President Trump had a point last week when he issued an executive order that threatened to strip social media companies’ protection from lawsuits based on false and defamatory posts.
But as is often the case, the president’s threat appeared to be intended to intimidate social media companies such as Twitter from holding him accountable rather than correct an unfair legal protection.
And his charge that Twitter had violated the First Amendment and was guilty of “censorship” by appending “get the facts” warnings to some of his false posts on voter fraud had no basis in fact or reality.
The president does not have the power to revise the main law passed by Congress in 1996 laying out the rules of the road for social media – Section 230 of the Communications Decency Act.
Twitter was not censoring the president. The post stayed up. It was merely exercising its First Amendment rights to comment on the president’s post.
And if Twitter’s protection against being sued based on false and defamatory posts was eliminated, it would have to be more aggressive about policing messages that cross boundaries – like the president’s. We don’t think Trump really wants to lose access to his 80 million followers.
Twitter later escalated its battle with Trump when it attached an addendum to one of his tweets in response to protests and rioting in Minneapolis following the death of George Floyd after a police officer knelt on his neck for nearly nine minutes.
Trump tweeted that “when the looting starts, shooting starts.” Twitter said the tweet had the potential to incite violence. We agree.
But it has taken no action against Trump’s repeated tweets that essentially falsely accused MSNBC host Joe Scarborough, a frequent critic of the president, of murdering a staff member in 2001 when he was a Republican congressman in 2001.
Scarborough was 800 miles away at the time and police found no signs of foul play.
The aide’s widower asked Twitter to delete the message, but it refused.
Facebook’s response in all three cases was to do nothing.
Mark Zuckerberg, chief executive of Facebook, said the company’s policy is not to fact-check politicians like Trump – even if they violate rules that would apply to other people.
Zuckerberg said he has long believed that his company should avoid getting into the political fray and let its 3 billion users have their say.
But just weeks before, Facebook had no problem taking down an online ad produced by the Lincoln Project, a group of disaffected Republicans, entitled “Mourning in America.”
The ad blamed Trump for the death toll in the COVID-19 pandemic and the cratering of the U.S. economy and said Trump had assisted Wall Street but not Main Street. The United States under Trump, the ad continued, was “weaker, sicker and poorer” and after another four years of him as president, we might not even have a country.
The only difference in the Lincoln Project’s posting and many of Trump’s is that the Lincoln Project’s ad was true.
Which is to say Congress should take a hard look at Section 230.
The Section 230 legislation was intended to allow online start-ups to avoid legal challenges to their content by terming them platforms and distributors rather than publishers.
The legislation has enabled social media to become an almost no-holds-barred platform that often rewards the loudest, most extreme posts.
This was accomplished by letting the online sites set rules for what is and is not allowed to be posted by visitors, unlike a newspaper that is responsible for whatever it publishes and is subject to libel laws.
From a practical point of view, this means that if someone sends a letter to the editor of this paper that is believed to be libelous, the newspaper and the letter writer can be sued if it is published.
But if the letter writer posts the same information on Facebook and Twitter, only the letter writer can be sued. Facebook and Twitter face no legal threat.
You can argue that this arrangement might have made sense when Facebook and Twitter were getting started. But online companies are now among the largest in the world and their owners some of the richest and most influential people on earth.
Google and Facebook alone account for more than 70 percent of digital revenues.
“They’re not neutral platforms, they are publishers, the most powerful publishers in the world,” said Tucker Carlson of Fox News. “It empowers a handful of tech monopolies to the detriment of everyone else.”
Such as newspapers.
Over the past 15 years, more than one in five papers in the United States has been shuttered and the number of journalists working for newspapers has been cut in half.
More than 2,100 cities and towns have lost a paper and others are left with hollowed-out “ghost papers” with no one to cover school boards or offer local businesses ways to reach their consumers. This trend is only accelerating due to the economic damage caused by the pandemic.
Numerous studies show that communities without newspapers pay for the loss of coverage with higher taxes and increased government corruption.
Ironically, the loss of newspapers also results in the loss of content on social media sites such as Facebook and Twitter.
The treasurer of Australia recently pointed out that Google and Facebook are taking in a large share of online advertising revenue, even though much of their content came from media organizations.
In other words, newspapers pay reporters and editors to produce news stories and social media companies use their work to get most of the online advertising revenue. Talk about a bad deal for newspapers.
That needs to change beginning with newspapers and online media companies playing by the same rules.
If social media companies don’t face liability for posts, newspapers should not face liability for letters to the editor. Or if newspapers do face liability for letters to the editor, then so should social media companies like Twitter and Facebook for posts. Fair is fair.
Social media’s free lunch should also be ended. Social media companies should be required to pay fees for their use of newspaper articles.
“It’s only fair that those that generate content get paid for it,” said Josh Frydenberg, the treasurer of Australia, which is requiring social media companies to negotiate with news media on how to pay for their content.
European regulators are also seeking ways to extract money from social media companies.
People have argued that reclassifying social media companies as publishers subject to legal liability would undermine their entire business model. To which we say so what?
It certainly would curtail the disinformation and rage-for-profits model employed by these companies. Which would hardly be a bad thing.
We understand very well the value of a robust exchange in the marketplace of ideas. These papers have encouraged that kind of discussion since their inception. We have generally not challenged assertions of fact in letters to the editor, leaving that to others in the community.
But we also understand that there are limits to free speech and on a couple of occasions have had to revise our policies based on community input.
That’s called accountability – something the online media giants should learn something about.