From Portside <[email protected]>
Subject Trump’s Warped Definition of Free Speech
Date May 30, 2020 12:10 AM
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[Trump is seeking to build social-media companies such as Twitter
and Facebook into part of an authoritarian infrastructure that
amplifies his power and silences the opposition.]
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Adam Serwer
May 29, 2020
New York Times
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_ Trump is seeking to build social-media companies such as Twitter
and Facebook into part of an authoritarian infrastructure that
amplifies his power and silences the opposition. _

, Jonathan Ernst / Reuters


Sarah Palin knew her rights had been violated.

Just days before the 2008 election, the Republican vice-presidential
nominee told a conservative radio host that the press was trampling on
her right to free speech.

“If [the media] convince enough voters that that is negative
campaigning, for me to call Barack Obama out on his
associations,” Palin said
[[link removed]],
“then I don’t know what the future of our country would be in
terms of First Amendment rights and our ability to ask questions
without fear of attacks by the mainstream media.”

Sign up for The Atlantic’s daily newsletter.
[[link removed]]

Palin’s remarks were widely ridiculed at the time. The First
Amendment, commentators on the right and the left pointed out,
protects the freedom of speech, not the freedom from criticism. You
have the right to speak, and others have the right to praise, mock, or
ignore you as they see fit.

Garrett Epps: The important First Amendment principle now at risk
[[link removed]]

As absurd as it may sound, Palin’s bizarre interpretation of the
First Amendment has now been adopted by the president of the United
States. On Tuesday, the social-media company Twitter added a label to
one of the president’s tweets, which falsely declared that mail-in
ballots would be “substantially fraudulent,” urging users to
“get the facts about mail-in voting.” Twitter did not ban Trump
from the platform, or censor his tweet, although it would have been
fully within its rights to do so, and in accordance with its own terms
of service. It merely appended additional context showing that the
president’s claim was false.In retaliation, Trump signed an
executive order
[[link removed]] yesterday
afternoon directing the federal government to “reconsider the
scope” of Section 230, a provision of federal law that shields
companies from liability for content posted by their users. The First
Amendment was explicitly written to protect the right of citizens to
express opposition to their leaders; it says that Congress “shall
make no law … abridging the freedom of speech, or of the press.”
But to the president, criticism of his falsehoods is a violation of
his free-speech rights. This position reverses the purpose of the
First Amendment, turning an individual right of freedom of expression
into the right of the state to silence its critics.

Internet-communications companies have a tremendous amount of power to
shape public discourse, power they have often wielded irresponsibly
[[link removed]].
There are substantive debates to be had over the scope of that power,
and whether state action is necessary to prevent monopolies or more
strongly regulate the use of private data. But the president’s
actions are little more than an attempt to use state authority to
intimidate social media companies into amplifying his falsehoods.

Most free-speech debates
[[link removed]] over
the past few years have involved not government censorship, but
arguments over what forms of expression or behavior deserve social
sanction or opprobrium, and over the line between proportionate
outrage and cruelty. But Trump’s attempt to punish Twitter for
labeling his tweet is a textbook free-speech issue, one that involves
the core democratic right to criticize the government. The responses
from the pro-Trump right, after years of hand-wringing about campus
protests and mean tweets
[[link removed]],
are telling.

_The __Wall Street Journal_
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the opportunity to scold Twitter for “handing Mr. Trump evidence to
prove his point that technology elites are out to get the President
and his followers,” arguing that any forthcoming government
censorship would be its fault because it angered the president.
Writing in the 
[[link removed]]_New
York Post_
[[link removed]],
Sohrab Ahmari cheered Trump on, announcing, “If Twitter is going to
‘fact check’ the leader of the Free World,” then “it should be
treated as the publisher that it is—with all the liabilities that
entails.” Aside from Ahmari’s bizarre misunderstanding of the
law—Twitter and other platforms are protected from liability from
what _its users_ post, not what the company _itself_ posts—not
needing permission from the state to criticize it is part of what
makes a society free. The “free world” envisioned here is one in
which Americans are free to say all the nice things they want about
the handsome and smart Mr. Trump.  

This should be obvious, but if your freedom to speak depends on the
president approving of what you say, then you simply don’t have
freedom of speech. The Trumpist defense of state censorship of social
media is that if you do not want your kneecaps broken, then you should
make sure you pay the protection money. Twitter is hardly the first
media company to face this kind of extortion from the president; as my
colleague David Graham points out
[[link removed]],
Trump has attempted to use the authority of his office to silence
criticism from the _Washington Post_, CNN, members of the White House
press corps, and even ESPN.

Read: Donald Trump’s unprecedented assault on the media
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Although the actual legal effect of the order remains unclear, its
intent is not. Democracy is impossible if private citizens cannot
publicly oppose their leaders. The ultimate goal of Trump’s
retaliation is to chill criticism of his actions and behavior, by
sanctioning online platforms that engage in such criticism. Contrary
to the president’s claim, Twitter was not “stifling free speech”
by criticizing the head of state. But in directing the federal
government to punish Twitter  and other social-media companies, Trump
was engaging in a form of censorship.

Social-media companies have First Amendment rights. They are allowed
to define their own terms of service, and to decide who is in
violation of them. Twitter is no more obligated to let you use its
service than a restaurant owner is to serve you if you are not wearing
shoes or a shirt. This has worked to Trump’s benefit—although his
posts frequently violate the terms of service
[[link removed]] of
social-media platforms, his power and influence means that the
companies are loath to remove him for his transgressions.

Nor would removing the liability protections of Section 230
[[link removed]] necessarily lead to a fairer,
less moderated internet. Although some conservatives, prodded by
Republican lawmakers, have suggested that the law’s protections are
conditioned on platforms’ remaining neutral toward political
viewpoints, no such provision exists in the text
[[link removed]] of
the law, and such a requirement would raise its own free speech

What Section 230 does do is keep companies from being sued when one of
their users makes a defamatory claim, like falsely accusing someone of
murder, as Trump himself has done repeatedly to the conservative
cable-news host Joe Scarborough
[[link removed]] over
the past few weeks. Trump, as president, enjoys some protections
against defamation suits, but removing the protections of Section 230
would make online publishers more, not less, likely to moderate the
things their users write, lest they be sued for a fraudulent or
defamatory claim. Every restaurant review, comment section, or status
update would become a liability risk for the company hosting them.

There is a genuine debate to be had about the limits of Section 230.
As Sarah Jeong wrote in 
[[link removed]]_The
New York Times_
[[link removed]] last
July, the liability shield prevents platforms from being sued for
libelous claims made by users, but it has also been used to protect
companies that refuse to take down revenge porn
[[link removed]].
The presumptive Democratic nominee for president, Joe Biden, has
argued that
[[link removed]] Section
230 should be revoked to prevent platforms like Facebook from
promoting false information. Senator Ron Wyden of Oregon, the lawmaker
who wrote Section 230, has defended the provision
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arguing that “If you unravel 230, then you harm the opportunity for
diverse voices, diverse platforms, and, particularly, the little guy
to have a chance to get off the ground.” Whether you think these
arguments are good or bad, they are at least tied to what the law
actually does. As Jeong wrote, “there can be no honest debate over a
version of C.D.A. 230 that doesn’t exist.”

Evelyn Douek: Trump is a problem that Twitter cannot fix
[[link removed]]

Trump’s goal, though, is not honest debate. It is censorship. If the
tech companies do not promote his propaganda, or maintain his
exemption from their own rules, they will be punished. His approach
reflects a growing sense of victimization on the right over the
shifting terms of public discourse, in which their views about
politics, race, gender, and sexuality are now subject to harsh
criticism from those who disagree with them. The growing diversity of
the United States has so rapidly disrupted the grip on power that
cultural conservatives once held—it was but a generation ago that
Democrats wanted to censor rap music
[[link removed]] and ban
same-sex marriage [[link removed]]—that they
are now turning to the power of the state to settle debates they are
no longer confident of winning in the public square. Trumpists do not
seek to curtail the power of Big Tech. They seek to wield it against
their enemies.

The leadership of the tech companies understands this. Facebook
CEO Mark Zuckerberg criticized
[[link removed]] Twitter’s
actions yesterday morning, saying on Fox News that social-media
companies should not be “the arbiter of truth.” But Facebook has
been happy to make such decisions in Trump’s favor, genuflecting
toward power
[[link removed]] while
maintaining a facade of neutrality. In October, Facebook happily
published an ad
[[link removed]] from
a pro-Trump political action committee that falsely accused Biden of
corruption without fact-checking it; this month it labeled
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critical ad from the anti-Trump Lincoln Project “partly false.”

The reach and influence of social media is novel, and there are no
obvious rules that avoid curtailing someone’s rights or
concentrating too much power in the hands of one entity or another.
But the public having to rely on the willingness of wealthy tech
executives to resist political pressure from a president who wants to
coerce them into doing his bidding is no solution.

The Trumpist right, however, is not seeking solutions to difficult
questions about rights and regulations. It is seeking to build
social-media companies such as Twitter and Facebook into part of an
authoritarian infrastructure that amplifies its power and silences its
opposition. It is seeking to make real the president’s conviction
that he and his sycophants have the right to say whatever they
want—and you have the right to be silent, the right to bend the
knee, or the right to be punished. Or to say that Trump
[[link removed]] “is
the greatest president in our history.” Whichever you prefer.

This story is part of the project “The Battle for the Constitution
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partnership with the National Constitution Center
[[link removed]].

_Adam Serwer is a staff writer at The Atlantic, where he covers
politics. Twitter. [[link removed]] Email.
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Enjoy unlimited access to The Atlantic for less than $1 per week.
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