Donald Trump claims that fact-checking is an assault on free speech.
He is—it should go without saying—wrong. Indeed, the whole point of the First Amendment was to establish the right of the people and the media to object to claims by presidents and other powerful officials—especially when those claims are lies.
Unfortunately, Trump needs his lies. Desperately. The president understands that at a point when his approval ratings are collapsing because of a jarringly awful response to the coronavirus pandemic and mass unemployment, only a campaign based on false premises and the crudest deceits can keep him competitive in the 2020 presidential race. So this president is ready to use the power of his position to attack the basic underpinnings of the First Amendment. Furious that Twitter attached a clarifying link to a false tweet he sent about mail-in voting, Trump on Wednesday tweeted, “Big Tech is doing everything in their very considerable power to CENSOR in advance of the 2020 Election. If that happens, we no longer have our freedom. I will never let it happen! They tried hard in 2016, and lost. Now they are going absolutely CRAZY. Stay Tuned!!!”
On Thursday, in what The Hill described as “a marked escalation of his lengthy feud with Silicon Valley over allegations of anti-conservative bias,” Trump signed an executive order that seeks to increase the authority of the government to regulate social media platforms. The order would strip liability protection from companies that give a platform to controversial content, have Attorney General William Barr work with states to develop regulations, and ensure that government funding does not go to news outlets that “suppress” speech that the administration favors.
Trump declared, “We’re here today to defend free speech from one of the greatest dangers.”
His statement twisted the truth to the breaking point—as even he seemed to acknowledge when he admitted during the signing of the order, “I guess it’s going to be challenged in court.”
The president is not defending the First Amendment. He is proposing a fiercely unconstitutional reinterpretation of it that serves his political interests.
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“Much as he might wish otherwise, Donald Trump is not the president of Twitter,” declared the American Civil Liberties Union as a draft of the order circulated early Thursday. “This order, if issued, would be a blatant and unconstitutional threat to punish social media companies.”
That’s true. But this is about more than Trump’s feud with the managers of a social media platform.
As Harvard Law School professor Laurence Tribe reminds us, “The unconstitutional character of his threats doesn’t prevent them from undermining everyone’s liberties.”
Trump is playing politics. He knows he has to discredit even mild assertions of the facts because, as he prepares for a difficult reelection race, he has nothing but lies to offer the American people. So he is not merely attacking fact-checking but trying to revoke the right to speak truth to power.
The specifics of what Trump proposes are draconian. The media advocacy group Free Press reviewed the draft of the president’s order and labeled it an “unconstitutional attempt to silence critics and fact checkers.” Of deepest concern were plans to:
- require the Federal Communications Commission to craft a rule that would potentially exempt social-media companies from protections under Section 230 of the Communications Decency Act, a federal law that shields companies from legal liability for the material their users post online.
- call on the White House Office of Digital Strategy to “reactivate” a tool through which people can report cases of “online censorship and other potentially unfair or deceptive acts or practices by online platforms.” The tool would collect complaints of online censorship and submit them to the Department of Justice and the Federal Trade Commission for potential follow-up.
- prohibit all federal agencies and offices from spending government money on advertising with platforms that allegedly “violate free speech principles.”
Free Press senior policy counsel Gaurav Laroia argued on Thursday that the order is “a naked attempt by the president to bully into silence Twitter, other social-media sites and anyone who attempts to correct or criticize Trump. This blatant and bungling attempt at censorship is outrageous and unconstitutional.”
It is also a political strategy.
Trump has core supporters who are likely to embrace whatever he says, no matter how outrageous it may be. But that base is insufficient to reelect him. To get the votes he needs, he has to convince a wider portion of the electorate that factual reports of his wrongdoing and incompetence are part of a media conspiracy to dislodge him from the White House. That’s why the president keeps claiming that media outlets and individual journalists are “enemies of the people.” And that’s why he and his campaign are now going after Twitter and other social media platforms. When Twitter finally got around to some mild fact-checking of Trump, his campaign manager, Brad Parscale, reacted by saying, “We always knew that Silicon Valley would pull out all the stops to obstruct and interfere with President Trump getting his message through to voters. Partnering with the biased fake news media ‘fact checkers’ is only a smoke screen Twitter is using to try to lend their obvious political tactics some false credibility.”
Trump has charted his course. The question now is whether presumptive Democratic presidential nominee Joe Biden and his campaign will counter Trump effectively. To do that, the Democratic campaign must provide a robust defense of freedom of speech, freedom of the press, and Net neutrality—the First Amendment of the Internet. One statement won’t do. Biden and his supporters have to make this fight central to their 2020 campaign and explain what’s at stake. They do not have to defend media monopolies or tech titans. They have to defend the Constitution itself—boldly and in explicit detail. Trump has made the First Amendment an issue by attacking it. Democrats must mount a campaign that champions freedom of speech, freedom of the press, and the right to tell presidents they are wrong.