His executive order aimed at social media companies should be ignored.
Last week Twitter began for the first time to suggest that some of President Trump’s tweets might lack a factual basis. It did so by attaching warning labels to messages in which Mr. Trump made false claims about mail-in ballots. The labels were not to the president’s liking, so he complained about them, accusing Twitter of “interfering” in the 2020 presidential election and “stifling” free speech.
Mr. Trump is free, under the Constitution, to complain all he likes. But he didn’t stop there. He also issued an executive order, which named Twitter numerous times, meant to potentially expose the company to considerable legal liability by weakening the legislative protections that social media platforms enjoy for user conduct. Before issuing the order, Mr. Trump warned on Twitter that Republicans “will strongly regulate” social media companies or “close them down” if they continue to “silence conservatives voices.”
By retaliating against Twitter for what it said in its warning labels, Mr. Trump violated the First Amendment. Official reprisal for protected speech, as the Supreme Court has put it, “offends the Constitution.”
It is crucial to stand up to this kind of bullying. For the sake of what remains of America’s constitutional order, Mr. Trump’s executive order must be regarded by all law-abiding parties as null and void — as “no law at all,” as the legal maxim goes. To act otherwise, to give it one iota of influence, is to grant the president an alarming authority he is not supposed to have: to use the power of the state against speech with which he disagrees.
The two government agencies responsible for carrying out the executive order — the Federal Trade Commission and the Federal Communications Commission — should politely ignore it (or in classic Washington style, put the matter under indefinite consideration). By design, neither agency has a legal duty to obey the president. Their chairmen, Joseph Simons of the F.T.C. and Ajit Pai of the F.C.C., cannot be fired for disagreeing with Mr. Trump, and they have a higher duty to uphold the Constitution.
Those targeted by Mr. Trump’s order — Twitter, Facebook, Reddit and any other host of content on the internet — should take this as an opportunity to demonstrate that they cannot be intimidated by groundless threats. Twitter, to its credit, has taken this path, having declined, so far, to budge. Facebook, less honorably, has reacted to the threats by taking great pains to assure the White House that it thinks it wrong to fact-check politicians. That may be the company’s genuine position, but its assertion in the face of threats is cowardly.
It is worth noting that the problem with the executive order goes beyond the issue of retaliation. The order is also what the law calls a “prior restraint” on the speech of other social media companies that might consider adopting policies similar to Twitter’s fact-check labeling. In addition, the order is an effort to rewrite a congressional statute — the Communications Decency Act of 1996 is the source of the liability protections at issue — which is a power the presidency does not have. Finally, the order evokes statutory authority that the Federal Communications Commission lacks and asks the Federal Trade Commission to take actions that are likely to violate the Constitution.
In short, the order is a legal dumpster fire. Any second-year law student could tell you this, and in a more responsible administration, the White House Counsel’s Office would regard it as its duty to prevent such an order from seeing the light of day. But the order was issued, and the danger is that even if and when it fails in court, it may nonetheless have succeeded in its goal of intimidating social media companies into not doing what the First Amendment gives them the right to do.
This is not to say that Twitter’s labeling and fact-checking policies necessarily strike the right balance between censure and tolerance of user conduct. The speech policies of internet platforms have been disputed and discussed at length since the 1990s, and for good reason: Getting content moderation right is not easy. Different platforms approach the problem differently.
But no one who believes in the importance of free speech wants the president, equipped with the censorial power of government, to be able to dictate what speech policy should be followed by social media companies nationwide. Independence in such matters has now become the equivalent of the editorial independence of the press. Platforms like Twitter and Facebook, both now clearly part of the media, need to show that they will not be cowed by illegitimate threats.