President Trump today threatened a private company with governmental retaliation for its speech. The threat was vague enough, in terms of what would happen and what it would be a response to, that his defenders will argue that critics are overreacting. However, threats of government action for speech are themselves a First Amendment violation. The President actually violated the First Amendment this morning, just by tweeting.
And it’s not the first time he’s done it.
Here’s the background. The other day Trump tweeted the following:
Those blue messages below the tweets were added by Twitter. Clicking on them leads to the following “fact check”:
Trump makes unsubstantiated claim that mail-in ballots will lead to voter fraud
On Tuesday, President Trump made a series of claims about potential voter fraud after California Governor Gavin Newsom announced an effort to expand mail-in voting in California during the COVID-19 pandemic. These claims are unsubstantiated, according to CNN, Washington Post and others. Experts say mail-in ballots are very rarely linked to voter fraud.
What you need to know
– Trump falsely claimed that mail-in ballots would lead to “a Rigged Election.” However, fact-checkers say there is no evidence that mail-in ballots are linked to voter fraud.
– Trump falsely claimed that California will send mail-in ballots to “anyone living in the state, no matter who they are or how they got there.” In fact, only registered voters will receive ballots.
– Five states already vote entirely by mail and all states offer some form of mail-in absentee voting, according to NBC News.
To some, it might seem seductive to have a system like this that calls out Trump’s lies. Trump lies like he breathes. Nobody knows how to lie like Trump. Shouldn’t he be held to a standard of truth?
Not this way, no. Such fact checks are a bad idea for a host of reasons.
First, fact checkers should limit themselves to actual facts; taking a statement that might be true but that fact checkers believe there is “no evidence” to substantiate is not, in my view, the proper role of a fact checker.
But more fundamentally, any such enterprise by Twitter is doomed to fail by the very nature of the project. There is no possible way for one entity to do it comprehensively enough and accurately enough to make it an addition to the discourse. Inevitably one of these fact checks will be wrong. Also, they can’t fact check everyone. It’s impossible. So whom will they choose to check? Will they fact check China? Biden? Alyssa Milano? Also, when they don’t fact check a false claim, it will be taken as evidence it’s true.
Reliance on “fact checkers” is always lazy and sloppy. It has never been otherwise. I would vastly prefer a system where the people themselves conduct their own search for truth, in replies and their own tweets, to a system that fact checks false claims as official diktats of the platform.
That said, the fact check is Twitter’s speech. And Trump this morning is clearly threatening retaliation:
Twitter has now shown that everything we have been saying about them (and their other compatriots) is correct. Big action to follow!
— Donald J. Trump (@realDonaldTrump) May 27, 2020
Sure, he’s not saying specifically and explicitly why he is planning a “big action” or whether it’s a big government action. But we can read between the lines. The mobster who enters the business of a proprietor who is not paying the mob extortion money, and says it would be a shame if it burned down, can always profess to have been genuinely concerned about fire hazards. But under the circumstances, reasonable people can see a threat for what it is.
Trump views this as vindicating free speech, not threatening it:
….Twitter is completely stifling FREE SPEECH, and I, as President, will not allow it to happen!
— Donald J. Trump (@realDonaldTrump) May 26, 2020
But in fact Trump’s tweet this morning is a First Amendment violation. Because Twitter’s fact check, however ill-advised it might be, is Twitter’s speech. And Trump is threatening to retaliate for that speech, using the power of the Government to do so. Who knows how? It might be regulation or Lord knows what else. But the “big action” to follow is probably not just a personal decision, like, say, Trump leaving Twitter. (We should be so lucky.)
Hold up! I hear you saying. Maybe he is *threatening* (in a vague way) a First Amendment violation, but the tweet itself is not a First Amendment violation, right? Wrong. I believe it is, all by itself. Let’s look at a relevant case: Backpage.com, LLC v. Dart (7th Cir. 2015) 807 F.3d 229.
In that case, a sheriff publicly called on credit card companies to stop dealing with an online business that provided a forum for adult activities, some of which might be illegal. Notably, the sheriff sent letters to the credit card companies alluding to, as the court put it, “their potential susceptibility to ‘money laundering prosecutions and/or hefty fines.'” He signed it in his capacity as sheriff, not as a private citizen.
The sheriff ripostes that he’s not using his office to organize a boycott of Backpage by threatening legal sanctions, but merely expressing his disgust with Backpage’s sex-related ads and the illegal activities that they facilitate. That’s not true, and while he has a First Amendment right to express his views about Backpage, a public official who tries to shut down an avenue of expression of ideas and opinions through “actual or threatened imposition of government power or sanction” is violating the First Amendment. American Family Association, Inc. v. City & County of San Francisco, 277 F.3d 1114, 1125 (9th Cir.2002).
. . . .“[T]he fact that a public-official defendant lacks direct regulatory or decisionmaking authority over a plaintiff, or a third party that is publishing or otherwise disseminating the plaintiffs message, is not necessarily dispositive…. What matters is the distinction between attempts to convince and attempts to coerce. A public-official defendant who threatens to employ coercive state power to stifle protected speech violates a plaintiff’s First Amendment rights, regardless of whether the threatened punishment comes in the form of the use (or, misuse) of the defendant’s direct regulatory or decisionmaking authority over the plaintiff, or in some less-direct form.” Notice that such a threat is actionable and thus can be enjoined even if it turns out to be empty — the victim ignores it, and the threatener folds his tent. But the victims in this case yielded to the threat.
The court ordered the district judge to grant Backpage’s request injunction against the sheriff engaging in such coercion.
So a threat of governmental retaliation for speech is a First Amendment violation. The government official need not actually take the threatened action.
And Trump has done this before.
With all of the Fake News coming out of NBC and the Networks, at what point is it appropriate to challenge their License? Bad for country!
— Donald J. Trump (@realDonaldTrump) October 11, 2017
This habit of his is very dangerous, and will become only worse if he is re-elected.
UPDATE: The President had tweeted more specifics earlier about what he might do, including regulating or closing down social media platforms:
….happen again. Just like we can’t let large scale Mail-In Ballots take root in our Country. It would be a free for all on cheating, forgery and the theft of Ballots. Whoever cheated the most would win. Likewise, Social Media. Clean up your act, NOW!!!!
— Donald J. Trump (@realDonaldTrump) May 27, 2020
Again, the fact that it may be an empty threat does not make it less of a First Amendment violation.