WASHINGTON, July 9, 2019 — A three-judge panel of the Second Circuit Court of Appeals has found that President Donald Trump’s use of Twitter’s “block” feature against his critics violates the First Amendment because he uses his private Twitter account for official government business.
The unanimous decision upholds a prior district court ruling which rejected the Justice Department’s argument that Trump was acting as a private individual when he blocked several critics from viewing tweets on the @realDonaldTrump Twitter account.
“[The] First Amendment does not permit a public official who utilizes a social media account for all manner of official purposes to exclude persons from an otherwise‐open online dialogue because they expressed views with which the official disagrees,” Circuit Judge Barrington Parker explained.
Barrington, who was named to the Second Circuit by President George W. Bush, took care to note that the court did not consider whether elected officials could block users from a “wholly private” social media account.
“The salient issues in this case arise from the decision of the President to use a relatively new type of social media platform to conduct official business and to interact with the public,” he wrote.
Writing for himself and his colleagues — George W. Bush appointee Peter Hall and Obama appointee Christopher F. Droney — Barrington explained that the court found that Trump “has consistently used the [@realDonaldTrump] Account as an important tool of governance and executive outreach,” based on his use of Twitter to announce personnel actions, promote administration initiatives, and numerous statements from administration officials which concede that his tweets are official statements from the President of the United States.
The three judges were “not persuaded” by the Justice Department’s arguments that the President’s Twitter account is a private vehicle for his own use and not a public forum, that blocking an individual does not prevent a user from accessing Trump’s tweets, or that the tweets are exempt from the First Amendment under the “government speech” doctrine.
“We conclude that the evidence of the official nature of the Account is overwhelming. We also conclude that once the President has chosen a platform and opened up its interactive space to millions of users and participants, he may not selectively exclude those whose views he disagrees with.” he wrote.
When reached by email, Justice Department spokesperson Kelly Laco reiterated the government’s argument that Trump’s decision to block users from his personal Twitter account does not violate the First Amendment.
“We are disappointed with the court’s decision and are exploring possible next steps,” she wrote.
Twitter Takeover by Elon Musk Forces Conflict Over Free Speech on Social Networks
Transparency laws in Calif. and N.Y. are the ‘liberal’ counterpart to the ‘conservative’ speech laws in Texas and Florida.
WASHINGTON, November 23, 2022 — As the Supreme Court prepares to hear two cases that may decide the future of content moderation, panelists on a Broadband Breakfast Live Online panel disagreed over the steps that platforms can and should take to ensure fairness and protect free speech.
Mike Masnick, founder and editor of Techdirt, argued that both sides of the aisle were attempting to control speech in one way or another, pointing to laws in California and New York as the liberal counterpoints to the laws in Texas and Florida that are headed to the Supreme Court.
“They’re not as blatant, but they are nudging companies to moderate in a certain way,” he said. “And I think those are equally unconstitutional.”
Censorship posed a greater threat to the ideal of free speech than would a law forcing platforms to carry certain content, said Bret Swanson, a nonresident senior fellow at the American Enterprise Institute.
“Free speech and pluralism, as an ethos for the country and really for the West, are in fact more important than the First Amendment,” he said.
At the same time, content moderation legislation is stalled by a sharp partisan divide, said Mark MacCarthy, a nonresident senior fellow in governance studies at the Brookings Institution’s Center for Technology Innovation.
“Liberals and progressives want action to remove lies and hate speech and misinformation from social media and the conservatives want equal time for conservative voices, so there’s a logjam gridlock that can’t move,” he said. “I think it might be broken if, as I predict, the Supreme Court says that the only way you can regulate social media companies is through transparency.”
Twitter’s past and current practices raise questions about bias and free speech
While talking about Elon Musk’s controversial changes to Twitter’s content moderation practices, panelists also discussed the impact of Musk’s rhetoric surrounding the topic more broadly.
“Declaring yourself as a free speech site without understanding what free speech actually means is something that doesn’t last very long,” Masnick said.
When a social media company like Twitter or Parler declares itself to be a “free speech site” is really just sending a signal to some of the worst people and trolls online to begin harassment, abuse and bigotry, he said.
That is not a sustainable business model, Masnick argued.
But Swanson took the opposite approach. He called Musk’s acquisition of Twitter “a real seminal moment in the history and the future of free speech,” and called it an antidote to “the most severe collapse of free speech maybe in American history.”
MacCarthy said he didn’t believe the oft-repeated assertion that Twitter was biased against conservatives before most Musk took over. “The only study I’ve seen of political pluralism on Twitter — and it was done by Twitter itself back when they had the staff to do that kind of thing — suggested that Twitter’s amplification and recommendation engines actually favored conservative tweets over liberal ones.”
Masnick agreed, pointing to other academic studies: “They seemed to bend over backwards to often allow conservatives to break the rules more than others,” he said.
Randolph May, president of The Free State Foundation, said that he was familiar with the studies but disagreed with their findings.
Citing the revelations from the laptop of Hunter Biden, a story that the New York Post broke in October 2020 about the Joe Biden’s son, May said: “To me, that that was a consequential censorship action. Then six months later before a congressional committee, [Twitter CEO] Jack Dorsey said, ‘Oops, we made we made a big mistake when we took down the New York Post stories.’”
Multiple possibilities for the future of content moderation
Despite his criticism of current practices, May said he did not believe platforms should eliminate content moderation practices altogether. He drew a distinction between topics subject to legitimate public debate and those posts that encourage terrorism or facilitate sex trafficking. Those kinds of posts should be subject to moderation practices, he said.
May made three suggestions for better content moderation practices: First, platforms should establish a presumption that they will not censor or downgrade material without clear evidence that their terms of service have been violated.
Second, platforms should work to enable tools that facilitate personalization of the user experience.
Finally, the current state of Section 230 immunity should be replaced with a “reasonableness standard,” he said.
Other panelists disagreed with the subjectivity of such a reasonableness standard. MacCarthy highlighted the Texas social media law, which bans discrimination based on viewpoint. “Viewpoint is undefined: What does that mean?” he asked.
“Does it mean you can’t get rid of Nazi speech, you can’t get rid of hate speech, you can’t get rid of racist speech? What does it mean? No one knows. And so here’s a requirement of government that no one can interpret. If I were the Supreme Court, I’d declare that void for vagueness in a moment.”
MacCarthy predicted that the Supreme Court would reject the content-based provisions in the Texas and Florida laws while upholding the transparency standard, opening the door, he argued, for bipartisan transparency legislation.
But to Masnick, even merely a transparency requirement would be an unsatisfactory result: “How would conservatives feel if the government said, ‘Fox News needs to be transparent about how they make their editorial decision making?’”
“I think everyone would recognize immediately that that is a huge First Amendment concern,” he said.
Wednesday, November 23, 2022, 12 Noon ET – Elon and Ye and Donald, Oh My!
With Elon Musk finally taking the reins at Twitter after a tumultuous acquisition process, what additional new changes will come to the world’s de facto public square? The world’s richest man has already reinstated certain banned accounts, including that of former president Donald Trump. Trump has made his own foray into the world of conservative social media, as has politically polarizing rapper Ye, formerly Kanye West, currently in the process of purchasing right-wing alternative platform Parler. Ye is no stranger to testing the limits of controversial speech. With Twitter in the hands of Musk, Parler in the process of selling and Trump’s Truth Social sort-of-kind-of forging ahead in spite of false starts, is a new era of conservative social media upon us?
- Mark MacCarthy, Nonresident Senior Fellow in Governance Studies, Center for Technology Innovation, Brookings Institution
- Mike Masnick, Founder and Editor, Techdirt
- Randolph May, President, The Free State Foundation
- Bret Swanson, Nonresident Senior Fellow, American Enterprise Institute
- Drew Clark (moderator), Editor and Publisher, Broadband Breakfast
- Free Speech and Disinformation Articles, Entropy Economics
- Thinking Clearly About Speaking Freely Series, The Free State Foundation
- Trump’s Twitter Account Reinstated as Truth Social Gets Merger Extension, Broadband Breakfast, November 22, 2022
- Experts Reflect on Supreme Court Decision to Block Texas Social Media Bill, Broadband Breakfast, June 2, 2022
- Narrow Majority of Supreme Court Blocks Texas Law Regulating Social Media Platforms, Broadband Breakfast, May 31, 2022
- Parler Policy Exec Hopes ‘Sustainable’ Free Speech Change on Twitter if Musk Buys Platform, Broadband Breakfast, May 16, 2022
- Experts Warn Against Total Repeal of Section 230, Broadband Breakfast, November 22, 2021
- Broadband Breakfast Hosts Section 230 Debate, Broadband Breakfast, June 1, 2021
- Explainer: With Florida Social Media Law, Section 230 Now Positioned In Legal Spotlight, Broadband Breakfast, May 25, 2021
Mark MacCarthy is a Nonresident Senior Fellow in Governance Studies at the Center for Technology Innovation at Brookings. He is also adjunct professor at Georgetown University in the Graduate School’s Communication, Culture, & Technology Program and in the Philosophy Department. He teaches courses in the governance of emerging technology, AI ethics, privacy, competition policy for tech, content moderation for social media, and the ethics of speech. He is also a Nonresident Senior Fellow in the Institute for Technology Law and Policy at Georgetown Law.
Mike Masnick is the founder and editor of the popular Techdirt blog as well as the founder of the Silicon Valley think tank, the Copia Institute. In both roles, he explores the intersection of technology, innovation, policy, law, civil liberties, and economics. His writings have been cited by Congress and the EU Parliament. According to a Harvard Berkman Center study, his coverage of the SOPA copyright bill made Techdirt the most linked-to media source throughout the course of that debate.
Randolph May is founder and president of The Free State Foundation, an independent, non-profit free market-oriented think tank founded in 2006. He has practiced communications, administrative, and regulatory law as a partner at major national law firms. From 1978 to 1981, May served as Assistant General Counsel and Associate General Counsel at the Federal Communication Commission. He is a past Chair of the American Bar Association’s Section of Administrative Law and Regulatory Practice.
Bret Swanson is president of the technology research firm Entropy Economics LLC, a nonresident senior fellow at the American Enterprise Institute, a visiting fellow at the Krach Institute for Tech Diplomacy at Purdue University and chairman of the Indiana Public Retirement System (INPRS). He writes the Infonomena newsletter at infonomena.substack.com.
Drew Clark (moderator) is CEO of Breakfast Media LLC, the Editor and Publisher of BroadbandBreakfast.com and a nationally-respected telecommunications attorney. Under the American Recovery and Reinvestment Act of 2009, he served as head of the State Broadband Initiative in Illinois. Now, in light of the 2021 Infrastructure Investment and Jobs Act, attorney Clark helps fiber-based and wireless clients secure funding, identify markets, broker infrastructure and operate in the public right of way.
As with all Broadband Breakfast Live Online events, the FREE webcasts will take place at 12 Noon ET on Wednesday.
Trump’s Twitter Account Reinstated as Truth Social Gets Merger Extension
The merger, delayed by a federal probe, has left Truth Social without expected funding.
WASHINGTON, November 22, 2022 — Digital World Acquisition Corp. shareholders voted Tuesday to extend the Dec. 8 deadline for its merger with Truth Social, giving the platform a chance at survival as it faces financial and legal challenges.
The right-wing alternative social media platform championed by former President Donald Trump is currently under federal investigation for potential securities violations, which has delayed the merger and forced Truth Social to operate without $1.3 billion in expected funding.
The DWAC vote was delayed six times in order to raise the necessary support, with the company noting in a securities filing that it would be “forced to liquidate” if the vote was unsuccessful. Private investors have already withdrawn millions in funding.
Trump indicated on Truth Social in September that he was prepared to find alternative funding. “SEC trying to hurt company doing financing (SPAC),” he wrote. “Who knows? In any event, I don’t need financing, ‘I’m really rich!’ Private company anyone???”
Trump’s potential return to Twitter poses another risk for Truth Social
Meanwhile, under the new leadership of Elon Musk, Twitter reinstated Trump’s account, which was banned after then-Twitter executives alleged he stoked the January 6 riot at the Capitol. The reinstatement was made official after Musk asked in a public Twitter poll — which received around 15 million votes — whether he should allow the controversial former president back on the platform.
Trump’s potential return to Twitter could undermine Truth Social’s primary attraction, which could be another blow to the fledgling platform.
On Truth Social, the former president encouraged his followers to vote in the poll while indicating that he would not return to Twitter. But with 87 million followers on Twitter and fewer than 5 million on Truth Social, Trump may be tempted to make use of his newly reinstated account despite statements to the contrary, particularly in light of the official announcement of his 2024 presidential campaign.
The campaign could also allow him to bypass his agreement to first post all social media messages to Truth Social and wait six hours before sharing to other platforms. The agreement makes a specific exception for political messaging and fundraising, according to an SEC filing.
Musk’s decision to bring back Trump was one of many controversial decisions he’s made in his short tenure at the social media company — including a number of high-profile firings and the reinstatement of multiple formerly-banned accounts — which has led several major advertisers to pause spending.
Musk tweeted in October that he would convene a “content moderation council with widely diverse viewpoints” before making any “major content decisions or account reinstatements.” No such council has been publicly announced, and the Tweet appeared to have been deleted as of Tuesday.
Ye returns to Twitter while details of Parler acquisition remain uncertain
Trump’s reinstatement seems to have motivated at least one controversial figure to return to Twitter: Ye, formerly Kanye West, whose account was restricted in October after tweeting that he would go “death con 3 on JEWISH PEOPLE.” The restrictions were lifted prior to Musk’s acquisition of Twitter, but the rapper remained silent on the platform until Nov. 20.
“Testing Testing Seeing if my Twitter is unblocked,” he posted.
Right-wing social media platform Parler announced in October that Ye had agreed to purchase the company. Completion of the acquisition is expected by the end of December, but further details, including financial terms, have yet to be announced.
Twitter draws legislative attention, with changes to the social media landscape on the horizon
One of Musk’s first major changes to Twitter attempted to replace the existing verification system with a process through which anyone could pay $8 per month for a verified account. The initial rollout of paid verification sparked a swarm of accounts impersonating brands and public figures such as Sen. Ed Markey, D-Mass., who responded with a letter demanding answers about how the new verification process would prevent future impersonation.
Markey also co-signed a Nov. 17 letter written by Sen. Richard Blumenthal, D-Conn., asking the Federal Trade Commission to investigate Twitter for consumer protection violations in light of “serious, willful disregard for the safety and security of its users.”
Musk responded to the letter by posting a meme that mocked the senators’ priorities, but he later appeared to be rethinking the new verification process.
“Holding off relaunch of Blue Verified until there is high confidence of stopping impersonation,” Musk tweeted on Monday.
Other changes to the platform may be out of Musk’s hands, as state and federal legislators consider an increasing number of proposals for the regulation of digital platforms.
The Computer and Communications Industry Association released on Monday a summary of the trends in state legislation regarding content moderation. More than 250 such bills have been introduced during the past two years.
“As a result of the midterm elections, a larger number of states will have one party controlling both chambers of the legislature in addition to the governor’s seat,” CCIA State Policy Director Khara Boender said in a press release. “This, coupled with an increased interest in content moderation issues — on both sides of the aisle — leads us to believe this will be an increasingly hot topic.”
Twitter Loses Senior Officers, Gains White House and Federal Trade Commission Scrutiny
The current kerfufle isn’t the first time Twitter has had a run-in with the Federal Trade Commission.
WASHINGTON, November 10, 2022 – Elon Musk’s Twitter is facing headwinds as the Federal Trade Commission and the broader administration of President Joe Biden signal scrutiny of the company, as the company’s former senior officers resign amid chaotic policy changes.
“We are tracking recent developments at Twitter with deep concern,” an FTC spokesperson said Thursday. “No CEO or company is above the law, and companies must follow our consent decrees. Our revised consent order gives us new tools to ensure compliance, and we are prepared to use them.”
And in a post-Election Day press conference on Wednesday, Biden generally signaled a tough stance against Musk.
Asked if Musk was “a threat to U.S. national security” and whether the federal government should “investigate his joint acquisition of Twitter with foreign governments, which include the Saudis,” Biden replied, choosing his words carefully:
“I think that Elon Musk’s cooperation and/or technical relationships with other countries is worthy of being looked at,” Biden said. “Whether or not he is doing anything inappropriate, I’m not suggesting that. I’m suggesting that it [is] worth being looked at. And — and — but that’s all I’ll say.”
Following up on her question, Jenny Leonard of Bloomberg asked “how,” and Biden replied, “There’s a lot of ways.”
Resignation by top Twitter officials
Thursday morning, Twitter’s now-former chief information security officer, Lea Kissner, stepped down in a Tweet. Basedon an internal company message, several outlets reported the same day that the platform’s chief compliance officer and chief privacy officer also quit.
According to The Verge, a Twitter attorney wrote the following on a company forum: “Elon has shown that his only priority with Twitter users is how to monetize them. I do not believe he cares about the human rights activists. the dissidents, our users in un-monetizable regions, and all the other users who have made Twitter the global town square you have all spent so long building, and we all love.”
Twitter’s woes don’t stop there. After Musk instituted a subscription-based verification badge, many fake accounts soon gained verification – including imposters claiming to be former President Donald Trump, former New York Mayor Rudy Giuliani, and basketball star LeBron James.
Nor is this Twitter’s only recent run-in with the FTC. In May, the watchdog ordered the platform to pay a $150 million penalty for alleged deceptive use of user data for advertising purposes.
“I expect…a big increase in the number of whistleblower complaints and other things that people might be filing (against Twitter),” said Katie Harbath, a fellow at the Bipartisan Policy Center, on a web panel Thursday afternoon.
“[The FTC doesn’t] proactively put out statements regularly, so this is a pretty big deal today,” said moderator Rebecca Kern, a tech-policy reporter for Politico.
In September, Twitter’s former head of security, Peiter Zatko, testified before the U.S. Senate, alleging that the platform doesn’t adequately protect customer data and is vulnerable to meddling by foreign actors.
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