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Trump Shoots Himself In Foot With Twitter Executive Order

[ Posted Thursday, May 28th, 2020 – 17:23 UTC ]

President Donald Trump executed a double-reverse bit of irony today, by signing an executive order that he thinks will threaten social media companies like Twitter into allowing conservatives to spout whatever hate-filled or wildly inaccurate rants they wish to. However, as with many things Trump does, his executive order might just wind up giving companies like Twitter more incentive to police Trump's own tweets. In other words, by attempting to "fight back," Trump may in fact have just shot himself in the foot.

I've been writing about this all week, since I am a fierce advocate of the First Amendment, so this stuff is important to both me and my website. I am free to write about this (or anything else, for that matter) due to the protections the First Amendment guarantees me, in fact. So it's an issue near and dear to my own heart. My apologies for writing three columns in a row on the same subject (because as usual, there are plenty of other important subjects worth discussing this week), but Trump just keeps digging himself a deeper hole, so it behooves me to point it out in no uncertain terms.

Trump's executive order is pretty esoteric, since what he is attempting to do runs so counter to the protections of free speech and a free press that the First Amendment guarantees. Trump, in essence, wants social media companies to never police anything he or his followers post. That's what "free speech" means to Trump. But this just isn't true. Far from it, in fact, which I wrote about at length yesterday. In a nutshell: only governments can ever censor free speech. Private companies simply do not have the power to do so, and never have.

At the heart of the legal spat is how internet companies (including but not limited to social media companies) are treated under the law. Are they more like the phone company or more like a newspaper publisher? The internet companies have long argued that they should be treated like the phone company. If you get an abusive call or even an obscene phone call, you cannot sue the phone company for damages. What is said over their wires is completely out of their control, therefore they bear zero liability for whatever is said by anybody. Conversely, newspaper publishers and editors are considered "gatekeepers" of content, because they exercise full control over what gets printed and what gets rejected. So they can be sued for things like libel or allowing open threats to be published.

What Trump wants to do -- what his executive order attempts -- is to remove the protections that internet companies have enjoyed and have the law treat them more like publishers than the phone company. It is an open question whether this will even succeed, and another big open question as to whether it is remotely constitutional, but we'll set those aside for the time being. Plenty of others are dissecting these facets of Trump's executive order, so we see no need to add anything to this debate at the moment.

Instead, let's just assume for the sake of argument that Trump does succeed in strongarming both the Federal Trade Commission and the Federal Communications Commission into his pet interpretation of the existing law. Again, this is an open question because both the F.T.C. and the F.C.C. are suppose to operate independently from the White House. But let's assume that they go along with Trump.

Trump thinks that he (or his pet Justice Department) will then be allowed to sue companies like Twitter for exhibiting "bias" against conservative voices. He will argue in court that Twitter and the others are providing a public space -- a virtual town square -- and that they should be barred from silencing any political voices with which they do not agree. A city, for instance, cannot deny a permit for a march or rally just because they don't like what the organizers are going to say at it. They must be content-neutral in such decisions.

But Twitter is not a city. In fact, Trump's order is intended to make the law treat them as publishers. And publishers have not had mandated fairness thrust upon them since the time of Ronald Reagan. Back then, broadcast licenses for the public airwaves (for radio and television) were only issued to companies that hewed to what was called the "Fairness Doctrine." This mandated that all points of view would be heard on the airwaves. So if a radio station hosted Rush Limbaugh's show in the afternoon, then it also had to host a liberal political talk show in order to balance things out. Denying one side of a political argument was not allowed.

Conservatives railed against this doctrine, and cheered mightily when Reagan got rid of it in 1987. They interpreted free speech to mean the government could not force a television or radio station to air material that the owners did not agree with. They had a good First Amendment argument to make, even though the airwaves (and access to them) were held by the government as a public trust. Trump's order today is attempting to force an "Internet Fairness Doctrine" on the social media companies, in total opposition to orthodox conservative thought for the past half-century.

But the real upshot of Trump's action today -- if it ever becomes reality, that is -- would be to incentivize social media companies to be extra-vigilant in policing the content on their site. If all of a sudden Twitter was liable for every tweet posted, then they would have to bend over backward to make sure that tweets with any possibility of liability were removed from their site as quickly as possible. If their bottom line is at risk, then they're going to err on the side of caution, obviously.

What this would mean for Trump is that any tweet he posts which Twitter could reasonably be sued over -- tweets that harass individuals, tweets that threaten anyone or any group, tweets that are libellous, tweets that are obscene, tweets that are provably false, and all the other mischief Trump dreams up and tweets out on a daily basis -- would be immediately removed. There's simply no other option if companies like Twitter will be held legally accountable for users' content. They'll have to police this content with a fine-toothed comb, in fear of lawsuits being brought against them. They won't be worried about showing any bias, they'll instead be worried about all the people Trump routinely attacks personally suing them.

This is why Trump is really just shooting himself in the foot. If Twitter is legally treated as a publisher, then they are responsible for content, plain and simple. And if they're going to be held liable for their content, then they're going to have to be extra-cautious about what they allow. Which means dozens of Trump tweets each and every week will be removed from the site. "What else can we do, if we're liable to be sued for these statements?" the companies will say.

If Twitter and other social media companies are going to be treated as publishers, then they will be forced to exert editorial control over the content. There's just no other interpretation possible. And newspapers exert editorial control each and every day, by not publishing all sorts of things people send to them. Importantly, they can do so for any reason under the sun, even nakedly political ones. Neither Donald Trump nor the federal government can shut down the New York Times or the Washington Post because they print things Trump doesn't like (or, conversely, don't print things Trump wants printed). If Twitter is to be treated the same way, then they will have the constitutional freedom of the press on their side, whether Trump now realizes this or not. Which actually strengthens their argument in court, since the government cannot shut down a newspaper it doesn't like.

Because it all comes down to the First Amendment. The Bill of Rights was necessary to ban the government from ever infringing on certain rights all Americans enjoy. Freedom of speech, the press, and assembly are all bedrock tenets of the American credo. The government can't shut down a newspaper because it doesn't like what is printed, period. The government cannot force an organization to admit people who don't share their beliefs, because the freedom to assemble with others of like mind is guaranteed. The government cannot force a company to shut down because it either allows or disallows certain speech within its space. And you can't sue a newspaper for political bias, but you can sue one for printing libel or threats against you.

Donald Trump doesn't seem to understand any of this. This is why he just signed a hastily-drafted executive order that will -- if fully implemented in precisely the way Trump seems to want -- have the exact opposite effect of what he wants to see happen. If Twitter is going to be legally treated like a publisher, then the first thing they're going to do is to start blocking and deleting any Trump tweets that could possibly be actionable in a court of law. And that covers a whole bunch of what Trump regularly likes to tweet about. Trump is, in essence, forcing Twitter to begin removing his tweets on a regular basis. Or, to put it another way, today Trump took careful aim and then shot himself in the foot.

-- Chris Weigant


Follow Chris on Twitter: @ChrisWeigant


34 Comments on “Trump Shoots Himself In Foot With Twitter Executive Order”

  1. [1] 
    Kick wrote:

    CW: I am free to write about this (or anything else, for that matter) due to the protections the First Amendment guarantees me, in fact.

    I know, write!? <--- intentional spelling... as well as equally free to NOT write about whatever you don't want to write about, right!?

    You know it. :)

  2. [2] 
    Kick wrote:

    CW: Or, to put it another way, today Trump took careful aim and then shot himself in the foot.

    Or, to put it yet another way, less than 24 hours after Twitter simply put a fact check on a tweet of a user on their very own website, Trump had already signed an Executive Order attempting to censor a private company. Now imagine how many lives of the 100,000+ of our fellow Americans could have been saved if President Self-Centered Narcissist had cared enough about the citizens of the United States as much as he cares about himself... you know... his job, honoring the oath he swore to "preserve, protect and defend the Constitution of the United States."

    Let the whataboutism begin. If Obama had done anything like this, the GOP's tiny little brains would have exploded, and can you imagine if Obama had ordered churches either opened or closed how triggered the righties would have been!?

    Every single one of these complicit right-wing cowards needs to be voted out of office along with Comrade Trump. Every. Single. One.

  3. [3] 
    Kick wrote:

    Meant to say: Excellent rant, CW!

  4. [4] 
    Elizabeth Miller wrote:

    Fiddling while Rome burns.

  5. [5] 
    MtnCaddy wrote:

    Yep, this executive order doesn't appear well thought out. Perhaps it ought to be filed in the ever expanding, "Distract from coronavirus and our new Great Depression" file.

  6. [6] 
    MtnCaddy wrote:

    I suspect we won't be hearing about this much in 48 hours. Except on Twitter. Which I don't do... because Don Harris pointed out that "twit" right there, in plain sight.

  7. [7] 
    MtnCaddy wrote:

    My Dear Kick

    Nicely ranted!

  8. [8] 
    dsws wrote:

    In the previous column, CW wrote:
    In the first case, no company or corporation can ever censor free speech, because they are not the government.

    This is the most heinously incorrect thing I've ever seen you write.

  9. [9] 
    Elizabeth Miller wrote:

    Was that all supposed to be in bold?

  10. [10] 
    Elizabeth Miller wrote:

    In other words, Trump on Twitter is the very, very least of our concerns. Or, at least, it should be.

  11. [11] 
    Kick wrote:


    In the previous column, CW wrote:
    In the first case, no company or corporation can ever censor free speech, because they are not the government.

    This is the most heinously incorrect thing I've ever seen you write. ~ dsws

    Nah. It appears you're just seriously overthinking it, dude.

    In the first case, no company or corporation can ever censor free speech, because they are not the government.

    ~ CW



    I hear you, of course... but try reading it again in context with the operative words there being "censor free speech" and not just "censor."


    Contexts -- you yelled it right up there -- so obviously a "company or corporation" has a right to "censor" you because you enjoy no "free speech" on their "turf." A "company or corporation" that enjoys the right to "censor" you doesn't exactly "censor free speech" since your speech ain't free.

    Try not to overthink it. I can scream it if you need me to.

  12. [12] 
    Mezzomamma wrote:

    It looks to me as though different definitions of censorship are being used here; Chris's is more technical and restricted in scope and dsws's is more general. And there are arguments for both definitions.

    Government censorship has a long and dishonorable history, including breaking and burning presses and imprisoning publishers and writers. It also includes the holes cut in my father's letters home from the Pacific during WWII--soldiers could write anything, but place names or any other information deemed sensitive by the censors was literally cut out.

    There is an unofficial censorship of the type dsws seems to mean: often an unspoken social agreement which denies a voice to certain groups. Contrary to right-wing whining, historically it has rarely if ever been conservative, white, Christian male Americans; it has mostly been women, ethnic minorities, other religions (Catholics at one time) and what could loosely be called left-wing views. There is no a shortage of venues for conservative, white, Christian male voices at present.

    Some people (and I particularly remember online conversations 20 or so years ago) consider any limits on their own language, even when abusive and threatening to others, as censorship. This included left-wing males who might not have considered using racist terms, but used a lot of sexist language. There's actually still quite a lot of this online. I am not criticizing anyone here, by the way, I am thinking other, earlier, contexts.

  13. [13] 
    BashiBazouk wrote:

    Pass the popcorn this is going to be fun...

    It will depend on the interpretation and how literal and strict it is, but many forms of commercial speech and pornography are technically protected free speech.

    If overly literal or pursued by industry lawyers for possible profit things like copyright violations could come in to play requiring owner moderation to fend off liability. Michale's copy and paste of most an article, for example...

    I personally think it's going to get shot down pretty quick. Places like Reddit basically can't exist with this order (or get very interesting). At least not in the United States. And this is where Trump really does not understand the internet. We don't own it or completely control it. We have an oversized influence over it, but there is no reason to think that must be permanent. Twitter already has an invitation from Germany. Is Trump really going to drive out a profitable subsection of our tech industry to another country just as we enter a recession or possibly a depression?

    Does he not realize that conservative outlets and communities on the internet are some of the most exclusionary out there?

    But in the end let us not forget or be distracted by the fact Trump's incompetence is killing Americans every day.

    102,917 Americans dead from Coronavirus and counting...

  14. [14] 
    John From Censornati wrote:

    As always with Big Orange, the motivation is not very complex. Give the corona virus warrior cult some red meat and let them wash it down with Flavor Aid. It's all for the show. There doesn't have to be an investigation. An announcement will do.

  15. [15] 
    John From Censornati wrote:

    It's already time to move past this. Let's move past police thug snuff films too. It's important to focus on what's important - Target stores are burning. If we allow these anarchists to vote by mail, Joe Biden will give them free stuff.

  16. [16] 
    Bleyd wrote:

    I'm not sure that the results mentioned in the article aren't exactly what Trump wants. If Twitter is forced to police Trump's tweets and remove them, it could pretty easily be spun to play into Trump's favorite conspiracy theories about the "Deep State" trying to stop him. While any reasonably informed person would know that such a claim is ridiculous, the cult of Trump is not known for being reasonable or informed. They are far more likely to believe whatever he says than the facts of a situation, and such a conspiracy theory would undoubtedly whip many of his followers into a frenzy. Trump doesn't have enough raw popular support to be re-elected, so his best chance is going to be winning the turnout battle, and firing up the base has always been his favored method of doing so.

  17. [17] 
    C. R. Stucki wrote:

    It's ridiculous for the hyper-sensitive lefties of the world, who never grasped the old "Stick and stones . . " doggerel to try and impose responsibility for what the public posts on public bulletin boards ('social media forums' in the electronic age) on the people who provide the boards.

    If your tender feelings can't stand being exposed to a racial epithet or 'hate speech' type stuff, don't read what bothers you.

  18. [18] 
    Elizabeth Miller wrote:

    Does anyone really care about what AG Barr is up to during the constant distraction?

  19. [19] 
    Mezzomamma wrote:

    [C.R. 17] Trump is hyper-sensitive and his tender feelings can't stand being exposed to corrections of his mistakes and lies. He could just leave Twitter if he doesn't like it.

    I think you mistakenly typed 'lefties' for 'right-wingers' and "can't stand being exposed to a racial epithet or 'hate speech' type stuff" for 'can't stand seeing any opinion or image which doesn't reflect their narrow viewpoint in every respect.'

  20. [20] 
    C. R. Stucki wrote:


    You miss my point. He shouldn't have to "be exposed to corrections", etc. BY TWITTER.

    It should be YOU AND I (other forum users) who correct his mistakes and lies, not the people who put up the bulletin board.

  21. [21] 
    MyVoice wrote:

    [15] JFC

    We wouldn't even have to be bothered with this "police thug snuff" stuff if only Daryl Gates, the LAPD Chief from 1978 to 1992, had published his scholarly theories on the differences between Black and normal people with respect to choke holds.

    We could have, as you suggest, just moved along to the real things of moment.

  22. [22] 
    Kick wrote:

    C. R. Stucki

    You miss my point. He shouldn't have to "be exposed to corrections", etc. BY TWITTER.

    Your so-called "point" in [17] included your typical standard knee-jerk usual dig at "lefties"... so same shit different day coming from Podunk.

    The fact is, companies set their own rules that anyone who uses their "facilities" are subject thereto and generally agree to be bound when they sign up for an account... you know, the "check the box" routine and/or "by posting here" you agree to follow these/our rules. If "he" or anyone else doesn't want to "be exposed to corrections, etc. BY TWITTER," while he's ON "TWITTER," then "he" shouldn't have "checked the box" or posted on "TWITTER."

    It should be YOU AND I (other forum users) who correct his mistakes and lies, not the people who put up the bulletin board.

    Bullshit! House rules. Rule Number 1 is "nobody smokes tobacco in my house." If you come in my house with a lit cigarette, it'll be me asking you to put it out and not the other house guests. This ain't rocket science.

  23. [23] 
    TheStig wrote:

    Trump's threats are little more than a slap suit against Twitter. Corporations like Twitter are people as far as US Law is concerned. More so now than ever in US history. Nobody can tell the corporate editor what to write or not to write. A letter to the editor need not be printed. Twitter's fact check is an editorial comment. It's suggesting that Twitteroids might want to do some fact checking. Twitter is not yelling fire in a crowded theater. There is no case for slander or libel. No guns are being confiscated.

    Sorry Donny Boy, but it is very unlikely that you win this battle in the courts....unless you consider ginning up your base to be a higher form of winning. Twitter is worth 4 Billion. I think they can afford top notch legal representation. Trump gets Rudy and the governmental equivalent of "Public Defenders."

    Of course, Trump can decide to stop tweeting....but that would be like cutting off his Little Donny to spite his face. Trump needs Twitter more than Twitter needs Trump. Best for POTUS to just settle down on the toilet seat and blast off a few outrage tweets before shambling off to watch Fox & Friends.

  24. [24] 
    C. R. Stucki wrote:


    OK, that system ("House Rules") also works fine, but then you become a 'Publisher', and not a 'forum', meaning you are responsible for what gets posted, and therefor vulnerable for slander, copyright infringement, etc, which it is my understanding that those who operate most of these companies are trying to avoid.

  25. [25] 
    James T Canuck wrote:

    I'm usually ready for the fresh outrages, conceits and, other species of idiocy from Trump, but 'Twatter v Twitter' helped me onto the floor and into paroxysms of side-splitting laughter. Let's be free to be real for a moment, Trump has had 'tiffs' with Fox news from time to time, and the right-wing lurch from love to loathe stopping only to clutch their pearls ever tighter. But for Trump to forsake Twitter for any reason seemed to suck the air out of the world of the punditry for 24 hours, or a billion years in the Trumpian news life-cycle. I mean, Trump without Twitter is like Hitler without Goebbels, Bormann and his faithful dog, Blondi.

    Twitter is the prism through which Trump makes sense of his world, it's the reason he assumes millions of votes were stolen, lost or diverted to Clinton in 16'...He can't compute how he can maintain 70 million followers, yet earn 20 million fewer votes. Trump fancies Twitter on par with the Caligularian 'one throat of the plebs' to be cut at a whim, it's his power, his infinity stone, his sword of Damocles with it's awesome power to hold sway over the mob.

    If Trump had his druthers, he'd have it that Twitter catered to his every whim to the exclusion of everyone else on the planet, but to slope off to Coventry of his own accord...Lololololoool


  26. [26] 
    ListenWhenYouHear wrote:


    From the 1982 article you shared a link to:

    It was compassion that led him to authorize his officers to use two special methods for subduing those arrested --the "bar-arm hold" and the "carotid control hold," or choke hold, as it is also known. These disabling holds make it unnecessary for police officers to use their weapons.

    It was compassion that led him, a couple of weeks ago, to ban the bar- arm hold, which blocks the flow of oxygen to the lungs.

    An “arm-bar” does not block the flow of oxygen to the lungs. And anyone who refers to a “carotid control hold” as a “choke hold” never enjoyed watching professional wrestling when they were younger. A “carotid control hold” is referred to as a “sleeper hold”, as it renders the person does not interfere with breathing at all.

    Strangulation is what occurs when you put someone in a “choke hold”. Two hands around a person’s throat pressing on the larynx is a “choke hold”.

    The “carotid control hold” is still used today as an effective policing tool to force compliance. Your article is very outdated.

  27. [27] 
    ListenWhenYouHear wrote:


    OK, that system ("House Rules") also works fine, but then you become a 'Publisher', and not a 'forum', meaning you are responsible for what gets posted, and therefor vulnerable for slander, copyright infringement, etc, which it is my understanding that those who operate most of these companies are trying to avoid.

    Bull Crap! That does not make a forum become a “Publisher” under any legal definition! Forums are not responsible for what others post without their knowledge. Moderators used to be used on most message boards, and while not perfect; they did a fairly good job of policing for messages that violated TOS. If anything, it’s a better argument that a forum that ignores calls to remove messages that violate their TOS are choosing to publish untrue/false/damaging messages.

  28. [28] 
    nypoet22 wrote:

    sounds like against his own interests donald was accidentally right about this.

  29. [29] 
    Elizabeth Miller wrote:

    about what - I don't feel up to perusing the comments in this thread ...

  30. [30] 
    Kick wrote:

    C. R. Stucki

    OK, that system ("House Rules") also works fine, but then you become a 'Publisher', and not a 'forum',

    Says who? And so what?

    meaning you are responsible for what gets posted, and therefor vulnerable for slander, copyright infringement, etc, which it is my understanding that those who operate most of these companies are trying to avoid.

    If I make a comment on an article at a "publisher" like "The New York Times," they aren't responsible for the content of my comment any more than Twitter is, and they definitely have "House Rules" just like Twitter does and enjoy protections for third-party content under 47 United States Code Section 230, which law encourages and protects the moderation of third-party users:

    (c) Protection for “Good Samaritan” blocking and screening of offensive material

    (1) Treatment of publisher or speaker
    No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

    (2) Civil liability
    No provider or user of an interactive computer service shall be held liable on account of -

    (A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or

    (B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).

    If "The New York Times" is paying someone to defame someone on its website, then they're liable for the published defamatory comment.

    If Twitter chooses to "factcheck" a user, then and only then would Twitter be considered to have published material, keeping in mind that Twitter is also a company whose opinion is protected by the First Amendment. By exercising their First Amendments rights, Twitter doesn't magically become liable for the billions of other opinions/tweets that exist on their website/platform.

    Here is am explaining law to Stucki again! :)

  31. [31] 
    MyVoice wrote:

    [26] ListenWhenYouHear

    Yes, it is -- and Daryl Gates was outdated the day he was born.

  32. [32] 
    nypoet22 wrote:


    donald was right that twitter and other social media companies need to be treated more like content creators and less like mere platforms for others.


  33. [33] 
    C. R. Stucki wrote:

    Poet [32]

    Why? Are they creating any 'content'?

  34. [34] 
    nypoet22 wrote:

    @crs [33],


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