In 2010, the Supreme Court ruled in Citizens United that corporations have the same First Amendment rights as people. Many Republicans, including Sens. Josh Hawley and Ted Cruz, strongly support the decision, which allowed corporations to spend unlimited sums on elections. These senators, however, have also long argued that the government should intervene to protect conservatives from social media bias. Donald Trump’s war on Twitter for adding disclaimers to his false and violent tweets aligns neatly with their crusade. Hawley and Cruz now support the president’s attempt to penalize tech companies that “censor” political speech like Trump’s. They claim to be standing up for free expression, but nothing is further from the truth: This crusade presents a direct threat of government censorship that flies in the face of Citizens United.
The GOP’s displeasure with Twitter appears to grow out of a conviction that the platform suppresses conservative speech. This conspiracy theory is simply not true, but it allows Republicans to frame themselves as victims of the censorial liberals who allegedly run Silicon Valley. By flagging noxious Trump tweets, Twitter added fuel to the fire—even though its approach does not actually censor the president. So far, the company has invited readers to learn the facts behind his screeds and warned the public about violent content. Anyone can still read Trump’s words alongside Twitter’s brief precautionary disclaimers. Regardless, the Republican Party still chose to have a meltdown about ostensible censorship. (Remember that Twitter literally cannot violate the First Amendment because it is not the government.)
In response, Trump issued an executive order on Thursday that would revoke tech companies’ protections against liability if they “stifle viewpoints with which they disagree.” These protections arise from Section 230 of the Communications Decency Act, which Congress passed in 1996 to encourage content moderation. Congress did not want these companies to remain neutral, as the executive order incorrectly asserts. Rather, lawmakers sought to grant websites the freedom to remove undesirable speech without fear of retribution. So Congress created both a shield and a sword: Companies would not be held liable for content that other users posted to their websites, but they would also not be liable for policing their own platforms.
Trump and his Republican allies, however, have bought into the faddish but fictitious theory that Section 230 requires neutrality and strictly limits content moderation. His order would empower the Federal Communications Commission to strip the law’s protections from tech companies that target conservative expression. Cruz and Hawley strongly support this idea: Cruz spent Friday morning spreading incoherent disinformation about Section 230, while Hawley sent a menacing letter (filled with legalistic gibberish) to Twitter CEO Jack Dorsey.
This assault on a tech company would not be surprising if Cruz and Hawley hadn’t positioned themselves as champions of corporate free speech. Cruz, for instance, has repeatedly declared that opponents of Citizens United were seeking to “regulate political speech” by limiting corporations’ ability to spend money on elections. Now a corporation is engaging in political speech—and Cruz is itching to regulate its First Amendment rights away.
Twitter uses those First Amendment rights in two related ways. First, it exercises editorial discretion over the content that appears on its site. The company, not the government, gets to decide what speech appears on its site. True, Twitter has announced a desire to engage in viewpoint-neutral content moderation. But the government has no constitutional authority to hold the company to this aspiration. Just as a state cannot force a newspaper to run an op-ed by a specific candidate, the federal government cannot force Twitter to host speech expressing certain views. Neither the president nor Congress nor FCC bureaucrats can require the company to associate itself with objectionable speech. If Twitter decided to ban all tweets praising Trump, the government could not stop it.
Second, Twitter has its own right to speak freely, to editorialize about the content that appears on its site. By flagging Trump’s tweets and labeling them false or dangerous, the company is engaging in core First Amendment expression. It is frighteningly authoritarian for lawmakers to punish anyone—a private citizen, a newspaper, a social media platform, even a commercial business—for objecting to the president’s outbursts. Yet that is exactly what the executive order envisions. It promotes a legal theory that would, for example, let the FCC penalize the New York Times for removing comments that criticize Trump.
Restricting the free speech of a newspaper might seem more constitutionally problematic than restricting the free speech of a social media platform. But in Citizens United, the Supreme Court held that there is no constitutional distinction between media companies and other corporations. When it comes to political speech, the New York Times (which exists to disseminate news) has no greater First Amendment rights than McDonald’s (which exists to sell hamburgers). The “institutional press,” Citizens United proclaimed, has no “constitutional privilege beyond that of other speakers.”
When Twitter moderates content—by either flagging or deleting problematic tweets—it is acting as a traditional speaker, expressing its own views while dissociating itself with others. Trump and his boosters seek to retaliate against the company for engaging in these core First Amendment activities. By revoking Twitter’s Section 230 safeguards, they would allow individuals to sue the site for content posted by users. To protect itself from endless lawsuits, Twitter would have to screen every tweet before it is posted to ensure it isn’t defamatory. In other words, Twitter would cease to exist, at least in any recognizable form.
The First Amendment bars the government from retaliating against protected speech, so the FCC’s ability to withdraw Section 230 immunity on the basis of political expression is dubious at best. And since Congress has refused to amend the law to Trump’s liking, his executive order is going nowhere. We should still take Republicans’ threats seriously. They reveal that, for politicians like Cruz and Hawley, corporate free speech is not a true principle but a mere excuse for letting businesses buy elections. Under Trump, Republicans are fair-weather friends of Citizens United, happy to jettison their putative beliefs to help the president score points against his perceived opponents. If they want to find the real censors, they should look in the mirror.
For more on Trump and Twitter, listen to What Next: TBD.