Trump might wish he hadn’t pushed to block online content moderation

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What happened first was that social media companies like Twitter and Facebook, after years of adopting growth strategies at almost any cost, began to face an outcry over the toxicity of their platforms. This overlapped with the 2016 US presidential election, a hotly contested race in which Donald Trump actively fueled vicious rhetoric online. At the same time, Russian actors exploited the platforms in an effort to boost Trump’s chances of victory, an effort that had minor political effect but massive psychological effect.

So the rigs started to tighten the screws. Twitter, for example, has a system in place that sends people repeatedly flagged for harassment to the background. Suddenly, some of the loudest and most active voices on the platforms found their reach had been limited or their efforts to go viral halted. Many of these people sat on the political right and decided that the problem was not their behavior but the biases of the platforms.

A movement has emerged: social media companies should not be allowed to control the content of their sites! I mean, think about the First Amendment! Lawyers and constitutional experts, supporters of this sort of thing, have pointed out that the First Amendment applies to the efforts of the government to censor speech, not private companies. In fact, they added, forcing Twitter to host, for example, anti-gay content was a form of government imposition on Twitter.

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Right now, there’s a wide partisan divide over how people understand the application of the First Amendment to social media companies. In a poll released by the University of Pennsylvania’s Annenberg Public Policy Center last week, Republicans were much more likely than Democrats to say the First Amendment required Facebook not to moderate content.

As has happened so often in recent years, Republican politicians rushed to capitalize on their base’s misunderstanding. In Texas and Florida, for example, state legislators have passed policies limiting companies’ ability to censor content. Ambitious Republican governors in those states enthusiastically signed the bills into law.

In May, the 11th Circuit Court of Appeals determined that Florida’s law was unconstitutional, a finding that came as no surprise to most legal observers. Shortly thereafter, the Supreme Court suspended the Texas law while legal challenges progressed.

But Texas, unlike Florida, got a hearing in the 5th Circuit. Last week, he issued his ruling on a lawsuit seeking to block Texas law: The law was right and the companies and legal experts were wrong.

“Insofar as it cools something, it cools censorshipreads the opinion, with emphasis in the original. The section of Texas law at issue, he continues, “could make censors think twice about removing speech from platforms in a discriminatory way.”

A social media platform may not censor a user, a user’s expression, or a user’s ability to receive another person’s expression based on:

(1) the user’s or another person’s point of view;

(2) the point of view represented in the User’s Expression or another person’s Expression; Where

(3) a user’s geographic location in that state or any part of that state.

The law only applies to social media companies with more than 50 million monthly active users, a limit that opinion accepts as functionally distinguishing the platforms as meaningful.

The decision was written by Justice Andrew Stephen Oldham, appointed to the court by Trump. Trump’s sweeping effort to reshape the judicial system to be more favorable to the political right has been particularly forceful on the 5th Circuit. The result was a bench that moved noticeably to the right.

Trump, of course, was a strong proponent of bringing social media companies to heel, which meant he fought to keep his allies from facing repercussions for their activity. He hosted a White House “summit” in 2019 centered on the argument that companies were acting with bias. This was followed by regular excoriations against the platforms on the platforms themselves.

Trump and his allies received a political gift when in October 2020 Twitter and Facebook limited the reach of a New York Post article about Joe Biden’s son, Hunter. After coming under fire for propagating Russia’s interference efforts in 2016, the platforms were wary of the story whose provenance is dubious, but the action was immediately framed as a function of political bias. This was compounded when Trump’s dishonest claims about election results were flagged or concealed and ultimately when he was kicked off the platforms after his campaign lies and pleas to come to Washington fueled the Capitol riot.

The 5th Circuit decision is not the last word; the case will likely head to the Supreme Court. But that only reinforces how Trump’s presidential nominations could help cement his goal of holding social media companies to account. Justices Brett M. Kavanaugh and Amy Coney Barrett, both Trump appointees, sided with the majority in supporting the emergency request to suspend the Texas law in May. That doesn’t mean they’ll equally oppose state law if they’re asked to weigh in on the fight.

Being started from Twitter, however, opened a door that somewhat complicates the picture. After months of delay, Trump’s bespoke social media site, Truth Social, has started welcoming users. Frustrated with the rules of the game on existing platforms, Trump and his allies created their own sandbox. While the platform has struggled, Trump has leaned into it, posting regularly and encouraging his followers to do so as well.

“Another of our highest priorities under the Republican Congress will be stopping left-wing censorship and restoring free speech in America, which we don’t have,” Trump said at a rally in the Ohio this weekend to support GOP congressional candidates. Then he went a little off-script: “And now go out and join Truth Social, which is doing great. It’s hot and it’s way better than Twitter will ever be. Twitter is having a lot of headaches right now, folks.

Truth Social also has terms of service that users agree to. These include stipulations that contributions must not be “lewd, lewd, lascivious, filthy, violent, harassing, libelous, libelous, or otherwise objectionable” lest posters face “termination or suspension of your rights to use the service and the withdrawal or deletion of your contributions.” In other words, Truth Social reserves the right to censor users for essentially any reason.

Texas law does not apply here; Truth Social doesn’t have 50 million monthly active users, although Trump certainly hopes it will soon. But if the Supreme Court upholds the 5th Circuit’s decision, nothing would theoretically prevent a state from passing a law like the one in Texas that also applies to Truth Social.

Trump and his allies would argue that Texas law focuses on censorship based on perspectives which, of course, is the argument they’ve made about Twitter and Facebook’s content moderation policies all along. But, in practice, Truth Social reserves the right to remove content in the same way as Twitter. It’s just that Twitter – in the spotlight for so long – has much more specific prohibitions in place. Both companies claim that users who break their rules can be booted, which legal experts say is perfectly within their rights.

What the right has argued for years is that the moderation of Twitter and Facebook is often not driven by effects of a given position (harassment, incitement, misinformation, etc.) but, on the contrary, by its ideology — something that has never been solidly demonstrated. But that’s what the Texas law purports to correct, with the effect of loosening any moderation either directly or through the chilling effect on “censorship” that the court opinion celebrates.

Trump raised this question. He appointed judges who could affix his position in law. And, because he did, he might find his private company perplexed in its efforts to define the limits of its platform.

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