Donald Trump today admitted the First Amendment violation I accused him of yesterday. He explicitly tied his executive order (discussed here by Dana) to his displeasure with the speech of Twitter in fact-checking his tweets:

He just admitted his own First Amendment violation. This is an easy lawsuit to win. https://t.co/mteCJ0PSYZ

— Patterico (@Patterico) May 28, 2020

Government action in retaliation for upsetting political speech. That is core First Amendment activity and a blatant constitutional violation.

Meanwhile, Bill Barr is up there acting like an idiotic conservative Twitter troll.

The Attorney General of the United States repeating, in the Oval Office, the same dopey misunderstanding of Section 230 repeated ad nauseam by every clueless Internet know-it-all. Great job everyone. https://t.co/cBFxUnU0DQ

— Patterico (@Patterico) May 28, 2020

I explained this in a comment yesterday but it’s worth repeating in a post. Can Twitter be accountable for any defamation that appears in their fact checks? Sure. Does the fact that they edit Trump’s tweets to include a link to a fact check mean that they are now a “publisher” for all purposes, subject to lawsuits by Trump or any Twitter user because their “status” as a “publisher” has gone poof? No. This appears to be the wet dream of “conservatives” eager to regulate speech they don’t like as long as it appears on a social media platform, but it’s no more legally accurate than any other wet dream they might have.

I know you see this everywhere — and now Bill Barr is saying it (which ought to be a clue that it’s dishonest) — but don’t take my word for it. The Electronic Frontier Foundation has a useful page with some guidelines that might help educate you on the topic:

Can my commenters sue me for editing or deleting their comments on my blog?

Generally no, if you are not the government. Section 230 protect a blog host from liability for “any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.” This would include editing or deleting posts you consider objectionable, even if those posts would be protected by the First Amendment against government censorship.

Sweet, I can edit the comments on my blog to change the meaning and make commenters I don’t like seem like crazed defamers.

Not so fast. As noted above, Section 230 protects actions taken in good faith, and you may be liable for new information you create. The ability to edit comments is strongly protected, but you should not abuse that power.

Dana also linked this piece by Eugene Volokh, a First Amendment expert, saying the same thing:

Under current law, Twitter, Facebook, and the like are immune as platforms, regardless of whether they edit (including in a politicized way). Like it or not, but this was a deliberate decision by Congress. You might prefer an “if you restrict your users’ speech, you become liable for the speech you allow” model. Indeed, that was the model accepted by the court in Stratton Oakmont. But Congress rejected this model, and that rejection stands so long as § 230 remains in its current form.

If my blog were subject to the rules the social media haters envision in their wet dreams, nobody would be allowed to comment here. Fortunately, my blog is subject to the actual Section 230 rules and not the ones “conservatives” wish Section 230 to be. (By the way, Joe Biden has the same antipathy towards Section 230. Turns out politicians of all stripes dislike free speech that might criticize them.)

Section 230 trutherism is rampant on these here Interwebs. Don’t be a part of the problem spreading it. Be a part of the solution in combating the misinformation. If you’re going around saying “what Twitter is doing is making it a publisher which means it loses its immunity” you are spreading a falsehood and you need to stop.

Even — especially, actually — if you’re Bill Barr.

[guest post by Dana]

Trump allies are getting nervous:

With only five months until the November general election, several Trump advisers, campaign veterans and prominent Republicans see the Trump campaign’s efforts to define and damage former vice president Joe Biden falling short.

…

These Trump supporters worry the campaign’s myriad lines of attack on Biden this spring — from his age to his work with China as vice president to the Obama economic record — are failing to dent the presumptive Democratic nominee. Recent polling shows Trump trailing Biden in key swing states such as Wisconsin and Pennsylvania, with the Republican control of the Senate increasingly up for grabs due to a depressed economy and nationwide angst about the coronavirus pandemic.

…

“Take the gloves off and put him away,” said one Republican close to the White House. “If you have the cash advantage and you have all of June, why are you not burying him?”

The report notes that the Trump campaign originally planned to promote the booming economy and low unemployment rates during the campaign, but then the coronavirus came along, and now that is not a winning message.

One adviser notes that “They have not coalesced around the best message to attack Biden, and the message that Biden is diminished doesn’t scare people enough.”

According to this Fox News poll, Trump allies and supporters are right to be concerned:

More polling data here.

–Dana

[guest post by Dana]

Last week, Mike Pompeo laughingly dismissed any claims of violating House rules and standards by having his staff run personal errands for him:

“I’ve seen the various stories that — like, someone was walking my dog to sell arms to my dry cleaner,” the secretary said, laughing. “I mean, it’s all just crazy. It’s all crazy stuff.”

But one week later:

The senior adviser central to the investigation into allegations that Secretary of State Mike Pompeo used an employee to run personal errands is now leading the charge to find support among former staffers against what they describe as a “smear campaign,” NBC News has learned.

Shortly before he was fired, State Department Inspector General Steve Linick was looking into allegations that Pompeo senior adviser Toni Porter was asked to walk the secretary’s dog, pick up his laundry and make dinner reservations for him and his wife, Susan, NBC News reported.

The State Department’s Foreign Affairs Manual prohibits using the office for personal benefit. Pompeo has denied knowledge of the investigation.

But in an email sent Saturday and obtained by NBC News, Porter and Jim Richardson, the U.S. Agency for International Development’s director of foreign assistance, asked Pompeo’s former congressional staffers to sign a letter in solidarity against the “unfounded attacks,” claiming that a “smear campaign” had been launched against the secretary…

“In our time working with them, Mike and Susan never expressed that a task was so trivial or mundane as to be beneath them,” says the letter, which was obtained by NBC News. “In fact, any task worth doing in the Pompeo organization was worth doing with maximum effectiveness — because that’s what the constituents deserved.”

Obviously, just because one feels that a task is not trivial, or mundane, or beneath doing does not mean that the official isn’t violating the House rules by requesting staff members complete said tasks.

Reportedly, 23 former staffers have signed the letter in support of Pomepeo. However, a fear of retribution might have compelled some to sign:

[A] source familiar with the situation said one former employee of the secretary felt compelled to sign the letter for fear of retribution from his former boss. According to a source familiar with the staffer’s experience, the staffer said that in their experience, the claims that “Mike picked up his own dry cleaning” and “bought his own lunch,” as detailed in the letter, were inaccurate.

While in Congress, Pompeo often asked the staffer to perform personal tasks, a source familiar with the former employee’s experience told NBC News.

The tasks included driving him to congressional events, taking his car through the car wash and filling up his truck and car with gas, on top of fetching his lunch, the source said, adding that the retrieval of Pompeo’s shirts and suits was a task the aide carried out both during and after hours.

–Dana

[guest post by Dana]

Twitter CEO Jack Dorsey has no intention of caving into President Trump’s demands to curtail speech on social media that he doesn’t like:

Dorsey’s company has become the target of President Trump’s fury after it added a disclaimer to one of his tweets earlier this week. First, Trump threatened to close down social-media companies who he thinks are “show bias” against conservatives, and it was reported late Wednesday that he will sign an executive order to remove important legal protections from sites like Twitter and Facebook. In a series of tweets, Dorsey wrote that Twitter will “continue to point out incorrect or disputed information about elections globally. And we will admit to and own any mistakes we make.” He added: “This does not make us an ‘arbiter of truth.’ Our intention is to connect the dots of conflicting statements and show the information in dispute so people can judge for themselves.”

Meanwhile, Trump is expected to announce the signing of his “Preventing Online Censorship” executive order today. Or, as he refers to it, “fairness” in social media:

This will be a Big Day for Social Media and FAIRNESS!

— Donald J. Trump (@realDonaldTrump) May 28, 2020

The draft order, which was reviewed by CNN, targets a law known as the Communications Decency Act. Section 230 of the legislation provides broad immunity to websites that curate and moderate their own platforms, and has been described by legal experts as “the 26 words that created the internet.”

It argues that the protections hinge mainly on tech platforms operating in “good faith,” and that social media companies have not.

“In a country that has long cherished the freedom of expression, we cannot allow a limited number of online platforms to hand-pick the speech that Americans may access and convey online,” the draft order says. “This practice is fundamentally un-American and anti-democratic. When large, powerful social media companies censor opinions with which they disagree, they exercise a dangerous power.”

The draft order also accuses social media platforms of “invoking inconsistent, irrational, and groundless justifications to censor or otherwise punish Americans’ speech here at home.” It also faults Google for helping the Chinese government surveil its citizens; Twitter for spreading Chinese propaganda; and Facebook for profiting from Chinese advertising.

Here’s how the order would work:

Under the order, the Commerce Department would ask the Federal Communications Commission for new regulations clarifying when a company’s conduct might violate the good faith provisions of Section 230 — potentially making it easier for tech companies to be sued.

…

The draft order instructs the Justice Department to consult with state attorneys general on allegations of anti-conservative bias. It bans federal agencies from advertising on platforms that have allegedly violated Section 230’s good-faith principles.

Finally, the draft order would direct the Federal Trade Commission to report on complaints about political bias collected by the White House and to consider bringing lawsuits against companies accused of violating the administration’s interpretation of Section 230.

The provisions regarding the FTC could raise additional legal questions, as the FTC is an independent agency that does not take orders from the President.

Eugene Volokh has an informative analysis of 47 U.S.C. § 230 here.

Facebook CEO Mark Zuckerberg weighs in on the issue:

In an upcoming interview on Fox News’ “The Daily Briefing,” Zuckerberg said that private companies probably shouldn’t be “the arbiter of truth,” and that social media platforms especially “shouldn’t be in the position of doing that.”

He added, however, that he doesn’t think regulations on social media would be the right approach. “I have to understand what they actually would intend to do,” Zuckerberg said. “But in general, I think a government choosing to censor a platform because they’re worried about censorship doesn’t exactly strike me as the right reflex there.”

Facebook uses independent checkers to catch the really bad stuff, according to Zuckerberg. “The point of that program isn’t to try to parse words on is something slightly true or false. In terms of political speech, again, I think you want to give broad deference to the political process and political speech,” he said.

Trump is a drama queen, and a professional victim. There are 100,000 people dead from coronavirus and the economy is a mess, so it’s perfectly natural in Trump World to go after his critics on social media. Everything else has changed, but Trump is as predictable as the day is long. Ginning up controversies, making threats, and playing the perpetual victim are his trademarks. As much as our daily lives have changed, it’s remarkable that nothing in his world has changed.

UPDATE:So far, the FCC Commissioners are divided on Trump’s draft order:

Commissioner Jessica Rosenworcel, a Democrat, harshly criticized the order in a statement Thursday, framing it as a threat to free speech.

“This does not work. Social media can be frustrating. But an Executive Order that would turn the Federal Communications Commission into the President’s speech police is not the answer,” she said. “It’s time for those in Washington to speak up for the First Amendment. History won’t be kind to silence.”

Meanwhile, Republican FCC commissioner Brendan Carr voiced support for the executive order in an interview with Yahoo Finance, arguing that Section 230 should be reexamined if not overhauled.

“I think given what we’ve seen over the last few weeks, it makes sense to let the public weigh-in and say ‘is that really what Congress meant’ when they passed and provided those special protections,” Carr said.

Commissioner Mike O’Rielly, another Republican, said on Twitter that he sees both sides of the debate and urged his followers to “take [a] deep breath.”

–Dana