Trump and Twitter: the puzzle of controlling what public figures say
By Florence G’sell, Associate of Private Law and Professor at the University of Lorraine
For the first time, on May 26, Twitter decided to flag several Donald Trump tweets with a warning sign and a link to verified information. Three days later, on May 29, the social network restricted, in an unprecedented way, access to a tweet from the President, by masking it behind a warning indicating that the tweet advocates violence (“glorification of violence “), At odds with Twitter's rules. The possibility of commenting on or sharing it has been excluded.
Twitter's move comes under very specific circumstances, which have sparked intense debate in the United States, such as so often about the President's activity on Twitter. The first tweets reported relate to the controversial postal ballot issue that California, like other states, is putting in place for the presidential election next November. Although he himself voted by email in Florida last March, as The Guardian points out, the American President believes that remote voting could only lead to massive fraud and clearly fears that such a system will benefit the Democrats. His tweets, which evoke a “rigged election”, were rigged by Twitter with a link to a page created by the platform, which brings together contributions from different media and fact-checkers showing in Which Trump's claims are poorly supported, if not mistaken.
The decision of Twitter to insert this label underlining the inaccuracy of the remarks of the President constitutes a real turning point. Until now, the social network has always refused to intervene in the face of Trump's excesses. This decisive step can perhaps be explained by a new language gap that has aroused strong disapproval across the Atlantic. Indeed, in recent days, the American President has allowed himself to insinuate, in a series of conspiratorial tweets, that Joe Scarborough, former elected Republican of Florida today presenter on MSNCB, would have played a role in the death of his former collaborator, Lori Klausutis, who died of an undiagnosed heart disease. Revolted by Trump's accusations, the deceased's husband wrote a letter to the CEO of Twitter denouncing these “horrible lies” and requesting the removal of the tweets concerned (Timothy Klausutis's Full Letter to Jack Dorsey and Twitter's Response, New York Times, May 26, 2020), a request relayed by numerous columnists and personalities (Kara Swisher, Twitter Must Cleanse the Trump Stain, The New York Times, May 26, 2020).
To this request for deletion, Twitter however opposed a firm refusal, affirming that these tweets did not contravene its policy, following a line adopted long ago.
No censorship, but reports
Twitter has traditionally refused to censor tweets from politicians, citing that the posts are of "public interest." Public figures are therefore generally not subject to the terms imposed on other users. Even in the presence of language discrepancies, the platform does not resort to the means usually employed in the event of violation of the rules of use of the network, such as the order to withdraw a tweet, the locking of the user's account or its suspension. . However, the social network has been led over the past year to change its stance in response to the multiple protests that the online activity of some leaders, starting with Trump, is sure to generate.
In June 2019, Twitter announced that it had adopted new rules for politicians. To benefit from this derogatory regime, those concerned must have the following characteristics: have been or can be elected or appointed to public office, be followed by more than 100,000 users and have a verified account. Even if the tweets of such officials violate the platform's rules (incitement to violence, harassment, etc.), they are not removed as long as they have a "clear public interest value". They can, however, be masked by a warning message to provide context.
This announcement was hardly followed up, however. In early July, Donald Trump made racist remarks about four elected Democrats without the slightest reaction from the social network, which contented itself with asserting that the tweets did not violate Twitter policy, even though the rules in force on the network prohibit in principle "targeting individuals with repeated insults or content aimed at dehumanizing, degrading or reinforcing negative or harmful stereotypes relating to certain categories of people".
In the fall of 2019, Twitter stepped up its system by announcing an update to its leadership policy. The social network recalled the principle adopted in June: no censorship of tweets violating Twitter rules when they are of public interest, but the possibility of affixing them a warning. At the same time, the platform has warned that it will intervene - regardless of the interest of the tweet - in the presence of content containing serious violations such as the promotion of terrorism, clear and direct threats of violent actions towards individuals or dissemination of information of a private nature. In this case, tweets in the public interest of politicians will be treated the same as others and may, if necessary, be hidden or deleted, with penalties up to and including suspension of the account. At the end of November, Twitter banned sponsored tweets for electoral or political purposes.
These new arrangements, however, did not allow Democratic Senator Kamala Harris to get Twitter intervention following a series of tweets from President Trump targeting the whistleblower behind the Ukraine affair. . Noting that the tweets included intimidation and threats against witnesses involved in the case, Harris unsuccessfully called for the suspension of Donald Trump's account.
Increased control thanks to the health crisis
The health crisis has led Twitter to further review its doctrine. As of March 18, the platform introduced new principles, and announced that the site would remove content constituting a clear call to adopt behavior that could directly create a risk to the health or well-being of people. The new categories of false information targeted by Twitter cover the challenge of containment decisions taken by local authorities, the promotion of ineffective treatments against covid19, the challenge of proven scientific facts concerning the transmission of the virus, the incitement to adopt behaviors that can cause panics or disorders ... As regards the government, specifies the platform, their tweets violating these rules will, in principle, not be deleted but reported when they are of public interest, in accordance with previously adopted principles.
Regularly updated, this new policy, which relies on information transmitted by official health authorities, has made it possible to fight against false information, particularly of a conspiratorial nature. At the end of March, Twitter was quick to withdraw two tweets posted by Brazilian President Jair Bolsonaro, which included videos promoting the infamous hydroxychloroquine and calling for an end to physical distancing strategies. Likewise, a tweet from Venezuelan President Nicolas Maduro referring to a decoction capable of eliminating coronavirus pathogens has been withdrawn.
However, Trump's tweets touting the benefits of hydroxychloroquine did not spark a reaction from Twitter. Admittedly, the platform did not hesitate to censor, at the end of March, lawyer Rudy Giuliani, who had quoted a tweet suggesting that hydroxychloroquine has a 100% effectiveness rate against the coronavirus. But the sharing by the campaign manager of the US President of an article claiming that chloroquine has a 90% chance of helping coronavirus patients did not generate intervention, Twitter did not see a call. clear to take harmful action to the public. In mid-April, Twitter again refused to intervene when Trump appeared to urge residents of Michigan, Minnesota and Virginia to resist the lockdown in those states by simply calling for them to be "released", which did not appear to the social network as being likely to endanger the population.
On May 11, however, the platform decided to step up its fight against content that contradicts the advice of public health experts by tackling tweets that do not pose an obvious and immediate risk, but may mislead the public. . She warned that new reports would be added to this title and, again, clarified that world leaders are affected by these new rules. In this context, tweets containing inaccuracies may be removed if the disinformation is egregious and likely to cause damage in the real world. Tweets with questionable claims and high risk of harm may be flagged grayed out and posted with a warning. Finally, tweets with controversial content but with moderate potential risk are not greyed out but may be linked to directing the user to other information on a page maintained by Twitter.
It is therefore in the latter category that have been classified Trump's tweets that prompted the intervention of the social network on May 26, although not directly related to the health crisis. In this regard, representatives of Twitter pointed out that these tweets are in contradiction with the principle of “civic integrity” (“civic integrity policy”) prohibiting users from engaging in manipulation or interfering with electoral processes or other civic processes, for example by posting misleading information that may dissuade people from participating in an election. They clarified that while Trump's tweets do not directly dissuade voters from voting, they nevertheless contain misleading information about postal voting that could mislead key stakeholders. In short, by using the expression "rigged election" Trump would have violated the principles upheld by Twitter.
Three days later, on May 29, Twitter again intervened to cover up a tweet from the President suggesting live ammunition could be fired at protesters in Minneapolis. Stressing that the tweet is of public interest, the social network did not delete it but masked it behind a warning message, specifying that it violates Twitter rules by “glorifying violence” which 'it comprises. While you can still share the tweet with a comment, you can no longer "retweet", reply to or click the "like" button.
Social networks, public spaces?
In a context where the removal of Donald Trump's most outrageous tweets is being demanded loud and clear by a growing number of politicians and observers, Twitter's decision to report these tweets counterbalances a constant refusal to intervene until this day. While this decision is a turning point, it is nonetheless a late development. Twitter's caution on this point can be explained in light of the extensive protection afforded in US law to the freedom of expression guaranteed by the First Amendment to the US Constitution. On the basis of this text, the American courts tend to see the accounts kept by public figures on social networks as public spaces (“public fora”), even if this qualification is the subject of bitter discussions concerning platforms administered by private actors (see, on this point, the opinion of Judge Brett Kavanaugh in the Manhattan Community Access Corp. v. Halleck decision, which decides that private actors hosting discussion spaces open to the public are free to moderate them at their discretion).
Regarding the specific case of social networks, the Supreme Court ruled, in 2017, that access to social networks, in this case Facebook, constitutes a constitutional right for American citizens (Packingham v. North Carolina), which must be able to access places, even virtual, where they can get information and discuss. This decision underlined that social networks now provide the most powerful mechanisms available to citizens to make their voices heard (“the most powerful mechanisms available to a private citizen to make is or her voice heard”). Judge Anthony Kennedy wrote in particular that "a fundamental principle of the First Amendment is that everyone should have access to places where they can speak and listen, and then, after reflection, speak and listen again" ("a fundamental First Amendment Principle is that all persons have access to places where they can speak an listen and then, after reflection, speak and listen once more »).
Furthermore, the protection afforded by the First Amendment does not allow public officials to prevent citizens, by "blocking" them, from accessing the content they post on social media. Donald Trump himself has borne the brunt of this jurisprudence about Internet users he had "blocked" on Twitter. The federal courts, in this case, ruled in 2019 that Donald Trump, insofar as he speaks on Twitter as President of the United States, cannot exclude American users without violating their right of access to a public space protected by the First Amendment (Knight First Amendment Inst. at Columbia Univ. v. Trump). We note in this regard the eloquent statement appearing in the judgment of the Court of Appeal of the Second Circuit which decided this case: “if the First Amendment means anything, it is that the best answer to remarks that the '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 ”). As a result of this decision, Trump “unblocked” the plaintiffs ... without, however, giving up on “blocking” others. The case is reminiscent of the complaint of a French journalist "blocked" by the President of the National Assembly, Richard Ferrand, on a different register, however, since filed in criminal proceedings, and subsequently closed by the prosecution for misconduct appropriate offense.
Either way, it is understandable, in such a context, for Trump to vigorously invoke this free speech on which the ban on "blocking" users was based to refuse any reporting or censorship of his tweets. The reference to the notion of public space also explains Twitter's strategy, which constantly invokes the "public interest" of tweets from politicians, especially when they are prominent. The incentive to intervene is, for the social network, all the less strong as federal legislation exempts platforms from all responsibility for comments made online by their users (Section 230, Communications Decency Act, Title 47 of the United States Coded).
The "clarification" of Section 230 of the Communications Decency Act
It is, paradoxically or not, this Section 230 of the Communications Decency Act - or, at least, its interpretation - that Trump is now seeking to modify precisely, in retaliation against Twitter. Prior to the passage of the Communications Decency Act in 1996, the status of web hosts was not entirely clear. They were considered to have immunity for content posted by third parties on their platforms, but were fully responsible for such content as long as it intervened in one way or another. The Communications Decency Act of 1996 then guaranteed them very broad immunity, including when they practice moderation. Under the terms of the text, the platforms can in no way be considered as publishers of the content published there by third parties: their liability for this content is excluded. In addition, platforms that engage in moderation benefit from “good samaritan” immunity: they cannot be held liable for any action amounting to removing or restricting access to objectionable content (“obscene, lewd, lascivious , filthy, excessively violent, harassing, or otherwise objectionable ”material), provided the decision is made in good faith.
The “Executive Order”, which could be translated as “presidential decree”, signed by Trump on May 28, 2020 promotes a restrictive interpretation of platform immunity, which, according to the text, does not should not extend to those engaged in “editorial activities”. The text emphasizes in particular that immunity cannot benefit platforms which do not act in good faith and intervene for the purpose of muzzling the points of view with which they disagree (“online platforms that -far from acting“ in good faith ”To remove objectionable content - instead engage in deceptive or pretextual actions (often contrary to their stated terms of service) to stifle viewpoints with which they disagree“). Platforms choosing to moderate content without being "in good faith" should therefore lose their immunity and be liable as any publisher would be. To this end, the decree directs the Federal Communications Commission to “clarify” the text of section 230 by preparing a regulation restricting the scope of the immunity and specifying the conditions under which the platform is deemed to act “of sincerity". The decree also orders the Federal Trade Commission to act against platforms that adopt “deceptive” or unfair practices in the context of moderation of content or act in contradiction with their terms of use. On this last point, Trump gives satisfaction to the conservatives who complain about the platforms' biases towards them and have long called for the consecration, in section 230, of a principle of neutrality in the moderation of content. The “Executive Order” also specifies that the Federal Trade Commission and the Department of Justice will be notified of all the complaints received by the tool created in May 2019 by the White House (Tech Bias Reporting tool) in order to collect complaints from Internet users who consider themselves unfairly censored on the networks.
Whatever one thinks about the substance, and even if a modification of section 230 - on which the Department of Justice has been discussing for several months - seems essential to many specialists, the method employed by the American President is hardly convincing. Donald Trump intends, in fact, to modify, by a simple "Executive Order", the content of a federal law passed in Congress in 1996 and applied since then by the American courts, which have developed a solid case law. The text therefore poses several constitutional difficulties: not only the amendment of this law is in principle up to Congress, but its compatibility with the First Amendment can be debated, especially since it protects (also) the rights of platforms, as private companies, to set their own conditions of use and to enforce them. For this reason, it is doubtful whether the "Executive Order", which will inevitably be challenged, will actually produce its effects. Even assuming that this is the case, this text could lead platforms now legally responsible to practice particularly strict moderation, purely and simply removing content that may engage their responsibility, without bothering to check them. Such harsh moderation would be the opposite of what President Trump is looking for, clearly in favor of "a hard-hitting conception of freedom of expression on social media." In the end, even as Trump wishes to deny any right of moderation to platforms by relying on the notion of public space, he at the same time chooses to qualify them as publishers, further justifying their intervention in content.
While this uniquely American battle has only just begun, it seems increasingly difficult for social networks to adopt a posture of pure abstention by refusing any intervention in the face of inaccurate, defamatory or simply dangerous comments. However, their room for maneuver is narrow. Even in France, where the legislation already includes more restrictions on freedom of expression and where platforms are encouraged to practice moderation, a possible report, via Twitter, of the words of a politician or of a public figure (like, for example, the now famous professor Raoult) could generate very virulent reactions. The new strategy initiated by Twitter presupposes, moreover, adopting absolute transparency and an unassailable method for determining the content to be reported, which has not yet been acquired (see, in this regard, the section “How will we identify these Tweets? ”). The difficulty is so great that it undoubtedly explains why Mark Zuckerberg - who has long argued that it is not for platforms to be the “arbiter of truth” in the framework of public debate - does not wish to engage in fact-checking of the comments of the rulers. This disagreement illustrates the ambiguity of what social networks have become today: public places in which democratic debate takes place, owned and administered by private companies.
