Trump is set to announce an executive order against social media companies

[ThinkingSapien]

BTW: Since these ideas keeps coming up, here are a couple of 2020 court decisions.

https://www.politico.com/f/?id=00000172-56e7-dc3e-aff6-5eff48dc0000

Freedom Watch’s First Amendment claim fails because it does not adequately allege that the
Platforms can violate the First Amendment. In general, the First Amendment “prohibits only
governmental abridgment of speech.” Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921,
1928 (2019). Freedom Watch contends that, because the Platforms provide an important forum for
speech, they are engaged in state action. But, under Halleck, “a private entity who provides a forum
for speech is not transformed by that fact alone into a state actor.” Id. at 1930. Freedom Watch fails
to point to additional facts indicating that these Platforms are engaged in state action and thus fails
to state a viable First Amendment claim.

That leaves Freedom Watch’s discrimination claim under the D.C. Human Rights Act. The
Act prohibits discrimination on the basis of political affiliation in “any place of public accommodations.” D.C. CODE § 2-1402.31(a); see also id. § 2-1401.02(24). Relying on a D.C.
Court of Appeals case interpreting that statute, U.S. Jaycees v. Bloomfield, 434 A.2d 1379 (D.C.
1981), the district court concluded that only physical places within the District of Columbia qualify
as “places of public accommodation.” Freedom Watch, 368 F.Supp.3d at 39. Because Freedom
Watch had not alleged that the Platforms operated out of a particular place in D.C., but only that
they do business in the District, the district court dismissed the claim. Id.

Another relevant 2020 decision from February was from PragerU v YouTube.

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/02/26/18-15712.pdf

Addressing the First Amendment claims, the panel held that despite YouTube’s ubiquity and its role as a public facing platform, it remains a private forum, not a public forum subject to judicial scrutiny under the First Amendment. The panel noted that just last year, the Supreme Court held that “merely hosting speech by others is not a traditional, exclusive public function and does not alone transform private entities into state actors subject to First Amendment constraints.” Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921, 1930 (2019). The panel held that the Internet does not alter this state action requirement of the First Amendment. The panel therefore rejected plaintiff’s assertion that YouTube is a state actor because it performs a public function.

Using private property as a forum for public discourse is nothing new. Long before the Internet, people posted announcements on neighborhood bulletin boards, debated weighty issues in coffee houses, and shouted each other down in community theaters. Juxtaposed with today’s digital platforms, these analog means seem quaint. YouTube, LLC alone has more than 1.3 billion users—more than 30 million visitors every day—and 400 hours of video uploaded every hour.

 

[Funvod]

Can…can he do that? Legally speaking?

 

[Cruciferi]

Short Answer: Probably Not

 

[StudentMI]

This is why I suggested a return to the Fairness Doctrine might be better than fighting over Section 230 designations. The Fairness Doctrine was the law of the land from 1949 to 1987 with some provisions surviving until 2000.

Sure made a difference in the wars that we took part in during those years. Read Chomsky on that. The Fairness Doctrine is just a solidified mainstream power line.

 

[ThinkingSapien]

Can…can he do that? Legally speaking?

The court cases he reference to back his executive order were also used in many of the attempted cases against social media co.pa ies since MySpace (anyone remember them) and were invariably recognized is inapplicable in those cases.

His executive order may also be unconstitutional if it is found to limit the speech of any of these companies.

Having read the text of the executive order there are a lot of criteria that is heavily subjective.

But this wouldn’t the first order he made that didn’t pass constitutional challenge.

 

[HarryStotle]

The problem for Trump is this:

Facebook is a privately-owned company. So are Google, Twitter, Snapchat, and all the other social networks. Because they are privately owned, they have to right to control what content is allowed and not allowed on their service.

His executive order will be toothless. He thinks he can do anything with an executive order. God Complex?

Red herring. The fact that the companies are privately owned does not mean they have carte blanche to violate their own legal mandates.

Utility companies and cell phone providers are also “private companies.” That does not mean they can “listen in” on your conversations and decide what you can say or do on their platforms. A utility company cannot terminate service because they don’t like your political affiliation.

There are certain legal obligations that come with running every business. A publishing company is regulated differently than a neutral platform. Section 230 exemptions that protect media companies from being sued for libel or other potential lawsuits depends upon these companies acting in a neutral manner as an ‘open platform’ akin to a phone company. if these companies begin curating, editing or censoring content they have effectively abandoned their “platform” status and are no longer exempt from legal jeopardy. They could be shut down for acting contrary to their legal mandates as neutral platforms by acting as publishers when they have no legal right to do so.

 

[Maximus1]

I think the Public Accommodation argument looks very weak, as does the first Amendment argument.
That said, these platforms are , for lack of a better term, " something else."
The points about their size is something that begins to encroach on the purpose of the first amendment to the extent that indirectly, the first Amendment contemplates state action by the government entity. When private actors are the sole judges of what and who get to stand on the soap box they created, that’s ok for a soap box. ( At what point does a soap box grow so big, it is indistinguishable from something measurable in terms of power, similar to state action? (due to size, exclusivity, and effect). The founders certainly never dreamed of such a soap box. In 1776 only God would have had such a soap box.
The purpose of antitrust seems relevant, but not so much as a promotion of competition. The goal of Election Law is implicated as well. A private company and " company policy" perform a quasi- judicial and quasi- legislative function on an exclusive world, and national forum. Interests outside our nation can now participate anonomously on our national soap box. Corporate secret process governs and is final.
Judicial watch might be wrong legally. They might have motivation that is partisan and self serving. But their concern is not without merit for the rest of us considering national interest.
The Constitution was concerned with the evils of a sovereign. What happens when private fictions, which is what a corporation is, encroach on sovereign like power over speech. Commercial and political. They threaten it seems , as George once did, to our experiment.

 

[ThinkingSapien]

I think the Public Accommodation argument looks very weak, as does the first Amendment argument.
That said, these platforms are , for lack of a better term, " something else."

Those arguments have already been used in arguments against social media companies ies since MySpace. What I find personally perplexing is how do the same arguments keep coming up of they have invariably failed. Just this past week a federal court dismissed a case using some of the same arguments from Laura Loomer (attempting g to sue Google, Facebook, Apple, and Twitter).

At what point does a soap box grow so big, it is indistinguishable from something measurable in terms of power, similar to state action?

Company towns reached that limit. It wasn’t so much about the size as much as them taking over the functions of the government and owning areas that would be treated as public. It has been argued that online service providers are like company towns, and the courts have rejected the arguments.

 

[PaulinVA]

Twitter fires back:

(Please Note: This uploaded content is no longer available.)

 

[Maximus1]

Good faith arguments can be reconstituted in certain ways, even when rejected in the past by some court somewhere.
A material variation in facts. Or the omission of an available argument in the past, so that the previous decided case did not address the argument. These can be argued as making precedent not controlling( just two examples).
Also , there are conflicts between courts on points of law and fact. This is a recognised argument in favor of discretionary appellate jurisdiction.
These conflicting precedent rarely were published the same day. You can risk sanction or ethics complaint also.
Company towns, I think of Ludlow to illustrate the potential. Payment in company money that can only be used at company stores sounds a lot like a species of slavery to my ears.

 

[PaulinVA]

The President Versus the Mods (Published 2020)

President Trump’s taking aim at Twitter for fact-checking his tweets is part of a long tradition upheld by aggrieved internet trolls. The stakes are high.

www.nytimes.com

But looking at Mr. Trump as an aggrieved user of a fractious internet forum, rather than a politician making high-minded claims about freedom of speech, clarifies the dynamics at play here. Mod drama is never really about who’s allowed to say what, or which specific posts broke which specific rules. Often, it’s part of a power struggle between chaos and order, fought by people who thrive in a lawless environment.

 

[Maximus1]

The Presidency has to be an exercise of restraint often. Not one to test the limits of the world’s most powerful man. We cannot even address this tradition till Trump is voted out

 

[RidgeSprinter]

I swear this IPOTUS is the biggest cry baby in world history. He is always feeling resentment at having been unfairly treated( Definition of aggrieved - I had to look that word up for clarification ). I don’t doubt for one second that deceased Presidents are rolling over in their graves the way he is disgracing the office of the Presidency. I really feel sorry for his descendants, for the history books will not be kind to his Presidency.

 

[RidgeSprinter]

24 hours later and still no “Executive Order”.

I STAND CORRECTED. SEE BELOW.

 

[PaulinVA]

24 hours later and still no “Executive Order”.

There you go.

https://www.whitehouse.gov/presidential-actions/executive-order-preventing-online-censorship/

 

[sallybutler]

Don’t the terms of service that Trump agreed to when he joined Twitter say that he agreed to abide by their rules? Since he doesn’t like their rules, isn’t he doing the Presidential version of taking the bat and ball and going home because he isn’t very good at baseball?

 

[RidgeSprinter]

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.

I find it ironic, IPOTUS seeks transparency and accountability when he does not want to give any himself.

 

[ThinkingSapien]

The Presidency has to be an exercise of restraint often. Not one to test the limits of the world’s most powerful man. We cannot even address this tradition till Trump is voted out

I don’t know how responsible that Trump is for the actions of the Trump Campaign. But the Trump Campaign recently tried to have a satirical cartoon drawing of Trump removed from a site that didn’t paint him in a positive light. This isn’t consistent with the position of being against censorship.

“We live in a strange time when the #POTUS can falsely accuse someone of murder with impunity (violating @Twitter’s terms of service), while at the same time bully a private business into removing content it doesn’t like,” Anderson added on Twitter.

The Comic Book Legal Defense Fund (CBLDF) and other free speech organisations subsequently got involved, sending a group letter to Redbubble that accused Trump’s campaign of having “misused Redbubble’s reporting mechanism to suppress protected political expression in the form of parody, critique, and satire”, and arguing that the work and those who publish it are protected by the first amendment.

Redbubble reinstated Anderson’s cartoon this week, saying that it strives “to respect IP rights and freedom of speech, but we sometimes make mistakes, as we did here … We’re sorry for any inconvenience this has caused.”

In a statement, Anderson praised Redbubble for recognising the error, but said there were some “troubling issues” raised by the affair, including that the cartoon was removed less than 24 hours after he posted it, before he had received a single order.

“I doubt anyone had even seen it yet on the site,” he said. “This reveals that the Trump campaign has a system in place, trawling for material they find objectionable. If it happened to me so quickly, it likely has happened to others. How much other content has been removed this way on Redbubble and other sites?”

src

 

[RidgeSprinter]

Don’t the terms of service that Trump agreed to when he joined Twitter say that he agreed to abide by their rules? Since he doesn’t like their rules, isn’t he doing the Presidential version of taking the bat and ball and going home because he isn’t very good at baseball?

Yes Maam. in a nutshell.

 

[RidgeSprinter]

Sec. 2. Protections Against Online Censorship. (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.

CAF will be subject to this as well. You say no? You have to register with Twitter and Facebook to write content just as you do with CAF.

Except CAF can be viewed without logging in. I’ve tried viewing Twitter(I think) and Facebook on a new computer without logging in and it can’t be done.