Analysis

Trump Has Limited Tools To Push Back Against Social Media

Law360 (November 6, 2020, 8:00 PM EST) -- President Donald Trump fired off a missive in the wee hours Friday suggesting yet again that social media platforms should be punished for labeling his tweets about vote counts as misleading and hiding a number of his posts.

Former vice president Joe Biden was called the winner of the election Saturday morning after apparently winning Pennsylvania, a result Trump is challenging in the courts. Trump now likely has little time and few avenues to strike down a liability shield that he says gives the platform undeserved protection from legal action.

Around 2 a.m. Friday morning, Trump wrote that "Twitter is out of control, made possible through the government gift of Section 230!"

The legal provision he was criticizing, Section 230 of the Communications Decency Act, offers websites broad immunity from libel and other lawsuits over user-generated content as long as the sites employ reasonable moderation practices. The Trump administration wants the shield to be revoked when companies display perceived biases in their moderation practices, such as removing or flagging content without explanation. Trump and other Republicans assert that posts from conservatives are more likely to be flagged or removed.

Currently, companies must only use their best judgment when deciding how to enforce their published policies to limit the spread of illegal and otherwise harmful content. Twitter's policies include a prohibition on using the platform "for the purpose of manipulating or interfering in elections or other civic processes."

Using these protections, Twitter has stepped up its real-time fact checking and labeling as the 2020 election vote-counting process has played out, in many cases hiding Trump's baseless claims about election fraud and preventing them from being shared.

The barrage of misinformation emanating from Trump's page has been difficult for the platform and independent researchers to keep up with, said Yosef Getachew, media and democracy program director with watchdog group Common Cause, necessitating harsher moderation steps.

Common Cause wrote a letter to Twitter CEO Jack Dorsey on Thursday, urging him to temporarily lock Trump's account to "provide a cooling period to recognize the multiple violations" of Twitter's policies he's posted.

For example, Trump incorrectly maintains he's already won the election and that his victory is being stolen by votes counted after Election Day.  

"The intensity and frequency of these violations suggests that President Trump will continue to use Twitter's platform to promote disinformation in the period ahead," according to the letter.

The National Hispanic Media Coalition echoed the call for Twitter to step up its moderation practices, despite Trump's complaints about unfair enforcement.

The group's president, Brenda Victoria Castillo, said that "accounts which repeatedly violate content policies — particularly those who are super spreaders of disinformation [must] be suspended indefinitely from the respective platforms. This demand extends to public figures, politicians, and the current president of the United States."

Although groups like Common Cause and NHMC are trying to stem the tide of misinformation in real time, the Trump administration has already set in motion an administrative process to curtail the reach of Section 230 protections as a form of retaliation.

Shortly after Twitter labeled a pair of his tweets about mail-in voting as inaccurate this summer, Trump issued an executive order calling on the FCC to launch a rulemaking that would spell out when platforms' moderation practices could warrant stripping them of Section 230 immunity.

FCC Chairman Ajit Pai agreed to take up the rulemaking a day after Justice Clarence Thomas also suggested it's time to rein in the so-called Big Tech liability shield. As it stands, the FCC and congressional Democrats say they have "significant concerns" that the independent agency's actions could be viewed as being heavily influenced by the White House.

It's still possible the FCC rulemaking could go forward during the remainder of Trump's first term, but supporters of Section 230 reform have a very short time frame to push it through.

"He can continue to pressure the FCC to do something. That's the beginning and end of what he can do. This is really up to Congress and the courts," said Andrew Jay Schwartzman, senior counselor at the Benton Institute for Broadband & Society.

That the Section 230 rulemaking could garner a majority of votes with the current FCC lineup is highly doubtful. FCC Republican Brendan Carr is the only sitting commissioner who has said he agrees with Trump's and Pai's vision for bringing social media moderation under the FCC's purview.

The FCC's third Republican, Michael O'Rielly subtly spoke out against the proposal and Trump subsequently revoked his nomination to another term.

Trump instead nominated U.S. Commerce Department official Nathan Simington, who helped craft the administration's Section 230 petition to the FCC, to fill the Republican seat that O'Rielly will vacate before the end of this year. However, Simington's confirmation isn't a sure thing and would have to be fast-tracked so he could be installed at the FCC and vote on a potential rule. So far, the agency has collected comments on the issue but has not teed up a draft of any such rule.

"Trump should be trying to work with the Senate to get Simington confirmed as quickly as possible," said Nathan Leamer, former adviser to Pai. "That's the biggest thing he could do."

In the meantime, O'Rielly continues in his FCC post.

Until O'Rielly steps down and is replaced by Simington, the measure has scant hope of getting passed at the FCC, according to Schwartzman. With O'Rielly's disposition on the rulemaking "lukewarm at best," he likely has little to no incentive to help out the Trump administration now that his time at the commission is limited, Schwartzman said.

In the near term, Getachew noted that under Trump's executive order, the administration could rush agencies to review their advertising campaigns on social media platforms and revoke messages on platforms deemed to be treating the president unfairly. This could have harmful impacts, including hamstringing the Centers for Disease Control and Prevention's reach of COVID-19 information, he said.

"These basic services ... could get limited, but this is all time-based, and there's not much you can do," Getachew said.

--Editing by Orlando Lorenzo.

Update: This story has been updated to reflect former vice president Joe Biden was projected to win Pennsylvania.

For a reprint of this article, please contact reprints@law360.com.

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