Trump Has A Legally Dubious Plan To Turn Social Media Into His Propaganda Arm
President Donald J. Trump listens as Chairman Ajit Pai of the Federal Communications Commission delivers remarks on U.S. 5G deployment technology Friday, April 12, 2019, in the Roosevelt Room at the White House. (Official White House Photo by Shealah Craighead)
Republicans and their supporters on social media are obsessed with the idea that they’re not getting as many likes and replies as they should not because their views and policies are widely reviled, but because the evil globalists running Google, Twitter, YouTube, and Facebook are secretly suppressing their God-given right to as many followers, views, and engagements as they believe they’re entitled to get. In this spirit, President Donald Trump oversaw the drafting of an executive order giving the FCC control over social media moderation.
At the heart of the matter is Section 230 of the Communications Decency Act, which allows tech companies host and moderate most user-submitted content on their own judgment. The idea is that the platforms themselves merely provide a place for users to communicate and it’s up to the users to make sure their content meets certain legal guidelines while the companies can set the tone for the community. And unless the platform allows blatantly illegal content, the government leaves them alone, assuming that the companies are acting in good faith in their efforts until proven otherwise.
The draft of the executive order asks the FCC to assume bad faith on the part of social media platforms which don’t send a full summary of the reasons to users they ban or whose content they take down, and make sure those reasons aren’t seen as deceptive or unfair. At the same time, the FTC would be asked to field complaints from users unhappy with moderation on their platforms of choice and work with the FCC to investigate them. Both agencies are, rather understandably, far from thrilled about this, refusing comment to various media sources, and you can see exactly why.
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Sketchy Logistics And Even Sketchier Optics
First and foremost, this proposal would open up the floodgates to any user who thinks they were unfairly censored and force the social network to justify the decision. It’s one thing when a very newsworthy and famous photo gets removed. It’s another when a conspiracy theory or a scam is taken down. Imagine neo-Nazis, anti-vaccine activists, white supremacists, anti-Semites, and snake oil peddlers knocking on the FTC’s doors and demanding that the government has the social network reinstate them or bring back their offending posts and pages.
Even if their claims have absolutely no merit — and let’s be honest, the overwhelming majority won’t, and the ones that will be brought back will usually return on a technicality — they will still have to be logged and investigated. According to the White House, they received some 15,000 complains of bias in just a few months. Both the FCC and FTC will be slammed with a tsunami of grievances they’ll need to process and investigate at a non-trivial expense. When the country is racking up record deficits north of $1 trillion a year, how good are the optics of spending tens of millions to arbitrate the fate of random social media posts?
Even far less extreme examples also pose serious questions. The belief that conservative and edgy right-wing users are being “shadowbanned” is widespread, and it’s far from uncommon to see complains that a certain pro-Trump screed or anti-liberal meme didn’t get as many likes or retweets or shares as it should have because the sinister liberals running those platforms aren’t showing it to a large enough audience. Just imagine how many complaints of shadow banning the FTC will receive only to find out that no one who follows the user liked what they posted, go back to the user with this information, and receive another complaint that the company must be lying about the first instance.
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The Government Can’t Tell Social Media How To Write Its Code
But perhaps even more important is the fact that media platforms aren’t staffed by large teams of human editors who determine what is and isn’t allowed on the site. They’re run by algorithms which can both flag things for moderators or lead users down rabbit holes of a dystopian fake news fantasy, and despite GOP threats to audit those algorithms, the government doesn’t have the authority to dictate how social media networks should be run or how they should determine appropriate engagement and content moderation according to policy experts at the libertarian think tank TechFreedom, who testified at a Congressional hearing on the subject.
Since the government would now be indirectly telling social media companies how to calibrate their algorithms to avoid complaints of bias and censorship, and then double-checking whether they’re running their site according to the whims of the current administration by investigating those complaints, the companies could protest that their First Amendment rights and autonomy are being infringed. Instead of being free to run their businesses as they see fit, they’re being told what sort of content their servers should host, what speech they’re not allowed to exclude from the platforms they own, and with what users they’re supposed to associate.
In short, what the White House wants is to tell Facebook CEO Mark Zuckerberg that he has to allow posts that attack Jews, and Twitter CEO Jack Dorsey that deleted posts by a politician calling for physical harm of his or her opponents after tens of thousands of reports must be restored, but lacks the power to do that. Neither the FTC or the FCC have the jurisdiction to force tech companies to comply with their decisions. Even a law passed by Congress dictating how these companies are to run their business would meet significant difficulties in court on First Amendment grounds and very likely be ruled unconstitutional.
But Wait, There Are Even More Legal Hurdles!
Another potential issue here is that laws and executive orders can’t be too vague, and trying to figure out whether MAGACuckStomper420’s comment citing the QAnon conspiracy theory as proof that all liberals are actually pedophiles was unjustly censored on a social media platform invites a lot of questions and lacks a clear standard. The FCC would need to very clearly define how it would review the complaints about a $600 billion industry unwilling to put the algorithms that make their businesses work in jeopardy without a messy and protracted legal fight. They could probably even argue that allowing a president to police their moderation could lead to a slippery slope of abuse in which social media merely becomes a servile propaganda tool of the state.
Being private digital entities, they’re free to run their sites and apps as they please as long as they don’t promote or sell anything illegal, and have no obligation to give everyone a platform and an audience. They simply choose to do that as much as they can, hoping it will be good for business. In order to regulate how they work, the government would need to successfully argue that social media has to be reclassified as a public utility, that it’s every bit as important to our daily lives as running water, electricity, and phones, and any interruption in its availability would be hugely detrimental to our lives. And while we could make the argument that the internet does meet such a standard, it’s very unlikely that social media does.
Just consider the exodus of younger generations from Facebook in favor of messaging apps or just sticking with Instagram for their social media diet. Who wants to be the lawyer who tells a panel of federal judges — then possibly the Supreme Court — with a straight face that being able to share pictures and musings with friends and strangers is just as important as having power or running water? If this is the route the White House chooses to get its way, the job will fall to the poor sap who draws the short straw, knowing full well that he or she is defending an argument and executive order crafted in bad faith, which will be pounced on by lawyers for Facebook and Twitter in a heartbeat.
The Real Reason Trump Wants To Regulate Social Media
We can call Donald Trump many things but a stealthy master tactician is not one of them. After Twitter committed to purging as many bots from its platform as it possibly could, he lost some 100,000 followers and all of the retweets and likes they automatically generated. In response, Trump summoned the company’s CEO to complain about it, and was not satisfied to learn that some of his followers were not living, breathing people but bits of code which had to be banned from a platform which was meant for actual humans. In fact, he hosted a gathering of right-wing social media provocateurs to complain about tech companies and their unfairness.
As is his custom, he made up his mind and absolutely no one can change it regardless of how much evidence they present to the contrary, and he’s fumed about a supposed anti-conservative bias in tech for more than a year now. It probably wouldn’t take much for tech companies to take the tweets and pattern of behavior from Trump and his team to show that this executive order is made in bad faith and represents nothing more than a personal grudge, and will amount to the government policing social media to better suit Trump’s whims, regardless of real-world facts for which he’s shown nothing but contempt all of his adult life.
The bottom line here is that in a democracy, there is no reason for the government to force its way into second-guessing every decision a tech company makes about how to run its platform for the sake of making certain politicians happy. It crosses just about every line that any nation which hasn’t decided to become a Second World banana republic draws for itself, and it shows an astonishing amount of insecurity and weakness from a political party which brands itself as the manliest of manly macho men. They’re there to defend you from the UN New World Order because they’re the only ones with the cajones to do it. But post a few too many mean tweets about them on social media and suspend an account they liked, and they throw a public, and very likely illegal, fit.
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