Last Thursday the president of the United States threw a temper tantrum disguised as an executive order, threatening to punish Twitter for daring to annotate two of his comments about voting by mail. Twitter retaliated the next day, slapping a warning label on a presidential tweet about the protests triggered by George Floyd’s death at the hands of Minneapolis police officers.
Donald Trump’s order was legally meaningless, aiming to increase the civil liability of disfavored social media platforms in ways that are beyond his powers and that would encourage more, not less, scrutiny of online speech. But Twitter’s sudden interest in policing the president’s claims and rhetoric was equally hard to take seriously, promising a kind of dispassionate and consistent oversight it cannot possibly achieve with Trump, let alone every public official on Earth.
Trump, as head of the federal government’s executive branch, is bound by the First Amendment. Twitter, as a private company, is not.
That remains true no matter how many times Trump calls social media platforms the “21st century equivalent of the public square,” claims to be protecting “freedom of expression” and “sustaining our democracy” by fighting “online censorship,” or asserts that he is “applying the ideals of the First Amendment.” Those Orwellian formulations are merely cover for Trump’s attempt to shape political debate by government force — exactly what the First Amendment forbids.
A politician who was committed to freedom of expression never would have issued this order. Nor would he threaten to yank the licenses of broadcasters who offend him or suggest changing libel laws to facilitate lawsuits by thin-skinned public figures who don’t like their press coverage.
Just last year, Trump’s lawyers were arguing that the First Amendment imposes no restrictions on his discretion to block critics from following him on Twitter, even though he uses his account to conduct government business. A federal appeals court disagreed, ruling that Trump’s use of the account for official purposes created a “public forum” where Americans have a constitutional right to debate his policies and pronouncements.
Now Trump seems to be claiming that all of Twitter is a public forum under constitutional law, giving him a First Amendment right to use it as he chooses, unconstrained by the rules that the platform’s proprietors deem appropriate. The only thread of consistency is Trump’s self-interest.
The truth is exactly the opposite of Trump’s view: The First Amendment protects Twitter’s right to restrict or comment on users’ speech. But that does not mean Twitter is exercising that right wisely, fairly or coherently.
Around the same time that Trump was using Twitter to casually defame an MSNBC host by insinuating that he was involved in a fictional murder, the company decided to take issue with two Trump tweets warning that expanded use of mail-in ballots would lead to “substantially fraudulent” voting and a “rigged election.” Those comments were hyperbolic and included at least one blatant inaccuracy — Trump’s claim that all California residents would receive mail-in ballots.
But that is par for the course with Trump. If Twitter tries to keep up with all of this president’s exaggerations and prevarications, especially when they are matters of interpretation, it will satisfy no one.
Twitter’s next exercise in Trump moderation involved a tweet in which he called for stronger action against violent protesters, warning that “when the looting starts, the shooting starts.” Twitter deemed that comment a “glorification of violence,” ordinarily prohibited by the platform’s rules, but left it up, accompanied by a “public service notice,” because an elected official said it.
Like most of its rules, Twitter enforces that one haphazardly at best, as a search for the phrase “snitches get stitches” on the platform reveals. Such inconsistency, which conservatives plausibly suspect is influenced by political bias, is a big part of their beef against Twitter.
Those complaints may have merit. But that does not mean Twitter’s inevitable failure to evenhandedly enforce its own rules qualifies as a constitutional issue.