Tuesday June 2, 2020
President Donald Trump’s executive order on social media has left more questions than answers on the ability of the government to regulate companies like Twitter. However, one thing is abundantly clear: the loser in this fight will be free speech. Indeed, the striking thing about this controversy is neither the Democrats nor the Republicans are actually advocating for free speech, just different forms of speech controls. Civil libertarians are faced with the “choice” offered by Henry Ford on colors for the Model T Ford “any color … so long as it is black.” In some ways, Trump and Twitter are offering a similar choice on the new model for free speech: Americans can chose between government censorship and private censorship.
The heart of the executive order is Section 230 of the Communications Decency Act. The 1996 legislation signed into law by President Bill Clinton was largely an attempt to regulate pornography and struck down in significant part as unconstitutional. Section 230, however, survived and grants any “interactive computer service” (including Internet and social media companies) immunity from most lawsuits over content posted by users. Courts have interpreted the provision to give sweeping immunity for companies like Twitter and Facebook because they simply supply a forum for others to express themselves.