Did Twitter Cross the Line by Commenting on Trump's Tweets?

LOS ANGELES & SAN FRANCISCO

www.dailyjournal.com

TUESDAY, JUNE 23, 2020

PERSPECTIVE Did Twitter cross the line by commenting on Trump’s tweets?

By Daniel Rozansky, the publisher or speaker of any Last month, Trump pub- “Twitter now selectively de- Cristy Jonelis and information provided by anoth- lished two tweets about mail-in cides to place a warning label Karine Akopchikyan er information content provid- ballots claiming, “There is NO on certain tweets in a manner er.” The statute “bars lawsuits WAY (ZERO!) that Mail-In that clearly reflects political witter is in the limelight seeking to hold a service pro- Ballots will be anything less bias.” By his executive order, after it flagged andvider liable for its exercise of a than substantially fraudulent” Trump directed Secretary of T commented on Presi- publisher’s traditional editorial and “This will be a Rigged Elec- Commerce Wilbur Ross, along dent Donald Trump’s tweets on functions — such as deciding tion.” Even if Twitter believed with Attorney General William three different occasions in the whether to publish, withdraw, that Trump’s tweets were false, Barr and the National Tele- past few weeks. While Twitter, communications and Informa- like other interactive computer Section 230 expressly provides that an ‘entity tion Administration, to file a service providers, enjoys pro- petition for rule making with tection under the Communi- that is responsible, in whole or in part, for the the Federal Communications cations Decency Act from an creation or development of information’ is not Commission for the agency to array of civil claims including “expeditiously propose regula- defamation, such protection immune under Section 230 for liability related tions to clarify” certain provi- is not unlimited. As a result, to the publication of that information. sions of Section 230. Specifi- Twitter should be mindful that cally, Trump wants the FCC to its responses to the president postpone or alter content.” Fed. it would face no liability for clarify “(i) ‘the circumstances may fall outside the scope of Trade Comm’n v. LeadClick publishing such tweets given under which a provider of an the CDA’s protection, thus ex- Media, LLC, 838 F.3d 158, the immunity provided by Sec- interactive computer service posing it to civil liability. To 174-75 (2d Cir. 2016) (internal tion 230. Nevertheless, Twitter that restricts access to content further complicate matters, the citation omitted). Stated other- responded to the president’s in a manner not specifically president has issued an execu- wise, online service providers tweets by flagging them with protected by subparagraph (c) tive order that may impact the that host or republish speech a link stating, “! Get the facts (2)(A) may also not be able scope of the CDA and there- are protected from various laws about mail-in ballots.” The link to claim protection under sub- fore impact Twitter’s response that would otherwise hold them is to a new Twitter “thread” paragraph (c)(1), which mere- to further presidential tweets. accountable for the conduct or with commentary from Twitter. ly states that a provider shall Congress initially enacted the words of third parties. Section Specifically, Twitter noted that not be treated as a publisher or CDA to prevent minors from 230 therefore serves to promote it flagged the tweets as part of speaker for making third-party accessing sexually explicit ma- free speech by allowing online its “efforts to enforce [its] civic content available and does not terials on the internet. Though service providers to publish integrity policy” and published address the provider’s respon- the U.S. Supreme Court sub- content without the fear of lia- its opinion that Trump’s tweets sibility for its own editorial de- sequently struck down por- bility. If not for Section 230, in- “could confuse voters about cisions’ and (ii) ‘the conditions tions of the CDA pertaining teractive computer service pro- what they need to do to receive under which an action restrict- to indecency on the grounds viders such as Amazon or Yelp a ballot and participate in the ing access to or availability of that such portions violated may not allow customers to election process.” Twitter also material is not “taken in good First Amendment rights of free post online reviews and social provided viewers further con- faith’ within the meaning of speech (Reno v. ACLU, 521 media platforms such as Face- tent about mailing ballots and subparagraph (c)(2)(A) of sec- U.S. 844 (1997)), Section 230 book or Twitter may not allow links to various news articles. tion 230.” of the CDA remains. Section users to post videos and com- Two days later, Trump is- Was it necessary, however, 230 states that “[n]o provider mentary, given the time and sued an executive order in re- for Trump to issue an executive or user of an interactive com- cost involved with prescreening sponse to Twitter’s conduct. order to challenge Twitter’s re- puter service shall be treated as material to be posted. Specifically, Trump stated that sponse? With respect to Twitter’s de- interpreted as altering the election process.” Twitter’s created content in response cision to flag Trump’s tweets tweets, such conduct likely responses are original content to its decisions to act upon as part of its “efforts to enforce would be considered a tradi- and posted on its behalf. Thus, Trump’s tweets. Most recent- [its] civic integrity policy,” tional editorial function. it appears that Twitter would ly, on June 18, Trump tweeted such conduct would almost Twitter did not, however, not be protected under Section a doctored video edited to ap- certainly be protected under solely flag the tweets. It also 230 for any liability stemming pear as though CNN ran a sto- Section 230. Section 230 pro- provided a link to a new thread from these publications. ry about a ‘racist baby.” Twitter vides immunity for “any action that contained commentary Twitter should be mindful of promptly flagged the video as voluntarily taken in good faith about Twitter’s decision to flag its potential liability as it de- “manipulated media” and pro- to restrict access to or availabil- the tweets. By providing this cides to create content by com- vided a link which informed ity of material that the provid- additional commentary, Twit- menting on its decisions to flag readers that “the president er or user considers to be ob- ter created additional content. certain tweets by Trump. This shared a version of the video scene, lewd, lascivious, filthy, Section 230 expressly provides is especially true here, where which many journalists con- excessively violent, harassing, that an “entity that is responsi- Trump’s Twitter-feud with firmed was edited and doctored or otherwise objectionable, ble, in whole or in part, for the Twitter is likely to continue. with a fake CNN chron.” whether or not such material creation or development of in- For example, on June 3, Trump Though Twitter may lose the is constitutionally protected.” formation” is not immune un- tweeted a video that included a protection of Section 230 by Twitter, however, did not re- der Section 230 for liability re- montage to George Floyd and creating content in response strict access to Trump’s tweets. lated to the publication of that support for the Black Lives to Trump’s tweets, it still will Rather, it flagged them. By information. Matter protest, and Trump not face liability unless the flagging them, Trump could ar- Here, Twitter created and speaking in the background. created content violates any gue at most that Twitter’s con- published a thread that contains Twitter disabled the video and law. In other words, if Twitter’s duct served to alter his tweets. Twitter’s independently drafted wrote the following in its place, created content does not con- Section 230, however, “bars and published content about “This media has been disabled tain defamatory or otherwise lawsuits seeking to hold a ser- mail-in ballots for the 2020 in response to a report by the actionable statements, then vice provider liable for its exer- election. Specifically, in the copyright owner.” Trump did Twitter does not need the pro- cise of a publisher’s traditional new thread, Twitter stated that not take kindly to Twitter’s tection of Section 230 in any editorial functions — such as “Trump makes unsubstantiated response, tweeting an article event. Accordingly, pending deciding whether to publish, claim that mail-in ballots will about its response and stating: any clarification by the FCC of withdraw, postpone or alter lead to voter fraud” and provid- “They are fighting hard for the Section 230, so long as Twitter content.” Fed. Trade Comm’n, ed cites to CNN and Washing- Radical Left Democrats. A one does not post its own unlawful 838 F.3d at 174-75 (internal ci- ton Post in support of its com- sided battle. Illegal. Section content, its feud with Trump tation omitted). The CDA fur- ments. Twitter also explained 230!” Twitter CEO Jack Dors- can remain on Twitter, and not ther allows service providers to, its reasoning for flagging the ey replied, stating, “Not true a courtroom.  in good faith, engage in block- tweets as an effort “to enforce and not illegal. This was pulled ing and screening of third-party [its] civic integrity policy” be- because we got a DMCA [Dig- Daniel Rozansky is a partner, content. Song fi Inc. v. Google, cause it believes the tweets ital Millennium Copyright Act] Cristy Jonelis is senior coun- Inc., 108 F. Supp. 3d 876, 883 “could confuse voters about complaint from copyright hold- sel, and Karine Akopchikyan (N.D. Cal. 2015). Here, even what they need to do to receive er.” Thus Twitter, through its is an associate at Stubbs if flagging the tweets could be a ballot and participate in the CEO’s tweets, has once again Alderton & Markiles, LLP.