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@POTUS vs. Twitter & the #TXimpact

"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." - Excerpt from the Executive Order on Preventing Online Censorship

In early May, Twitter announced that it would start to engage more directly on tweets by its users about COVID-19. It did so by providing a blue exclamation point and statement at the bottom of offending tweets stating, "Get the facts about COVID-19". They also stated that they would be willing and ultimately made good on hiding tweets that were deemed especially egregious by Twitter.


Last week, Twitter expanded its fact-checking machine into the political realm by unilaterally placing "Get the facts about mail-in ballots" on a series of the President's tweets about the subject.


The company soon found themselves in unprecedented waters, with the President signing an Executive Order which interprets Section 230 of the Communications Decency Act of 1996 to say that the act does not provide any statutory liability protections for tech companies that engage in censorship and political conduct and cuts federal funding for social media companies that censor users' political views.


Facebook CEO Mark Zuckerberg has even weighed in and stated that they "have a different policy" than Twitter on this, and that Facebook will not be "the arbiter of truth of everything people say online".

Communications Decency Act & the First Amendment

Under the Communications Decency Act generally, platforms are ordinarily not liable for users' defamatory or otherwise problematic posts, while publishers that actively shape and create content do face liability. Many pundits have stated that platforms like Twitter have effectively become the public square envisioned by the Founders when they drafted the First Amendment and thus should be constitutionally restricted from censoring content on their platforms.


However, it will ultimately be very difficult for the administration to win on this issue, notes Fox News legal analyst Andrew Napolitano, because Twitter is not a state-owned medium. “The First Amendment, which guarantees the freedom of speech and of the press only regulates the government, [it] does not regulate Twitter," the former New Jersey Superior Court judge said.


Indeed, "the D.C. Circuit Court of Appeals handed Twitter and other tech giants an early win on the issue, finding that in the absence of state action, there can be no First Amendment violation.  The court also did not find a Sherman Antitrust Act violation, even though the plaintiffs alleged that big tech was conspiring to advance a left-wing agenda in restraint of commerce."

Now what? How does this affect us?

This is the big question. Even if Twitter does not constitute a public/state entity that could be found in violation of the First Amendment for censoring users' tweets, there could very likely still be a great deal of fallout for all of us.


If the Executive Order is upheld and liability protections are indeed stripped from social media sites based on their content restriction policies, these same sites would likely have to be even more cautious about what content they allow by users, elected officials included.


Twitter, like any company, can be regulated by the free market: if this all backfires by way of bad PR, then users may choose to use other social media platforms instead. The legal challenge, as many have noted, will probably overturn the order in due course, but who knows how long that will take.


In the meantime, others are already turning up the heat on the platform, like Ted Cruz who asked the DOJ to launch a criminal investigation into Twitter for providing social media accounts to Iranian leaders in violation of American sanctions on the country.


Texas Impact

It should be no surprise to anyone active at the Texas Capitol that the most effective way of reaching a Texas Legislator is through Twitter. 98% of all legislators in Texas have a Twitter account and many of them are quite active - managing the account themselves (not through staff) and tweeting from the floor when votes are taking place.


It's been an open secret that this is a great way to get inside the heads of legislators while things are hectic on the floor and is the best way to get your message directly into the pocket (literally) of a legislator when you really need to make an impact.


So...now what happens if (when?) the Executive Order removes liability protection for Twitter and they subsequently start restricting even more content as a CYA mechanism? Very likely, you'll start to see an exodus from the platform, especially by elected officials.


Make no mistake - this is a net loss for anyone wanting to advocate their issues at the capitol.


For the first time, we've currently got everyone we need to reach all in one spot. And it's not like everyone will move cleanly over to another existing platform. Twitter and Facebook each have their niches and fit pretty well into them. Facebook is good for photos and keeping up with family. Twitter is good for minute-by-minute news and updates from political figures.


On one hand, it provides an opening for a new social media platform to swoop in and try to grab some market share. But for advocates, here's what you should watch for so you don't get left behind:

  • Watch the debate and legal battle very closely to know what the current status of the fight is

  • Listen to your elected officials in how they respond to it and what they're saying about it

  • Try to track the elected officials you need to stay in touch with on other platforms as well and see if their usage of other platforms increases as this unfolds

  • Stay up-to-date on new social media platforms like Gab, which touts itself specifically as a free speech platform.

©2020 by Salient Strategies