The Stakes for Donald Trump versus Social Media

Donald Trump v. Twitter has provoked legal, social and political controversy. Most legal commentators view the case with skepticism.  However, in the court of public opinion and political impact—win or lose -- the case can be a victory for free speech advocates.

The Trump lawsuit seeks to overturn his personal ban on social media and strike down Section 230 of the Communications Decency Act.

Section 230 was passed by Congress twenty-five years ago to promote social media companies in their infancy.  The intent was to allow web page operators to post stories without fear of liability, to operate as neutral platforms, exempt from liability by the actions of its users -- a modern town public square where all views were welcome. 

It is settled law, that the First Amendment protects citizens from government censorship, not censorship by private companies.  The Trump complaint alleges Twitter's activity "rises beyond that of a private company to that of a state actor." This is a significant hurdle for Trump's attorneys, and always challenging to broaden existing legal precedents; but Democrats are unwittingly aiding that argument with questionable state activities.  

Prominent Democrats have threatened social media companies if they fail to remove what Biden press secretary Jen Psaki deems "misinformation" and other Democrats consider "hate speech."

Recent examples of looming state actions include: "let's be honest @realDonaldTrump's Twitter account should be suspended," then-Senator Kamala Harris; "It is not out of the question that Trump's tweets could be removed," Speaker Nancy Pelosi; and "Twitter must ban him," Congressman Adam Schiff.  

Trump's legal team will argue these Democrats were threatening new regulations on social media if they did not comply, including removing or significantly amending Section 230.  In effect, Vito Corleone from The Godfather, making social media an offer they could not refuse.  The Trump complaint argues these threats tie social media platforms as de facto arms of the state and therefore First Amendment free speech protections would apply.

Twitter, Google, and Facebook are dominant media forces.  Twitter has 70 million daily active users with approximately 500 million tweets every day.  The rise of social media, coinciding with the demise of newspapers, increases the stakes of the case.

No breaking news: the public distrusts the media.  A recent Gallup poll disclosed only 21% of respondents stated they had a great deal or quite a lot of confidence in newspapers and only 16% in televised news.  Social media can partially fill the void, but only if perceived as legitimate.

My new novel Center Stage: A Political Thriller is a fictional account of mega rockstar Tyler Sloan's campaign as a political independent for the United States Senate.  Yet publicity efforts to advertise my book have resulted in more than two dozen posts on Facebook being rejected without explanation.  Neither the publisher, the publicity team, nor I have a clue why; the only guess is the book cover shows the Capitol building, and the posts refer to a political novel.

In Trump’s favor, the law disapproves of the application of arbitrary and capricious standards.  Where is the logic in Twitter imposing a permanent ban on Donald Trump and allowing Iran's Ayatollah Khamenei an open forum to spread “death to America” and “death to Israel” tweets?  

The timing of the actions of Facebook and Twitter are suspicious, censoring the president of the United States and other conservative views immediately before and surrounding the national election.  

Parler, an increasingly popular social media web page with conservatives, had their app removed from the Apple Store.  Social media allowed posts alleging that Russia offered bounties on American troops which had no documentation or named sources.  Twitter banned The New York Post's coverage of Hunter Biden, despite the Post being the oldest print newspaper in the United States with the nation’s fourth-largest circulation.  Both Twitter and Facebook censored tweets and posts that suggested the coronavirus may have originated with a leak from the Wuhan laboratory.

We now know the main elements of the Post story were factual, the bounty story was false, and the scientific community is divided on the origin of COVID-19, whether from a Wuhan laboratory or a wet market.  This censorship benefitted Democrats when social media placed its heavy thumb on the scales of the presidential election.

Even if the courts deny Trump a win, there are political benefits for Trump and Republicans.  I was campaign manager for two successful Los Angeles City Council campaigns, and certain political maxims apply to every election, one of which is to rally your base.  This case will rally the Republican base, but also those who rebel against authoritarian free-speech censorship.

It is in our common interest for platforms to encourage robust political dialogue. Certainly, some discussions will be incorrect, inaccurate, and misleading.  However, the alternative is worse: one segment of society, badgered by the state, determining what is considered misinformation.

Public policymakers are responding. Florida and other state legislatures are acting to establish requirements for social media platforms.  Social media is likely to challenge any restrictions, and expect appeals to result in a ruling by the United States Supreme Court.  Alternatively, if Republicans ever control Congress, legislation amending Section 230 is near certain.

The media has predictably dismissed Trump's lawsuit.  Vanity Fair termed it "As Stupid As You'd Think;'" and described the Trump press conference as "meandering" with “rambling” remarks.  MSNBC described the lawsuit as "a misguided public relations stunt rooted entirely in dubious claims and conspiracy theories that don't make any sense."  I salute the colorful language, but their political position was not supported by any legal reasoning.

A partially successful lawsuit can transform free speech on social media.  If it fails, social media will be emboldened to continue censorship practices, and the Courts or a Republican majority Congress will be the last bastions to stop it.

In the 1960s, free speech was a rallying cry on the left; many believe the Free Speech Movement began with liberals at the University of California at Berkley in 1964.  It is a sad irony that today’s progressives impose free speech restraints on conservative speech. 

Who decides what disinformation is?  The State?  Democrats?  Republicans?  Let all ideas bloom like wildflowers and have the American public decide.

Wayne Avrashow, a California attorney, former campaign manager in Los Angeles politics, and government commissioner, is the author of “Center Stage: A Political Thriller,” released by RealClear Publishing.

Image: Author's book cover, via Barnes & Noble

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