previously protected social media companies for responsibility for the content on their sites. That section works by declaring that social media companies are not "publishers" of the content posted by third-party account holders (members) - and it is statutory. The Trump order apparently also instructs the FCC to create regulations to make this new "interpretation" of Sec. 230 actionable against social media companies. In addition, the order apparently instructs the FTC (which is not an executive agency) to report to Congress on "political bias" in social media - and to consider using the reinterpreted Section 230 to bring actions against social media companies for political bias.

    Apparently the order also instructs DOJ to work with state AGs to determine what state laws may be used against social media companies for political bias.

    So yep, a Republican president is attempting to restructure the statutory framework that has allowed American social media companies - which are private business by the way - to grow into corporate giants without having to be answerable in court for the content posted by their members. And will do so based on the notion that private business should be held to some standard of political neutrality.

    Further legal analysis will be needed, but it seems highly suspect on several important grounds (including the fact that Section 230 is statutory and is very explicit - it's not subject to rewrite by executive order). More importantly this idea that "political bias" can be defined and made actionable by federal agencies against private companies seems a patent violation of the First Amendment.



     
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    Trump's quest to say whatever the hell he wants to on Twitter could cost him some money according to Peter Schuck...
    I know Rawstory is not the best source but the points that are made seem reasonable. Chuck or Jim or other attorneys here can feel free to chime in on this.
     
    Trump's quest to say whatever the hell he wants to on Twitter could cost him some money according to Peter Schuck...
    I know Rawstory is not the best source but the points that are made seem reasonable. Chuck or Jim or other attorneys here can feel free to chime in on this.

    The emotional distress claim seems bunk - that's a state law claim so it would depend on which state's law applied but generally IIED claims require the tortfeasor (the person who committed the alleged wrong) engage in extreme or outrageous conduct. In DC, for example, the conduct must "be so outrageous in character, so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community." :shrug:

    The libel/defamation angle is a bit more viable. There, the elements are going to be publication of false statements about the victim that damage the victim's reputation. Because Joe Scarborough is a public figure, the additional element of 'actual malice' is required. Clearly some of the elements are present here and generally speaking, accusing someone of a serious crime is nearly per se defamatory when the person who publishes the statement does it knowingly. But at the same time, Trump didn't really say Scarborough killed Klausutis - he suggests it and everyone knows what he means but it's also significantly nuanced. Plus, pursuing the claim would mean he has to offer some level of proof for the statement's falsehood. While that seems like a low burden here, it would still engage on the very idea that Trump is trying to proliferate.

    The bottom line is that this kind of behavior from Trump is gross and it's just so sad and unacceptable that a person in such a position engages in that kind of thing (for what are obviously deep personality flaws), but it isn't likely a legal liability.
     
    This is the funhouse mirror equivalent of trolling a message board for years, being so detached from reality, then getting so triggered the one time Andrus moderated your post that you decide to start crying at work to your coworkers and file an absurd defamation report with the cops in real life.

    ...except in this upside down world the person being triggered has the nuclear codes and decades of unchecked executive power growth in the most consequential office in the world.
     
    I wonder what effect this will have on message boards and activity posted by members being moderated/fact checked/deleted.
     
    This is the funhouse mirror equivalent of trolling a message board for years, being so detached from reality, then getting so triggered the one time Andrus moderated your post that you decide to start crying at work to your coworkers and file an absurd defamation report with the cops in real life.

    ...except in this upside down world the person being triggered has the nuclear codes and decades of unchecked executive power growth in the most consequential office in the world.

    Wasn't that Mikeran?

    Kidding.
     
    Trump crying about his First Amendment rights being violated demonstrates he doesn't understand the First Amendment, or thinks his supporters don't. Twitter putting a "fact check" on his tweet doesn't violate the First Amendment. Trump trying to keep Twitter from "fact-checking" DOES violate the First Amendment.

    We'll see where this goes. I'm inclined to agree with those who think the EO in and of itself is going nowhere, but rather Trump is simply trying to bully Twitter for the temerity to fact check his tweets. Dude lies as a matter of habit, and he doesn't want anyone on media he thinks his followers might see actually pushing back on his lies.

    But in the larger view, the fact Trump focuses on a couple of Twitter fact checks as a reason for immediate action, rather than dealing with a pandemic that has killed over 100,000 Americans and wrecked our economy, is very, very telling.
     

    The "persecuted victim" mentality is pervasive among Evangelicals, even though the vast majority of the country identifies as Christian. That attitude is also pervasive among "conservatives" as a whole, and it's not coincidental Evangelicals are a major and influential part of that group.
     
    The "persecuted victim" mentality is pervasive among Evangelicals, even though the vast majority of the country identifies as Christian. That attitude is also pervasive among "conservatives" as a whole, and it's not coincidental Evangelicals are a major and influential part of that group.

    Yeah, that’s a good observation. The secular version is that “don’t tread on me” crowd. Believing oneself to be persecuted causes a strong emotional response.

    Of course that’s not all conservatives, but that populist wing certainly seems to thrive on it.
     
    But if he shuts down Twitter, how's he going to retweet "the only good democrat is a dead democrat"?
    Yeah, it's ironic that he's attacking the very platform that allows him, in the first place, to spout out whatever comes out of his fever brain, which he obviously thinks is a great thing for him.

    But this is really about him trying to bully that platform for daring to make even weak efforts to fact check his lies. He sees his Twitter feed as his own reality TV show in which he can feed his followers all manner of lies and expect them to swallow it. Trump can simply ignore CNN since he knows his hardcore followers don't watch it. On the other hand, his followers will see Twitter fact checks. He can't have that, since the "reality" he's selling isn't fact based.
     
    Between this kind of nonsense and accusing people he watches on his TV of murder, it's clear that Trump finally just got bored with COVID and moved on. Twitter, despite allowing Trump to send misinformation out on a daily basis to purportedly 75 million followers (even though many are fake), is So Unfair and needs to be dealt with via Executive Order. Just a continuation of the dumbest possible things being done in the dumbest possible times by the dumbest possible people. And if anyone disagrees with this statement I just made on this message board they are violating my constitutional rights so be warned.

    Trump has nothing to do.. He's tweeting insults and accusations and conspiracy theories while 100,000 Americans die of coronavirus. He's attacking Twitter, accusing Joe Scarborough of a 20 year old murder, obsessing about Obama and trashing Columbia University... Anything but work.

    And, his eldest son is hunting effing SHEEP.
     
    Despite Twitter historically granting Trump far more latitude with violations of Twitter terms of service than average members would get

    It appears Twitter is now taking a closer look at Trump’s tweets - per its TOS. Yesterday Trump said the only reason why he even has Twitter is because the media is so dishonest about him. Of course we all that know that is false - Trump thrives on Twitter because it gives him a 24/7 platform to communicate his views and agenda in a way no other media ever could.

     
    So, I'm confused. If the idea of this EO is to make social media companies a "publisher", now responsible for the written works of the members, wouldn't that great a stronger reason for them to edit, fact check, and remove posts to limit liability? I mean, face court cases due to what someone like Trump posts, or just remove their account? Right?

    I haven't read the order, or given it a lot of thought... I'm just going off the OP.

    p.s. I haven't read the whole topic yet in here either. So, maybe I'm being captain obvious here.
     
    So do I have this right? Someone quickly correct me if I'm wrong. Trump signs an unconstitutional (my opinion, yet to be tested) EO that seeks to get rid of protections that social media sites have against being sued for the content on their sites. As a result of the new exposure that Twitter and FB might have for false, misleading, slanderous, libelous, defamatory posts made on their platform, they might seek to delete such posts in order to protect themselves.

    So Trump got mad because he lied and got called on it by twitter so now he signs an EO that will cause the lies that he's posting on twitter to be deleted.....the very thing he signed the EO (in his mind) to stop.
     
    I am glad some liberals are now fully behind corporations having free-speech rights - even if they might not see their inconsistencies.
    This is so ill-conceived that I doubt there will be any serious chance of it holding up if any action is attempted. But it is still very damaging and downright frightening.
    I see it less about Twitter's free speech, and more about individuals.

    To me, Twitter isn't gaining or losing free speech, they are being told they are responsible for the content posted on their site. So, they now have stronger reason to act as an editor for individuals. This action suppresses individual free speech further. I say further, because social media platforms don't give complete free speech rights, as they are private and can limit certain things.

    I see this as just saying Twitter, Facebook, etc shouldn't be on the hook for what others say, maybe within some limits.
     

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