I have a column criticizing Twitterfor its labelling of tweets from President Donald Trump as presumptively false. Twitter has yielded to demands in Congress to censor and regulate political speech. In signature style, however, Trump promptly bulldozed the high ground in the controversy by threatening to close down social media companies through retaliatory regulations. The First Amendment was written to bar that very authority in either the President or Congress or both. The President cannot be the putative victim of private censorship while claiming the authority to engage in government censorship. In fairness however Democratic leaders have threatened such a regulatory crackdown in the past. The coverage on Trump’s threat telling omits the fact that Democratic leaders and presidential candidates have made the same threat in the past.
Trump went on Twitter to warn social media giants that the federal government could “strongly regulate” or “close them down” if they continue to “silence conservative voices.”
Some of us who have long criticized Twitter, Facebook and other companies for bias and speech regulation. However, such private speech regulation presents a difficult “Little Brother” problem under our Constitution, which is focused on state action. Ironically, Trump is suggesting a more chilling prospect of using government power to retaliate against companies due to their bias. That is neither nuanced nor difficult. It would constitute a core violation of the First Amendment.
The President tweeted “Republicans feel that Social Media Platforms totally silence conservatives voices. We will strongly regulate, or close them down, before we can ever allow this to happen. We saw what they attempted to do, and failed, in 2016. We can’t let a more sophisticated version of that happen again.”
Again, I have been a long critic of these companies and their policies. However, this threat is chilling and wrong. It is a circular call for retaliatory regulation to deter the viewpoint bias.
What is particularly bizarre is that the President was winning in this fight. Truth will come out. Many commentators, even some opposed to Trump, raised concerns over the action. This is precisely what Justice Louis Brandeis meant in his concurring opinion in Whitney v. California (1927) when he declared “If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the process of education, the remedy to be applied is more speech, not enforced silence.”
The President has long struggled with the core values of the free press and free speech, even when those values work to his own advantage. His original objections against Twitter were well-founded and compelling. He then assumed the very same abusive position as the company in seeking to limit or regulate speech. The difference is that he was speaking as the head of the Executive Branch. That is precisely what the First Amendment was designed to protect against. That is not the “Little Brother” problem. That is the “Big Brother problem.”