You're Fired !

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

[Article 1, United States Constitution]

Earlier this week, Twitter blundered.

It decided to run fact-checks on Trump's tweets. Attempting to judge the Man that runs the show.

And in doing so, Twitter naturally forgot that Trump had the power to make laws & the ability to fundamentally change the discourse.

Facebook had also been disappointing for Trump over the years.

Twitter's latest impunity in taking on the might of POTUS surely could not be allowed to go unpunished.

So Trump did what he does best. Dialed in his Presidential powers. Mobilized the governmental machinery. Changed the rules of the game and moved the goalpost. Almost akin to striking an amoeba with Thor's hammer.

Twitter did have fair notice, ironically, via a Tweet, when Trump tweeted:

Twitter has now shown that everything we have been saying about them (and their other compatriots) is correct. Big action to follow!

[7.52 pm, May 27, 2020

Donald J. Trump

@realDonaldTrump]

Had Twitter run a fact-check on that tweet, it might have been suitably forewarned of the impending storm. Ironically, it couldn't- for it was a "fact" that hadn't been born yet, a "fact" that was destined to emerge only later, from the ink that would flow through Trump's hand, and at a time, date & place of his choosing.

That time came twenty-four hours later when the United States watched Trump sign the Executive Order on Preventing Online Censorship. Forgetting how he had blocked some of his Followers on the POTUS Twitter Handle when they had trolled him. In that case, the District Court for the Southern District of New York had had to intervene to say that:

Donald Trump had engaged in unconstitutional viewpoint discrimination by utilizing Twitter’s “blocking” function to limit certain users’ access to his social media account, which is otherwise open to the public at large, because he disagrees with their speech.  We hold that he engaged in such discrimination...

Trump's challenge to the District Court Order before the Federal Court of Appeals was thrown out as it held that:

It is clear that if President Trump were engaging in government speech when he blocked the Individual Plaintiffs, he would not have been violating the First Amendment. Everyone concedes that the President’s initial tweets (meaning those that he produces himself) are government speech.  But this case does not turn on the President’s initial tweets; it turns on his supervision of the interactive features of the Account.  The government has conceded that the Account “is generally accessible to the public at large without regard to political affiliation or any other limiting criteria,” and the President has not attempted to limit the Account’s interactive feature to his own speech.  

Considering the interactive features, the speech in question is that of multiple individuals, not just the President or that of the government.  When a Twitter user posts a reply to one of the President’s tweets, the message is identified as coming from that user, not from the President.  There is no record of evidence, and the government does not argue, that the President has attempted to exercise any control over the messages of others, except to the extent he has blocked some persons expressing viewpoints he finds distasteful. The contents of retweets, replies, likes, and mentions are controlled by the user who generates them and not by the President, except to the extent he attempts to do so by blocking.  Accordingly, while the President’s tweets can accurately be described as government speech, the retweets, replies, and likes of other users in response to his tweets are not government speech under any formulation.  The Supreme 18 Court has described the government speech doctrine as “susceptible to dangerous misuse.”  Matal, 137 S. Ct. at 1758.  It has urged “great caution” to prevent the government from “silenc[ing] or muffl[ing] the expression of disfavored viewpoints” under the guise of the government speech doctrine.  Extension of the doctrine in the way urged by President Trump would produce precisely this result.

The irony in all of this is that we write at a time in the history of this nation when the conduct of our government and its officials is subject to wide‐open, robust debate.  This debate encompasses an extraordinarily broad range of ideas and viewpoints and generates a level of passion and intensity the likes of which have rarely been seen.  This debate, as uncomfortable and as unpleasant as it frequently may be, is nonetheless a good thing.  In resolving this appeal, we remind the litigants and the public that if the First Amendment means anything, it means that the best response to disfavored speech on matters of public concern is more speech, not less.

That was in 2018, less than an year into Trump's office. Trump has learnt the ropes of the POTUS Office since. And as veteran of more than 4100 lawsuits to which he has been party over his lifetime, Trump knows that the Law is a double-edged sword- that can be wielded in defense or attack.

So here is what the latest Executive Order effectively did. It changed the Policy.

Vaporising the ground on which Twitter tread with the stroke of the Executive blade.

Section 1 of the Executive Order signed into existence by POTUS declares:

Free speech is the bedrock of American democracy. Our Founding Fathers protected this sacred right with the First Amendment to the Constitution. The freedom to express and debate ideas is the foundation for all of our rights as a free people.

In a country that has long cherished the freedom of expression, we cannot allow a limited number of online platforms to hand pick the speech that Americans may access and convey on the internet. This practice is fundamentally un-American and anti-democratic. When large, powerful social media companies censor opinions with which they disagree, they exercise a dangerous power. They cease functioning as passive bulletin boards, and ought to be viewed and treated as content creators.

The growth of online platforms in recent years raises important questions about applying the ideals of the First Amendment to modern communications technology. Today, many Americans follow the news, stay in touch with friends and family, and share their views on current events through social media and other online platforms. As a result, these platforms function in many ways as a 21st century equivalent of the public square.

Twitter, Facebook, Instagram, and YouTube wield immense, if not unprecedented, power to shape the interpretation of public events; to censor, delete, or disappear information; and to control what people see or do not see.

As President, I have made clear my commitment to free and open debate on the internet. Such debate is just as important online as it is in our universities, our town halls, and our homes. It is essential to sustaining our democracy.

Online platforms are engaging in selective censorship that is harming our national discourse. Tens of thousands of Americans have reported, among other troubling behaviors, online platforms “flagging” content as inappropriate, even though it does not violate any stated terms of service; making unannounced and unexplained changes to company policies that have the effect of disfavoring certain viewpoints; and deleting content and entire accounts with no warning, no rationale, and no recourse.

Twitter now selectively decides to place a warning label on certain tweets in a manner that clearly reflects political bias. As has been reported, Twitter seems never to have placed such a label on another politician’s tweet. As recently as last week, Representative Adam Schiff was continuing to mislead his followers by peddling the long-disproved Russian Collusion Hoax, and Twitter did not flag those tweets. Unsurprisingly, its officer in charge of so-called ‘Site Integrity’ has flaunted his political bias in his own tweets.

At the same time online platforms are invoking inconsistent, irrational, and groundless justifications to censor or otherwise restrict Americans’ speech here at home, several online platforms are profiting from and promoting the aggression and disinformation spread by foreign governments like China. One United States company, for example, created a search engine for the Chinese Communist Party that would have blacklisted searches for “human rights,” hid data unfavorable to the Chinese Communist Party, and tracked users determined appropriate for surveillance. It also established research partnerships in China that provide direct benefits to the Chinese military. Other companies have accepted advertisements paid for by the Chinese government that spread false information about China’s mass imprisonment of religious minorities, thereby enabling these abuses of human rights. They have also amplified China’s propaganda abroad, including by allowing Chinese government officials to use their platforms to spread misinformation regarding the origins of the COVID-19 pandemic, and to undermine pro-democracy protests in Hong Kong.

As a Nation, we must foster and protect diverse viewpoints in today’s digital communications environment where all Americans can and should have a voice. We must seek transparency and accountability from online platforms, and encourage standards and tools to protect and preserve the integrity and openness of American discourse and freedom of expression.

Sub para of Section 2 provides:

(a) It is the policy of the United States to foster clear ground rules promoting free and open debate on the internet. Prominent among the ground rules governing that debate is the immunity from liability created by section 230(c) of the Communications Decency Act (section 230(c)). 47 U.S.C. 230(c). It is the policy of the United States that the scope of that immunity should be clarified: the immunity should not extend beyond its text and purpose to provide protection for those who purport to provide users a forum for free and open speech, but in reality use their power over a vital means of communication to engage in deceptive or pretextual actions stifling free and open debate by censoring certain viewpoints.

Section 230(c) was designed to address early court decisions holding that, if an online platform restricted access to some content posted by others, it would thereby become a “publisher” of all the content posted on its site for purposes of torts such as defamation. As the title of section 230(c) makes clear, the provision provides limited liability “protection” to a provider of an interactive computer service (such as an online platform) that engages in “‘Good Samaritan’ blocking” of harmful content. In particular, the Congress sought to provide protections for online platforms that attempted to protect minors from harmful content and intended to ensure that such providers would not be discouraged from taking down harmful material. The provision was also intended to further the express vision of the Congress that the internet is a “forum for a true diversity of political discourse.” 47 U.S.C. 230(a)(3). The limited protections provided by the statute should be construed with these purposes in mind.

In an unmissable irony, what the Executive Order said of online social media platforms could verily have been said, with equal force, of Trumps blocking Followers on Twitter handle only a couple of years back. And the same rationale could arguably be applied to the Executive Order, in some sense. Restriction of conduct can sometimes operate as clamp on free speech.

The other provisions of the Executive Order involve issuance of:

• Directions to the head of each executive department and agency (agency) to review its agency’s Federal spending on advertising and marketing paid to online platforms. Such review shall include the amount of money spent, the online platforms that receive Federal dollars, and the statutory authorities available to restrict their receipt of advertising dollars;
• Directions to the Department of Justice to review the viewpoint-based speech restrictions imposed by each online platform identified and assess whether any online platforms are problematic vehicles for government speech due to viewpoint discrimination, deception to consumers, or other bad practices;
• Directions to the FTC to consider taking action, as appropriate and consistent with applicable law, to prohibit unfair or deceptive acts or practices in or affecting commerce, pursuant to section 45 of title 15, United States Code. Such unfair or deceptive acts or practice may include practices by entities covered by section 230 that restrict speech in ways that do not align with those entities’ public representations about those practices;
• Directions to the Attorney General to develop a proposal for Federal legislation that would be useful to promote the policy objectives of the Executive Order.

What is equally curious is that the Executive Order makes reference to a United States Supreme Court decision rendered in Packingham vs North Carolina, a case that had originated in a North Carolina legislation that made it a felony for a registered sex offender to gain access to a number of websites, including commonplace social media websites like Facebook and Twitter.

The enactment and the prohibition created thereunder was naturally put to the US- approved ultimate litmus test of legality- a gauntlet thrown to the legislation in the theater of law. The matter eventually rose to the Supreme Court in due course of litigation- it was a landmark decision since it was the first the US Supreme Court had taken up a matter that turned on the relationship between the First Amendment and the modern Internet.

Justice Kennedy, who rendered the Opinion of the Supreme Court noted thus before embarking on an extensive analysis of the amorphous relationship of law and internet:

A fundamental principle of the First Amendment is that all persons have access to places where they can speak and listen, and then, after reflection, speak and listen once more. The Court has sought to protect the right to speak in this spatial context. A basic rule, for example, is that a street or a park is a quintessential forum for the exercise of First Amendment rights. See Ward v. Rock Against Racism, 491 U. S. 781, 796 (1989). Even in the modern era, these places are still essential venues for public gatherings to celebrate some views, to protest others, or simply to learn and inquire.

While in the past there may have been difficulty in identifying the most important places (in a spatial sense) for the exchange of views, today the answer is clear. It is cyberspace—the “vast democratic forums of the Internet” in general, Reno v. American Civil Liberties Union, 521 U. S. 844, 868 (1997), and social media in particular. Seven in ten American adults use at least one Internet social networking service. Brief for Electronic Frontier Foundation et al. One of the most popular of these sites is Facebook, the site used by petitioner leading to his conviction in this case. According to sources cited to the Court in this case, Facebook has 1.79 billion active users. Id., at 6. This is about three times the population of North America.

Social media offers “relatively unlimited, low-cost capacity for communication of all kinds.” Reno, supra, at 870.

On Facebook, for example, users can debate religion and politics with their friends and neighbors or share vacation photos. On LinkedIn, users can look for work, advertise for employees, or review tips on entrepreneurship. And on Twitter, users can petition their elected representatives and otherwise engage with them in a direct manner.

Indeed, Governors in all 50 States and almost every Member of Congress have set up accounts for this purpose. See Brief for Electronic Frontier Foundation 15–16. In short, social media users employ these websites to engage in a wide array of protected First Amendment activity on topics “as diverse as human thought.” Reno, supra, at 870 (internal quotation marks omitted).

The nature of a revolution in thought can be that, in its early stages, even its participants may be unaware of it.

And when awareness comes, they still may be unable to know or foresee where its changes lead. Cf. D. Hawke, Benjamin Rush: Revolutionary Gadfly 341 (1971) (quoting Rush as observing: “‘The American war is over; but this is far from being the case with the American revolution. On the contrary, nothing but the first act of the great drama is closed’”). So too here. While we now may be coming to the realization that the Cyber Age is a revolution of historic proportions, we cannot appreciate yet its full dimensions and vast potential to alter how we think, express ourselves, and define who we want to be. The forces and directions of the Internet are so new, so protean, and so far reaching that courts must be conscious that what they say today might be obsolete tomorrow.

After a survey of the relevant laws and provisions of the legislation under challenge, Justice Kennedy noted:

Even with these assumptions about the scope of the law and the State’s interest, the statute here enacts a prohibition unprecedented in the scope of First Amendment speech it burdens. Social media allows users to gain access to information and communicate with one another about it on any subject that might come to mind. Supra, at 5. By prohibiting sex offenders from using those websites, North Carolina with one broad stroke bars access to what for many are the principal sources for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge. These websites can provide perhaps the most powerful mechanisms available to a private citizen to make his or her voice heard. They allow a person with an Internet connection to “become a town crier with a voice that resonates farther than it could from any soapbox.” Reno, 521 U. S., at 870.

In sum, to foreclose access to social media altogether is to prevent the user from engaging in the legitimate exercise of First Amendment rights. It is unsettling to suggest that only a limited set of websites can be used even by persons who have completed their sentences. Even convicted criminals—and in some instances especially convicted criminals—might receive legitimate benefits from these means for access to the world of ideas, in particular if they seek to reform and to pursue lawful and rewarding lives.

While striking down the offending North Carolina law, the US Supreme Court recalled its intervention in its decision rendered in Board of Airport Comm’rs of Los Angeles v. Jews for Jesus, Inc., 482 U. S. 569 (1987), where the Court had struck down an ordinance that had prohibited any “First Amendment activities” at Los Angeles International Airport because the ordinance covered all manner of protected, non-disruptive behavior including “talking and reading, or the wearing of campaign buttons or symbolic clothing”.

As things stand, less than 6 months remain till the next US elections. Death toll across the US has been mounting by the minute. It is nudging 2 million infected and over a hundred thousand dead, arguably a price for contempt shown to the raging microbe in the early weeks of its inter-continental travel. Would the Americans remember those "martyred" to the cause of their economy when they poll next ?

With the physical spaces restricted or under lockdown, the world had huddled on the virtual space. With physical spaces placed under governmental lockdown, Social Media platforms gained unprecedented activity over the last few months as mans innate need to speak and be heard spilled over into cyberspace.

No other nation understands the power of speech, discourse, media and advertising as much as the United States. The US knows that speech and media have the ability to alter the narrative, hence refashion human perception. There is a reason why the US has (and has always had) the highest spend on advertising- a whopping 243 billion Dollars in 2019, almost three times that of China (at No. 2 in Ad spend) with 96 billion Dollars and six times that of Japan (at No. 3) with 42 billion Dollars.

One might however, recall the US Supreme Court decision rendered last year in the case of Manhattan Community Access Corp. et al vs Halleck et. al. This was a case concerning a New York state law that required cable operators to set aside channels on their cable systems for public access. Those channels were to be operated by the cable operator unless the local government chose to itself operate the channels or designates a private entity to operate the channels.

The New York City had designated a private nonprofit corporation, Manhattan Neighborhood Network (MNN)- the Petitioner there, to operate the public access channels on Time Warner’s cable system in Manhattan. DeeDee Halleck and Jesus Papoleto Melendez- the Respondents in that case, had produced a film critical of MNN to be aired on MNN’s public access channels. MNN televised the film and then later suspended Halleck and Melendez from all MNN services and facilities.

The producers sued, claiming that MNN violated their First Amendment free-speech rights when it restricted their access to the public access channels because of the content of their film. The District Court had dismissed the claim on the ground that MNN was not a state actor and therefore was not subject to First Amendment constraints on its editorial discretion. However, the Second Circuit Court had reversed that the District Court decision in relevant part, concluding that MNN was a state actor subject to First Amendment constraints.

In that case, the US Supreme Court had, in a prescient conclusion, held as follows:

 It is sometimes said that the bigger the government, the smaller the individual. Consistent with the text of the Constitution, the state-action doctrine enforces a critical boundary between the government and the individual, and thereby protects a robust sphere of individual liberty. Expanding the state-action doctrine beyond its traditional boundaries would expand governmental control while restricting individual liberty and private enterprise. We decline to do so in this case.

MNN is a private entity that operates public access channels on a cable system. Operating public access channels on a cable system is not a traditional, exclusive public function. A private entity such as MNN who opens its property for speech by others is not transformed by that fact alone into a state actor. Under the text of the Constitution and our precedents, MNN is not a state actor subject to the First Amendment. We reverse in relevant part the judgment of the Second Circuit...

For the moment, it might be said while the world is battling the Pandemic, with the latest Executive Order, Social Media platforms might just have hit the Ice Age in the United States. An Ice Age single-handedly heralded by The Donald !

Does the Executive Order operate as a clog on the freedom to do business of the Social Media giants, and more, on free speech guaranteed by the self-same Article 1 of the US Constitution, given that economic regulations that cause a chilling effect are just such clogs ? Does the Executive Order unlawfully try to restrain, inhibit and prevent these private entities from fashioning their policies ? Does it throw these entities between the devil and the deep sea, given that they are equally held responsible for the content that they host or allow on their platforms (think the EU General Data Protection Regulation & its ilk) ? Does the Executive Order become capricious in view of the preceding exchange between POTUS and Twitter ?

These are naturally questions with deep constitutional significance that will come up shortly before the US Courts, for this Executive Order, like all others, must also pass the US litmus test.

Don't get it wrong- this is not so much about one man & his whims, but about the relationship of conflict between power, technology & dissent; between the freedom of private enterprise to design their ends & the ability of governmental regulation to intervene, and between the disappearing distance between the personal opinion of a man holding elected office & its becoming law.

And then there is that metaphysical question: how does one determine "truth" in a universe that allows for competing versions of truth, a universe where "truth" is in a state of perpetual existential crisis.

But Twitter is just much American as Trump. And has the same DNA. Naturally then, this story cannot find closure without adverting to Twitter's response...in the same currency.