- President Donald Trump threatened to “strongly regulate” or entirely shut down social-media companies shortly after Twitter fact-checked two of his tweets pushing conspiracy theories about mail-in voting.
- But legal experts told Business Insider the president has “absolutely no legal authority” to carry out his threats and described Trump’s efforts as “empty virtue signalling to his base.”
- “It’s very clear that what he is really doing is trying to bully Twitter into continuing to allow him to broadcast whatever he wants to, however false it is, with complete impunity,” a Drexel University law professor told Business Insider.
- Visit Business Insider’s homepage for more stories.
President Donald Trump struck a forceful tone this week when he threatened to “strongly regulate” or entirely shut down social-media companies for what he perceived as an anti-conservative bias.
But legal experts say he has “absolutely no legal authority” to carry out his threats.
The president’s early-morning tantrum was catalyzed by Twitter’s decision on Tuesday to add fact-checking links to two of his tweets, in which he alleged mail-in voting in California would be “substantially fraudulent” and lead to a “Rigged Election.”
Twitter’s alert – the first of its kind on the site – linked to a “Moments” page titled “Trump makes unsubstantiated claim that mail-in ballots will lead to voter fraud” that listed a series of facts contradicting his claims.
Soon after, Trump accused the social-media platform of “interfering in the 2020 Presidential Election” and said he wouldn’t allow Twitter to stifle free speech.
“Republicans feel that Social Media Platforms totally silence conservatives voices,” Trump tweeted on Wednesday morning. “We will strongly regulate, or close them down, before we can ever allow this to happen.”
The president said his administration would take “big action” against the tech company.
Ken White, a First Amendment lawyer and criminal-defence attorney at Brown White & Osborn (and also a blogger at the popular legal site Popehat), told Business Insider that Trump’s tweets were “empty virtue signalling to his base.”
“The government has no power to close down social media, and social-media programs have both statutory and First Amendment rights to moderate and comment as they see fit,” he said.
Notably, a federal court last year found that the president violated the First Amendment by blocking Twitter users, thus depriving them of participating in a public forum.
‘This isn’t China’
It’s not the first time the Trump administration has threatened legal action against social-media companies who make decisions the president disagrees with. Last year, the White House drafted a proposal to regulate social-media platforms to confront allegations of bias against conservatives.
The proposal asked the Federal Communications Commission to create new regulations about how social-media companies are allowed to moderate speech on their platforms. It also called for the Federal Trade Commission to keep a public list of complaints from users who believe their rights have been violated by online moderation.
But Section 230 of the Communications Decency Act gives social-media companies broad authority to moderate speech.
And though members of Congress have threatened legislation on the issue for years, the threats seem “more like culture-war posturing than substance,” White said.
Hannah Bloch-Wehba, a law professor at Drexel University who specialises in civil liberties and cyber issues, called Trump’s threats against Twitter “totally asinine.”
“They completely lack any kind of legal foundation whatsoever, and it’s very clear that what he is really doing is trying to bully Twitter into continuing to allow him to broadcast whatever he wants to, however false it is, with complete impunity,” she told Business Insider.
By making his threats, Bloch-Wehba added, Trump is “holding private enterprise hostage” in a cultural and political “proxy war” with Democrats.
Clay Calvert, a law professor at the University of Florida and director of the Marion B. Brechner First Amendment Project, told Business Insider that Trump has no legal authority under his executive-branch powers to unilaterally shut down a social-media platform “simply because he disagrees with its policies for how it treats and now fact-checks his tweets.”
“We have the First Amendment to protect the speech of private entities – Twitter being one of them – and individuals from government censorship, whether the censorship emanates from the legislative, executive, or judicial branch,” Calvert added.
Carl Tobias, a law professor at the University of Richmond in Virginia, told Business Insider in an earlier interview that Trump’s threats were “mostly bluster” and he was unlikely to be able to follow through on them.
The president could issue executive orders, try to push federal agencies to regulate Twitter, or ask Congress to pass legislation on the matter, “but none will be fast or help him before November,” Tobias said.
There is also no legal precedent that would give Trump the power to shutter a social-media platform for fact-checking his claims, which companies are completely within their rights to do.
Kate Ruane, the senior legislative counsel at the American Civil Liberties Union, told Business Insider that governments have in the past tried to intervene in content-moderation decisions by private companies.
But those efforts have typically resulted in “debacles that undermine online privacy, safety, and speech,” Ruane said. The proposed EARN It Act, for instance, has been criticised for its potential to infringe on users’ rights to free speech and online security.
Moreover, Trump’s threats on the issue “consistently misapprehend the very real online censorship problem, ignoring the reality that black activists, sex workers, and the LGBTQ community are the ones who are often disproportionately silenced by online platforms,” she added.
Many First Amendment experts are concerned about the broader implications of Trump’s crusade against the media and fact-checking. Bloch-Wehba said she worried the president’s efforts were “destabilizing people’s faith that what they are learning is true and unsettling the entire foundation of our democratic system.”
“This isn’t China, where the government censors the social media as it sees fit and at will,” Calvert said. “But it seems Trump wants to move the United States in that direction.”