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.