Blue State Blues: Donald Trump Is Defending the First Amendment; Joe Biden Is Attacking It

Trump executive order (Doug Mills - Pool / Getty)
Doug Mills - Pool / Getty

President Donald Trump’s executive order on Thursday cracking down on social media censorship stirred protests from the usual quarters.

Former Vice President Joe Biden claimed that Trump’s order is “an extreme abuse of power” and “demonstrates a complete misunderstanding of the role and function of the federal government.” The opposite is true. Trump’s executive order is well-founded in the principles of the First Amendment and stays well within existing law.

The order tackles the thorny problem of selective censorship by platforms that, while privately owned, have become the public spaces of our digital era. At a moment when most of us are literally prohibited from gathering physically in large numbers, due to coronavirus restrictions, the only spaces in which we can exercise our First Amendment rights meaningfully are online. And the companies that own those spaces have monopoly power; there are few alternatives.

There is nothing in the executive order that violates those companies’ right — under the First Amendment — to say, or exclude, what they want. But it enforces the terms of the special exemption that those companies have enjoyed from the libel laws that apply to everyone else. It also emphasizes the government’s own right not to advertise on platforms that practice censorship. And the order holds those companies to their own terms of service, reporting instances of bias.

Section 230 of the Communications Decency Act provides: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”

The moment social media companies begin policing ordinary opinions — or “fact-checking” matters very much in dispute — they cease to become mere platforms and become publishers, as vulnerable to libel laws as any ordinary person is.

Twitter’s extraordinary intervention this week in slapping a fact-check warning on President Trump’s tweets about California’s plan for mail-in voting was not only factually incorrect itself, but also premature. Two separate lawsuits were filed in the past few days challenging Gov. Gavin Newsom’s authority to send mail-in ballot applications to all registered voters. Twitter’s “fact check” was just another statement of opinion. It has no special claim to immunity.

Trump’s executive order on social media censorship follows the pattern of a similar order last year about free speech on college campuses. In that case, Trump insisted on “compliance with the First Amendment for public institutions and compliance with stated institutional policies regarding freedom of speech for private institutions.” He directed federal agencies to make sure “institutions that receive Federal research or education grants” upheld free speech principles.

That executive order was constitutional, and so is the new one. It does not dictate to private institutions what they can and cannot say, or exclude. But it removes the sense that they are entitled to federal money and regulatory shelter.

It is Biden who seems not to understand free speech and the Constitution. In his statement Thursday evening, Biden complained that “President Trump believes that he should be permitted to say whatever he would like, regardless whether it is true or false.” Of course he can, within the boundaries of the law. So can anyone. That is precisely what the First Amendment is about. It protects Biden’s lies about the NAACP just as much as it protects Trump’s tweets.

Biden does not understand that. And on the question of social media companies, he cannot help contradicting himself.

On the one hand, he says that private companies should not be required to “provide a venue for, and amplification of, the President’s falsehoods.” In the same paragraph, Biden says that the same private companies “should be held accountable” for content they allow to be disseminated on their platforms that he deems “false.” So — which is it?

Amazingly, Biden is running against the First Amendment. Like Hillary Clinton before him, he rejects the Supreme Court’s decision in Citizens United (2010), which protected the free speech of corporations. In his platform, Biden  calls for a constitutional amendment to reverse that decision. He has a poor record on free speech generally: the Obama-Biden administration even backed a proposal at the United Nations by Muslim nations to restrict “blasphemy.”

Trump’s rhetoric on this issue, as on others, is combative and over-the-top: he cannot “close … down” social media companies.

Yet his actions, as usual, not only obey the Constitution, but also reinforce it. Biden would do the opposite.

Joel B. Pollak is Senior Editor-at-Large at Breitbart News and the host of Breitbart News Sunday on Sirius XM Patriot on Sunday evenings from 7 p.m. to 10 p.m. ET (4 p.m. to 7 p.m. PT). His new book, RED NOVEMBER, is available for pre-order. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. Follow him on Twitter at @joelpollak.

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