Twitter and Trump raise stakes in fight over free speech in America
Free speech, our defining right in the United States, seems to be dangling on social media. Twitter added warnings on tweets from President Trump, marking a major escalation of speech controls on the internet, something that has been demanded by Democrats. While the company clarified that Trump did not violate the rules, it still intervened between him and all his followers to add its own view of the truth on a political controversy.
The action against Trump on his mail voting tweets is the realization of the fear of free speech advocates. People sign up for updates from Trump, not Twitter, but the company decided to force his 80 million followers to view its own position on this issue. Imagine if a telephone company listened for errant political statements on calls to flag its business concerns.
Unfortunately, Trump added his own threat to free speech by pledging to “shut down” Twitter and others if they do not change their positions. It is akin to denouncing people without fire detectors by threatening to burn down their homes. His new executive order would seek to eliminate key liability protections for social media companies while calling for federal investigations into political bias. But without legislative support, such a crackdown on these companies is highly unlikely to succeed. However, Congress has been angling to curb online free speech for years.
Curtailing free speech has now become an article of faith in many circles. News host Don Lemon told Twitter chief executive officer Jack Dorsey to “stop hiding behind the First Amendment” and censor Trump. Democrats such as Representative Adam Schiff sent letters to social media platforms to demand greater regulation and removal of certain statements that are seen as misleading, which many of us warned is a potential abuse of free speech. Former Vice President Joe Biden added his voice to the call this week for Twitter to remove any statements deemed to be false.
The choice to target a political statement on Twitter was no accident. This is precisely the type of statement that Democrats have been searching for years with threats of a federal takeover. During one hearing, Senator Mark Warner boomed that “the era of the Wild West in social media is coming to an end.” That intolerable Wild West is the existence of an area of relatively unregulated free speech. Indeed, like those pioneers of democracy, many people have gone on social media to speak their minds openly.
That frontier of free speech may now be vanishing. On the mail voting tweets, Twitter dispensed with any discernible standard to intervene in political exchanges. Speech regulation will evidently go back in time to retroactively mark unreliable views. The website archive service called Wayback Machine claims it will label articles as “disinformation” when faced with views it deems false or misleading. Now there will be both censorship and retroactive action taken against past thoughts.
The mail voting tweets from Trump are based on a rather mainstream view of the dangers of using such a system on a large scale basis in an election. This concern was certainly raised when multiple ballots for a primary race next week were mailed mistakenly to several voters across Pittsburgh and Allegheny County in the battleground state of Pennsylvania. Officials have said barcoding will prevent anyone from voting more than once.
Such insistence of Trump that mail voting is “substantially fraudulent” is unsupported, while there are good faith arguments that mail voting may increase participation in an election. Yet it is also just as unsupported to suggest there is no danger in sending ballots to every home to be filled out without supervision or confirmation. Some households will receive multiple ballots, including for some who may be uninterested. The only reliable way to confirm mail voting fraud would be to do what no state could do and demand that voters must verify who they voted for.
The danger of stolen mail ballots is probably less pronounced, since such criminal acts would likely produce traceable multiple votes if the victims sought to vote in person or by other means. Then there are the concerns over ballot harvesting, where a third party can collect such ballots. Some Democrats want to make ballot harvesting legal across the nation.
If races in swing states like Pennsylvania prove as close as expected, that increase in mail ballots may pose challenges. We have never relied to this extent on mail ballots with at least 40 million voters able to use them. The logistical or criminal interruptions may undermine our faith in the election results. The prospect of using this novel system this fall is stressful. There is a relatively short window, as we saw in 2000, between Election Day and the required certification before inauguration. The reliance on mail voting, therefore, may trim the period for challenges and delay the results.
I do not believe the sweeping claims of fraud any more than I believe the sweeping dismissals of concerns. This is an important matter for debate. Yet Twitter has labeled one side of that debate to be presumptively false. That is why this concern is not about free elections but free speech. The warning tells Trump followers to “get the facts” about mail voting. When you click the added link, it takes you to a page that says Trump made an “unsubstantiated claim” that mail ballots will lead to voter fraud.
The issue is whether websites will label other views as unreliable. Would Wayback Machine label all those false tweets from Democrats that claim evidence of Russian collusion in the 2016 election? What about all those tweets on the discredited dossier? We have learned that several Obama officials testified privately that they had never seen evidence of Russian collusion. Indeed, the Twitter standard seems to mean intervention with claims that Schiff had “ample evidence” of Russian collusion. Would his followers now be warned to “get the facts” on Russian collusion?
The executive order to eliminate protections for companies is precisely the type of retaliation that some Democrats have threatened in the past. Indeed, it may bring an involuntary response from Democrats to oppose the very crackdown they previously threatened. They could also defend the free speech rights of Twitter despite not wanting recognition of free speech rights for the companies in cases such as Citizens United.
There is, however, an alternative. These companies could return to being neutral forums for free speech, and Trump can return to using rather than regulating social media. Otherwise, before they seek to engage with their friends and followers on social media, citizens should first “get the facts” on free speech before it dies with the cheerful chirping of a tweet.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates online @JonathanTurley.
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