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Freedom of Speech: Trump and Twitter

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RadioEd is a biweekly podcast created by the DU Newsroom that taps into the University of Denver’s deep pool of bright brains to explore new takes on today’s top stories. See below for a full episode transcript. The transcript has been edited for clarity. 

Derigan Silver

Wondering what’s up with Trump’s executive order targeting Twitter and the fact-check label it applied to some of his posts? We talk with media, film and journalism professor Derigan Silver about how much weight this executive order holds, the impact social media has on politics and journalism, and the importance of the little-understood Section 230 of the 1996 Communications Decency Act.

Show Notes

Derigan Silver is an associate professor in the University of Denver's Department of Media, Film and Journalism Studies in the College of Arts, Humanities and Social Sciences.

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Alyssa Hurst: You're listening to RadioEd, a University of Denver podcast.

Lorne Fultonberg: We're your hosts, Lorne Fultonberg...

Alyssa Hurst: ...Alyssa Hurst,

Nicole Militello: ...and I'm Nicole Militello. We're still reporting in our makeshift studios at home, thanks to the coronavirus. 

Nicole Militello: Today, we're gonna talk about President Trump's complicated relationship with social media. For the past few years, we've seen the president embrace social media in a way we've never seen before. His Twitter feed, which has more than 82 million followers right now, is a place where he's done everything from share his thoughts on major headlines of the day to fire the Secretary of State, and even threaten nuclear war with North Korea. For years, he's had an unfiltered platform to speak to the world regardless of whether his comments are true or false. All of that changed recently when Twitter put a fact check warning on two of his tweets. Now, Trump is pushing back with an executive order aiming to limit legal protections for social media sites. So we're gonna talk about all of this with Media, Film, and Journalism professor Derigan Silver. We talked with him about what this executive order says and if it holds any weight. But to understand what this fight is all about, you have to first understand a small but powerful part of U.S. law, something called Section 230.

Derigan Silver: The Section 230 Communications Decency Act was passed way back in 1996. Basically, what was happening is the internet was really starting to explode, and there was a lot of new content on it. So there were a couple of legal cases that came down where these internet service providers were sued for content that was posted by a third party. And basically, in one situation, the internet service provider did not edit the content and the court ruled that they were basically an intermediary, that they were less like a newspaper and they were more like a telephone company or a bookstore—entities that are not expected to edit or be responsible for all the content they provide. You can imagine if your telephone company, if AT&T was responsible for all the things that happened over AT&T's telephone lines, they would be sued out of business pretty quickly, right? And the telephone as we know it wouldn't exist. 

Then there was another case that came along, and there was an internet service provider called Prodigy, and Prodigy really prided itself on being the family-friendly internet service provider. So, not only would they provide you with content, but they also edited that content to make sure it was family friendly. Well, when they were sued for content posted by a third party, they tried to make the same argument that they were an intermediary, and the court said, "Well, no, you're not. Right here, it says you edit. Because you edit, you're more like a newspaper than you are like a telephone company, and just like a newspaper that is responsible for the content of third parties, you're gonna be responsible for the content of third parties." So basically, the courts sent this message to internet service providers that they shouldn't edit content. They should just be very hands off, and they should just be intermediaries and not worry about editing the content. 

Well, Congress then decided that it wanted to keep pornography out of the hands of minors, and it needed help to keep pornography out of the hands of minors. And so it went to the internet service providers and said, "Hey, can you edit your content and can you help us make sure minors don't get a hold of pornography?" And the companies said, "No, we can't do that because as soon as we do that, under these precedents, we are now liable for content, and so we're not gonna edit anything." And so Congress, in its infinite wisdom, said, "Hey, what if we write this law called the Communications Decency Act that helps you help us keep pornography out of the hands of minors? And while we're at it, we'll add this one section, Section 230, that basically says all internet service providers are completely immune from liability for any content posted by a third party." So, if I have a website, no matter what anybody else posts on that website, I cannot be sued for that, and it was supposed to help websites monitor pornography and make sure minors didn't get pornography. 

Well, in 1997, the Supreme Court struck down every single aspect of the Communications Decency Act as being a violation of the 1st Amendment, except for Section 230. So the rest of the law is completely gone. The rest of the law is unconstitutional, it doesn't exist, it can't be applied to anybody, but this one little bit that provides immunity to liability to internet service providers is still around, and it really has been interpreted over the last 25 years as being almost air-tight protection for internet service providers. Whenever they're sued for content that is posted by a third party, they claim Section 230 immunity, and they are immune from civil lawsuits.

Nicole Militello: So when it comes to the fact-checking flags that they're putting on these tweets, is there discrepancy whether that's considered editing versus just flagging?

Derigan Silver: No, any interpretation of the law, anyone who has read any of the case law, anyone who has studied Section 230 says this is absolutely not editorial content. This does not suddenly shift the liability from the third party to the internet service provider. It's beyond any sort of stretch of the imagination that this is going to change the current law. So editing a little bit of content here, curating content, all these things that Facebook and Twitter and all these different websites do—none of them have ever been found to remove immunity under Section 230. So, simply flagging content as being either of dubious facts or being dangerous—both of which Twitter has done now, they flagged the president both for propagating unfactual information and for inciting violence—neither of these things, under any stretch of the imagination, would have them lose Section 230 immunity. It's just so far beyond what the law actually is.

Nicole Militello: Okay, so in this executive order, Trump is asking the Federal Communications Commission to basically reconsider Section 230 to include if they're flagging it or fact checking it, saying that that means that they're editing, and so he wants to change that completely?

Derigan Silver: Right, well, here's where it gets even better. The Federal Communications Commission has absolutely nothing to do with Section 230. And they've been asked multiple times over the years to get involved with Section 230, and repeatedly they have said, "No, thank you." Section 230 was written by Congress, so can only be repealed by Congress. It cannot be repealed by the president. As much as this president likes to think he's very powerful, we all have to remember that under the Constitution, the legislative branch has the power to make laws, and Congress has shown no interest in removing Section 230. And the theory behind the executive order—and again, it's so fictional, it's very hard to even imagine how it would work—somehow he's saying, "Okay, FCC, you're gonna have the power to decide when Section 230 applies and when Section 230 doesn't apply." But here's the thing, Nicole: The FCC has nothing to do with Section 230, right? These are courts, and this is a civil lawsuit. And so the idea here is that if you post something about me on Twitter, right, I can sue you. But I can't sue Twitter. If I sue you or I sue Twitter, that's gonna be a civil lawsuit, right? I'm suing you for money, or I'm suing Twitter for money. The FCC is not involved at all. So this is a really strange legal theory that has no basis in how the law actually works.

Nicole Militello: So how do you think this will all play out, then?

Derigan Silver: I think the 15-minute attention span of America has already moved on. I think this was designed to distract and to fire up his base. So for years and years and years, historically, right or wrong, conservative individuals have felt like they don't have a representation in the mainstream media, primarily in television, because if you look at radio right now, radio is dominated by conservative voices and conservative ideologies. And then there's this secondary theory that now, because California's liberal and because all these tech companies are based in Silicon Valley, that this anti-conservative bias is now to be found in social media sites and technology companies, and technology companies are somehow super liberal, and they are pushing this liberal agenda and they're holding down conservative voices. So this is really a signal to people who believe this to say, "Hey, I know you think this is true. I think it's true, too. Isn't this awful?" And it was really designed as a way, in my opinion, to distract people from the coronavirus, to get people talking about something else, to shift the news cycle to somebody else. Since then, we've had quite a lot of other things that have shifted the news cycle, right? We are now dealing with racial injustice. We're dealing with police violence against the Black community. We're dealing with bringing down confederate statues. So really, the attention span of America [is] gone. So I don't really think we're gonna hear anything about this. I don't think the FCC is gonna do anything about this. There is a nonprofit organization that is largely supported by tech companies, Facebook and Google, that has brought a lawsuit against this, basically saying that one, the legal theory behind this is so ridiculous. Let's just get rid of it. Let's just not worry about it. But two, really saying that this is designed to chill speech. This isn't designed to actually do anything other than to make people afraid they're gonna get sued. And so let's just strike this down now. Let's just call this the nonsense that it is. That is in the federal court system now. But to be honest with you, I just don't see this going anywhere.

Nicole Militello: It does draw attention to the fine line that social media companies have to walk between getting pressured to hold people accountable, to fact check, but then also wanting, like you said, to not be seen as biased and be hands off here. So how do you think that they find the balance? Do you think Twitter should've done this a long time ago?

Derigan Silver: That's a great question. So I teach a class here at the University of Denver called New Media Law and Regulation, and what it really is is it's internet law and regulation. And we spent probably four out of the 10 weeks this past quarter discussing that exact same question that you just asked. All this, everything that I've said about Donald Trump's executive order is very much true, but it doesn't distract from the fact that Section 230 is a very problematic law. It has been applied so widely and so broadly that sex trafficking, underage prostitution, [and] all these really terrible things have been protected under Section 230. So I don't want people to think that Section 230 is perfect. It is very problematic. Very smart individuals have been debating this for years now, and that question you asked me is something that my class and I debated for weeks. We now have these very powerful, non-governmental platforms that largely control free speech. 

So there are all kinds of legal and ethical issues. We're asking largely white privileged software engineers who live in Silicon Valley to make decisions about free speech in Africa or to decide when something crosses the line, and it's now bullying or hate speech. And these are incredibly difficult questions. You multiply that by the amount of content that's being uploaded. So if you look at YouTube, hundreds and thousands of hours of videos are uploaded to YouTube every 24 hours. Just practically, how do you monitor that? You can't physically have somebody review all those. So you end up writing software algorithms, and you end up writing bots that crawl your website and look for these things. And so this is a really complicated area that needs to be thought about very carefully, not with ham-handed executive orders that just say, "Oh, conservative voices are being silenced," but to really look thoughtfully and deeply at how the internet is changing discourse in our society.

Nicole Militello: I'm curious about your opinions on the role that Twitter plays with journalism and then also politics. Donald Trump is the first president that we've seen use social media in this way. Journalists had to figure out “How do we report on this? How do we fact check this?” But he has a platform of 82 million followers that, if people are only getting their news from Twitter, they're not seeing the fact checks on these things. So I'm just curious how you think that's changed how Twitter has operated and maybe pushed them to start doing these fact checks and then how the fact checks could possibly impact the 2020 election.

Derigan Silver: Yeah, so it's really fascinating, and Donald Trump is actually even very honest about this. When he is asked why do you like Twitter, he'll admit, "'‘Cause I can go around the news media, right? I don't have to deal with them." Now if you're a Donald Trump supporter, that's a good thing because the news media never gives him a fair shake. If you are a Donald Trump detractor, that's a bad thing because now, he's going around the fact checkers, right? Everything he says is just taken at face value. 

Let's take the latest thing that they have said that is not true, that there were liberal protestors at his rally in Tulsa, Oklahoma that were preventing thousands upon thousands of conservatives to come to this rally, and that's really the reason that it wasn't very well attended, right? That's just factually untrue. But if you put that up on a platform that has no fact checking, like Facebook, people can just take that as the truth, right? Because again, these are individuals who are, for a decade, have felt like their voice is being silenced in the mainstream media. That of course NBC wouldn't tell the truth because NBC is liberal, and they're against conservatives. And so by going to Twitter, I'm getting the truth, and I'm going around NBC. But it really is very problematic because we have always had these gatekeepers, these fact checkers, people who decide not only what is true and what is false, but what is news and what is not news. 

So is Twitter really stepping in, and do they have a responsibility to fact check? In my opinion, they do. Twitter and Facebook really wanna have it both ways, and Google as well, because YouTube is a media company. For Google to say they are not a media company is absolutely ridiculous. My kids would much rather watch YouTube than they would any broadcast television show that is on right now. So they wanna have it both ways. They wanna make all this money, they wanna bring in all this advertising, but they don't wanna be held to the responsibilities, the ethical responsibilities of media companies. So I think Twitter is finally stepping up. This didn't get any news coverage at all, [but] Snapchat went one step farther. They didn't label his content as false. They just took away his channel. They're like, "We don't want you on Snapchat anymore." And because Snapchat really doesn't appeal to people in my demographic, it didn't make the news, right? Because Twitter, that's what I'm on, and I watch the news. Snapchat is what my kids are on. That doesn't make the news. But this is really taking responsibility of saying, "We're not gonna stand behind our platform being this source of either misinformation or calls to violence." And I think it's well past time that this happened. I would love to see Facebook step up and do the same thing. I'm highly, highly doubtful Facebook will. Facebook has seen internal strife over this. A lot of computer coders are leaving Facebook because of the decision to not flag this content as either disinformation or as harmful, and I think you're gonna see Facebook really have to deal with the ramifications of its decisions. So yeah, social media has changed the journalistic landscape. At first, we thought it was really because of advertising, but now we're seeing a completely different approach where the media is trying to figure out its role in this new landscape.

Nicole Militello: For more information on President Trump's executive order, visit our show notes at Be sure to subscribe and review our podcast. Alyssa Hurst is our executive producer and mixed our sound for this episode. James Swearingen arranged our theme, and Tamara Chapman is our managing editor. I'm Nicole Militello, and this is RadioEd.