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Back in November 2019, Twitter said that it would not be accepting any political advertising for the 2020 election, yet now the social media giant seems to be right smack dab in the middle of a very public debate involving the White House and President Trump. Quite simply, Twitter decided to fact-check the president, and that quickly escalated the situation to the point where President Trump signed a new executive order that will limit many of the broad legal protections enjoyed by the social media giants. So how did we get to this point, and what does it mean for the outcome of the 2020 election?
The escalating feud with Silicon Valley
For months, Trump supporters have been complaining that social media platforms like Facebook and Twitter have been tampering with their right to free speech. Some of this tampering has been very subtle – such as by tweaking an algorithm to suppress certain types of content. But a surprisingly large amount of this tampering has been very overt, often leading to certain high-profile users being knocked off the platform for extended periods of time. In some cases, content has been removed entirely and Twitter accounts re-tweeted by President Trump have been blocked or eliminated. And any content that goes against the mainstream media narrative is immediately labeled a “conspiracy theory” by Silicon Valley.
So, in many ways, this was a fight over freedom of speech that had been building for some time. What pushed things over the edge was a controversial tweet by President Trump suggesting that any mail-in ballot initiatives for the 2020 election would be rife with fraud. It would simply be too easy to forge signatures, steal ballots, or create fraudulent ballots. As Trump noted in his tweet, there would be “tremendous potential for fraud and abuse.” That’s an opinion, but Twitter decided to fact-check the tweet anyway with a special label. It’s not so much that Trump made an untrue factual claim, it’s that he stated an opinion that Twitter didn’t like. Adding insult to injury, Twitter fact-checked Trump with CNN and the Washington Post — two of the media entities traditionally derided by Trump as being “fake news.”
Why Section 230 matters
In response, Trump is now threatening the big social media companies with the removal of broad legal immunity they have always enjoyed, thanks to Section 230 of the Communications Decency Act of 1996. That might sound like an arcane bit of legislation, but it has been described as “the twenty-six words that created the Internet.” As a result of Section 230, any “interactive computer service” has to be treated as a platform, and not as a publisher. Section 230 was written back in the mid-1990’s, back before there was a Twitter or Facebook, but the basic thinking was that the Internet would become a sort of “town square” or “public bulletin board” where anybody could post anything they wanted (unless, of course, it violated federal criminal statutes), and there would be no legal liability involved. In layman’s terms, it means that platforms like Twitter or Facebook can’t be sued for any content that their users create. You can go after the original content creator, but you can’t go after Twitter or Facebook. Even something that everybody on the planet would find morally reprehensible – such as enabling a gun-toting psychopath to live stream a mass murder in New Zealand via social media – carries no legal liability for Silicon Valley. (“Hey, we can’t help it if crazy guys are using our tools in the wrong way.”)
The so-called “Good Samaritan” clause of Section 230 even goes so far as to state that these “interactive computer services” can take down or moderate any content on their platform, as long as they are acting in good faith. This means that they can remove constitutionally protected speech (such as a crazy tweet promoting an unpopular ideology), if they are doing so in the public’s interest. This is why Twitter felt so emboldened as to fact-check and moderate President Trump – as long as they are a platform, and not a publisher, they can get away with this type of behavior.
Implications for 2020 election and beyond
So, in many ways, we could be seeing a massive sea change taking place with the new executive order on social media. Conservatives are already cheering the move, convinced that Twitter and Facebook will be unwilling to risk a legal fight if prominent voices are censored, shadow banned or throttled in any way. And Trump supporters are also giddy, convinced that Twitter and other social media companies won’t be able to steal an election away in November. Sure, Twitter might still be able to shut down someone like Alex Jones, but it won’t be able to shut down millions of Americans who are challenging the conventional media narrative and questioning the role of Silicon Valley in shaping the political debate.
Of course, there may be a number of unintended consequences here. A system that has worked well for nearly 25 years – and that has been given credit for helping the Internet to flourish – is now being challenged at its very core. If Twitter and Facebook are now publishers, and not platforms, it means that they could soon be facing a huge legal liability. Instead of innovating with new services and products, they might be tied up in the courts for a very long time. And they could even be facing an existential crisis of sorts. If you’re tired of the monopolistic presence of the big social media giants, though, this might actually be a good thing. It might lead to the creation of entirely new, unbiased and impartial social platforms without any political agenda to advance.
