The crossroads of free speech and executive prerogative

May 27, 2020, will be remembered as the day when the president of the United States publicly threatened to censor political speech. "Republicans feel that Social Media Platforms totally silence conservatives['] voices," President Donald Trump announced on Twitter. "We will strongly regulate, or close them down, before we can ever allow this to happen." The next day, Trump issued an executive order beginning to make good on that threat by seeking, among other things, to diminish the liability protections that California-based companies like Twitter and Facebook now enjoy under Section 230 of the Communications Decency Act. This unconstitutional act is a dangerous escalation in his abuse of government power to persecute perceived political enemies.

It is only observation to note that Trump's order unquestionably constitutes governmental retaliation against the content of Twitter's speech. On May 26, Trump used Twitter to publish several provably false claims about voting by mail. Later that day, Twitter attached warnings to those claims "to enforce [its] civic integrity policy." On May 28, Trump issued his order, which specifically alleges that Twitter deserves to have its liability protections revoked because it "selectively decides to place a warning label on certain tweets in a manner that clearly reflects political bias." This is the complete context. What Trump finds objectionable is speech that contradicts his own and thus competes with it in the so-called 'marketplace of ideas.'

This kind of viewpoint discrimination is unconstitutional under well-settled First Amendment jurisprudence. As Justice Anthony Kennedy wrote in Rosenberger v. UVA (1995), "When the government targets not subject matter but particular views taken by speakers on a subject, the violation of the First Amendment is ... blatant. ... The government must abstain from regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction." Trump's policy is expressly premised on the complaint, lodged in his tweets and elsewhere, that social media companies are biased against him and other "conservatives." In other words, he and his policy are motivated by antipathy towards the ideology of the speakers, which he views as opposed to his own, even when those speakers only identify, explain, or contextualize his falsehoods. His executive order therefore cannot withstand the strict scrutiny Supreme Court precedent compels.

Underlying this doctrinal infirmity is a wild bit of doublespeak. Styling itself as "preventing online anticensorship," Trump's order in fact seeks to censor. The mechanism by which it does so is novel. Displacing the obligation not to censor from government to private companies, Trump would have it be that the government's regulation of private actors' editorializing speech is not itself censorship so long as the effect is to limit liberal voices and give free rein to "conservative voices." If you missed it, that illogic is what Princeton philosopher Harry Frankfurt eloquently describes as "bullshit." American law does not generally impose First Amendment neutrality standards on platform companies, and Section 230 of the CDA specifically grants safe harbor to interactive online services, like Twitter, that block or screen material that they deem offensive, including material that violates their community standards. Pretending that the First Amendment applies to platform companies and that Section 230 says something other than what it says destabilizes the basic reasoning of Trump's order, even as it reaches for the lodestar of authoritarian prerogative: the control of political speech.

Which brings us back to Trump's original threat to shutter companies that disagree with him. Even if Trump's order and all the legislative tinkering it envisions were to fail, his efforts might still succeed in chilling online speech opposed to his own because companies and individuals could reasonably fear other kinds of retaliation or seek to avoid the costs of defending against renewed attempts at retaliation. Worse, platform companies might be induced, for the same reasons, to assuage Trump by engaging in discrimination that favors him, which is arguably already implicit in the generally lax approach platform companies take to the enforcement of their community standards against individuals like Trump when they, for example, are allowed to spread conspiracy theories about a former congressman's purported involvement in murder or urge the use of dangerous drugs as prophylaxis against COVID-19. On the other hand, if Trump's efforts succeed, platform companies will become instruments of the government, and lèse-majesté will have come to America.

That, after all, appears to be the endgame of Trump's approach to platform company regulation and his endless diatribes against the Fourth Estate. At every turn, he finds himself frustrated by the limits on his personal power to avoid criticism and compel praise. Trump's solution to this problem, as his pronouncements of the last week make clear, is to use governmental power, under the false banner of anticensorship, to suppress the speech that upsets him. That is unconstitutional, illogical, and at odds with fundamental tenets of American liberty. 