ChrisWeigant.com

Section 230? More Like Section 8...

[ Posted Tuesday, December 29th, 2020 – 14:47 UTC ]

That joke may date me a bit, because if you've never served in the military, the only way you'd recognize "Section 8" is from watching M*A*S*H. Corporal Klinger was forever trying to get kicked out of the Army for being insane or unfit to wear the uniform, under the military's Section 8 regulation. Now, Donald Trump is trying to kill a provision of the law that regulates online social media companies that happens to be called Section 230. But in doing so, he's really only proving the depths of his own insanity, since killing off Section 230 would result in the exact opposite of what Trump thinks it will. If Section 230 disappears, Twitter and Facebook and all the others are going to bend over backward to remove any postings that might get them sued. Which covers a whole lot of what Trump regularly tweets.

Trump is currently trying to strongarm the Senate into somehow putting together a very complicated piece of legislation before this Congress ceases to be (it turns into a pumpkin at the end of the year, and then the next Congress will be sworn in). Which isn't really possible -- it probably wouldn't be possible even if every member of the House and Senate were on board, in fact. Drafting such a momentous bill would take awhile, and scheduling the votes for it would take even more time. By the time all of that happened, midnight would have already struck and the whole effort would collapse.

Call it Trump's final idiocy of 2020, if you will. But, thankfully, I've already written about the subject before, so I'm just going to re-run this column rather than write a new one. Back in May, Trump issued one of those meaningless feel-good executive orders he is so fond of, which purported to kill Section 230 by executive fiat. Of course, this isn't legally possible, but hey, it gave Trump something to sign, which made him happy. Think about it -- if Trump's executive order had done what he claimed it would do, then he would not still be fighting this fight at all, would he?

Putting that aside, since Trump now is refighting this battle, it's necessary to point out how self-destructive to his own stated goal what he's attempting truly is. This article was written to point out what a ridiculous windmill this was for Trump to be tilting at in the first place. It was titled: "Trump Shoots Himself In Foot With Twitter Executive Order," which pretty much sums up his whole vendetta against Section 230.

 

Originally published May 28, 2020

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

 

18 Comments on “Section 230? More Like Section 8...”

  1. [1] 
    John M from Ct. wrote:

    I don't think Trump is the only Republican who thinks (or says he does) that social media presently discriminates against conservative or right-wing posts. But are any other voices besides the president advocating for abolition of Section 230, hoping to free up conservatives' ability to post whatever they want? Is he alone in this one, or is he fronting for a corps of angry conservative opinion-makers and office-holders?

    Because I've long seen the consequences in the same terms as you do here. Legal liability for the platform means good-bye to almost any wild-eyed political or social discourse, of whatever stripe. Surely the conservative media mavens can see that, even if Trump can't - they (like most people) are a lot smarter than he when it comes to gaming out future consequences of flashy attention-getting statements.

  2. [2] 
    Elizabeth Miller wrote:

    More like section 8, indeed! Heh.

  3. [3] 
    Elizabeth Miller wrote:

    John,

    Surely the conservative media mavens can see that, even if Trump can't - they (like most people) are a lot smarter than he when it comes to gaming out future consequences of flashy attention-getting statements.

    I'm not so sure that we can make that assumption, currently. Ahem.

  4. [4] 
    MtnCaddy wrote:

    I don't think that Trump "takes careful aim" at anything. He just blathers out whatever hops into his Covid-ridden mind.

    And alas, we still have 2 days, 4 hours and half a minute -- Left Coast Time* -- to do something stupider in 2020. As I warned previously, "We ain't out of the woods yet!"

    *Or, as I like to tease my BFF who lives in Cleveland, LBT. Which means LeBron Time, as he's now an LA Laker.

    At least I think he's still my BFF

  5. [5] 
    MtnCaddy wrote:

    [1]

    A little lite research indicates that Repugs have tried to alter or revoke Sec. 230 going back before this last minute imbroglio because they claim that social media is somehow"unfair" to Conservatives. So the sentiment is not new.

    But #MoscowMitch introduced legislation in the Senate today to do just that. IMO this is a "poison pill" maneuver on his part to Scotch the $1,400 add-on to the second stimulus check of $600. We can't have a decent stimulus that would help Joe Biden with the American economy, can we?

    What a douchebag.

  6. [6] 
    MtnCaddy wrote:

    Reaganism has trashed the American Dream for most of us. If Bernie Sanders doesn't win your Most Honest category for 2020, I nominate him for a Lifetime Achievement Award for Most Honest as he's been railing against Reaganism for decades now.

  7. [7] 
    MtnCaddy wrote:

    I've been occasionally checking in on the comments sections in Fox News,
    OANN,

    Newsmax
    and, this evening,
    Breitbart.

    Not trolling, mind you, just in case stupid rubs off, and I would say you can't imagine the insanity of most of the Trumpanzies. Except...alas, you can imagine.*sigh*

    Many of the Breitbartians believe Fox News has went full-on Communist. Really, I think that's an insult to Communism.

  8. [8] 
    John From Censornati wrote:

    When I think of Section 8, I think of HUD's Section 8 affordable housing program.

  9. [9] 
    John From Censornati wrote:

    Senate Dems should go ahead and swallow McConnell's poison pill. It's way past time to remove the sludge from Twitter and Facebook. It would be OK if they dried up and blew away.

  10. [10] 
    Don Harris wrote:

    Mtn Caddy (5)-
    Wow. McConnell is quite the douchebag.

    In fact, he is 200 dollars more of a douchebag than Pelosi when she would not put forward legislation before the election for 1200 dollars because Trump just wanted to put his name on a check.

  11. [11] 
    Don Harris wrote:

    Section 8.

    A category that includes anyone that buys into the lies from the Deathocrats or Republikillers.

    But they are not wearing a dress. They are buying into how beautiful the emperor's new clothes look.

    A completely different type of "klinger". They are clingers to their delusions.

  12. [12] 
    Elizabeth Miller wrote:

    JFC[9],

    I agree!

    Well, I actually wouldn't want to see FB go completely away. But, it could be a very pleasant place for people like me who use it only to share and chat about/with music and musicians ... and the like. The rest of it and all of twitter can go away.

  13. [13] 
    C. R. Stucki wrote:

    CW

    It seems to me that either you or I are/am misunderstanding/misinterpreting the Sec 230 thing. The Wikipedia article on Sec 230 says, Section 230 provides protection from liability for internet providers in the removal of material deemed offensive, even if protected as 1st amendment free speech, "AS LONG AS IT IS DONE IN GOOD FAITH".

    But you say "Only gov'ts can censor free speech", and "Private companies do not have the power (to censor free speech) and never have".

    Do you not see a contradiction there? I'm guessing that what Trump wants to do is eliminate the ability of Facebook and Twitter to censor his stuff by claiming they're doing it "in good faith", obviously implying that he considers their efforts to be in "bad faith", and he does seem to have a valid point there.

  14. [14] 
    Elizabeth Miller wrote:

    Chris ... and, everyone!

    You're so close to target on the pledge drive!.

    Somebody, please chip in a little to keep this fine site commercial free!

  15. [15] 
    Elizabeth Miller wrote:

    ... if you haven't already, that is. :)

  16. [16] 
    John M from Ct. wrote:

    C. R. on [13]
    My understanding is that when a private media provider refuses to publish something you want to say, your right to free speech has not been infringed. You have the right to seek another public outlet, to stand in front of town hall and spout off, or even start your own media provider company and say whatever you want. If no one wants to publish your thoughts because they find them offensive, that's their right as private entities, and you just have to find someone who doesn't find them offensive or do it yourself.

    The government censors free speech by shutting it down, and taxing, jailing, or otherwise legally sanctioning the speaker, with the force of law not opinion. You can't look elsewhere for another outlet because you're in jail, or have moved to another country to escape the censorship. Not the same as being banned from Twitter.

    If Trump is thrown off of Twitter on January 21, his right of free speech hasn't been infringed in the slightest. He just can't speak on Twitter, that's all. Sure, he finds Twitter valuable and convenient to him and his political agenda, but his right to free speech means he just has to find a more amenable social media network, or start his own.

  17. [17] 
    C. R. Stucki wrote:

    John M

    Valid points. I presume Trump resents the fact that his "bully pulpit" isn't nearly AS "bully" as Twitter's.

  18. [18] 
    ListenWhenYouHear wrote:

    I think people fail to recognize Trump’s motivation behind this push: Trump doesn’t give a shatburger about free speech; he just wants to be able to seek vengeance (READ - lawsuits seeking $$$$$) on anyone that says/posts anything hurtful about HIM!!!

    Yes, this would result in a majority of his own posts getting blocked — which is one hurt feeling. But it would let him sue big corporations that allow mean things to be posted about him and would cost these corporations massive amounts of money — that’s two things that bring Trump the most joy! -1 + 2 = 1... so it is still a win for Trump!

    This has always been about giving Trump the ability to hurt anyone he feels deserves to be hurt. He knows how to play the lawsuit game to hurt his enemies — one of the only master classes that Trump University could have offered that would have been worth the fee.

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