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Thursday, May 28, 2020

Thoughts on the Twitter EO (Updated to include final Order)

Thoughts on the final new EO.

1) It cites Packingham and Pruneyard to support the proposition that social media has become the "functional equivalent of a traditional public forum" and the "modern public square." But Packingham was a case about how social media is so important that government cannot prevent people from accessing it; it does not support the proposition that social-media companies are bound by the First Amendment. It studiously avoids Manhattan Community Access, which rejected the idea that opening a private space for speech (a bulletin board, open mic at a comedy club) subjected the owner to First Amendment limitations. And part of the rationale was that the Constitution does not "disable private property owners and private lessees from exercising editorial discretion over speech and speakers on their property." To the extent the EO commands the FTC to try to impose those obligations on social-media platforms (Twitter mentioned by name), it will run into that limitation.

2) The irony (perhaps intentional) is that the EO was prompted not by restricting speech, but by engaging in counter-speech--exercising its own First Amendment right to label something Trump posted as bullshit. Even if Twitter were somehow obligated to treat its platform the way government is supposed to treat the public square and not bar any protected speech, it cannot, consistent with the First Amendment, be prohibited from speaking in its own voice. So the Twitter conduct the EO aims to stop is not the Twitter conduct that precipitated the EO.

3) The EO's goal seems to be to impose the platform/publisher distinction onto  statutory language that does not create and cannot bear that distinction. Eugene Volokh explains the platform/distributor/publisher distinction and § 230 as it stands. He explains that § 230 gives social-media companies the immunity of a platform (e.g., telephone companies) even when it acts like a distributor (e.g., a bookstore or newsstand). Congress could change that, but has not. The EO attempts to impose that interpretation as executive-branch policy, but I am not sure the text can bear it. I leave to others to parse this out.

4) To relate this to Adam's various posts, the EO and the discussion around § 230 reflects the conflation of descriptive and normative arguments, of "is" and "should." The EO argues that any "editorial conduct" makes the entity a publisher and outside the protection of (c)(1) and (c)(2). But that is not what the statute, as it is written, says or means. As Eugene argues, it could have said it and it could be amended to say it. In others, maybe Twitter "should" lose immunity and the law should be written to do that; under the law as it "is," Twitter does not lose immunity.

5) It is not clear what practical effect the EO has. It seems to want the FTC and FCC to undertake regulatory activities that neither may have the power to take in an area that typically is not subject to agency action. Section 230 immunity arises when a service is sued for defamation or for an improper take-down; neither of those has anything to do with the agencies. It prohibits federal spending on misbehaving sites. It seems to want the FTC and state AGs to consider unfair/deceptive trade practice proceedings against sites for controlling content, but that would seem to run into some First Amendment problems.

6) The press is going to spend the next several days talking about the this and not the 100,000 dead Americans. So this is more shit flooding the zone.

Update: I agree with the general consensus that, while this will have no legal effect, it will make life difficult and annoying for Twitter, under the threat of the federal government (including a corrupt AG) watching them and their users. Which is the point.

Posted by Howard Wasserman on May 28, 2020 at 01:33 PM in First Amendment, Howard Wasserman, Law and Politics | Permalink

Comments

Attorney General Barr going out of his way to be around and to say a statement regarding this matter is perhaps notable.

The EO is simply put largely a diversion tactic mixed with pettiness (the fact a member of Congress is personally targeted has been reported). The update suggests to me as well "no legal effect" or not it will have practice anti-1A values effect. So, that adds to the general rot here.

But, fine, political rot. The presence of the head of the Justice Department, however, adds another troubling element. If one by now is well expected given the clear role of AG Barr.

Posted by: Joe | May 28, 2020 10:55:44 PM

That was the line that Steve Bannon, a former Trump adviser, used to describe his political strategy. Perhaps I should have used quotation marks, but the phrase has been in the news. This is not gratuitous and not simply using vernacular.

Posted by: Howard Wasserman | May 28, 2020 9:56:18 PM

Howard,
I am not an attorney and have no legal training. I enjoy reading your commentaries because they provide enlightenment on various areas of the law and are clearly and concisely written. I have noticed recently, an increased tendency to use vernacular in your writing (e.g., section 6). I trust you will not resort to the simple, "the President is a putz".

Posted by: Paul Sonnenfeld | May 28, 2020 9:37:37 PM

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