Category: Digital Culture

Trump’s Blocking Twitter Followers Unconstitutional Says Court

On Wednesday, a federal court for the Southern District of New York held that President Trump violated the First Amendment when he and his Social Media Director Daniel Scavino blocked users on Twitter because they were critical of the President and/or his policies via the @RealDonaldTrump account. The story caught my attention—not only as a citizen who wants a president to both respect the Constitution and have the backbone to endure a little criticism—but also because I wondered if the court’s opinion might state or imply that the Twitter platform as a whole is a public forum vis-a-vis the First Amendment. The short answer is No.

Readers may remember when “digital rights” groups swooned over the opinion in Packingham v. North Carolina, finding the State had overreached in barring internet access to registered sex-offenders, and in which Justice Kennedy described the internet as one of the “most important places for the exchange of views.” The digerati even speculated that the opinion in Packingham might imply that Section 512(i) of the DMCA, requiring account termination for repeat copyright infringement, could be held unconstitutional.

The major internet platforms have long overstated their obligation to the First Amendment on behalf of users—usually citing our free speech as the reason to keep their digits off all user-uploaded content, even if the content is illegal or otherwise harmful. This posture is based on the “neutral platform” principle, which has less to to with free speech and more to do with avoiding corporate liability for actionable uses of their platforms.

For several years, the public generally bought into the “neutral platform” concept until the Russian meddling story broke, and then everyone remembered that, in fact, social media platforms are private companies free to exercise editorial control over content without implicating the First Amendment. And in a recent twist, The Guardian reports that Facebook is seeking to have a lawsuit dismissed on the grounds that, get this, it’s a publisher with the right to edit content. Stay tuned on that one.

Still, the question remains, from our perspective as users, as to exactly when a social media platform constitutes a public forum in a constitutional sense and when it doesn’t; and this recent decision involving the @RealDonaldTrump Twitter account is among the first opinions to provide some answers.

Judge Naomi Reice Buchwald awarded the plaintiffs declaratory relief stating that President Trump’s blocking them from following his Twitter account was an abridgment of their First Amendment rights—but only under a very narrow analysis in which the @RealDonaldTrump account constitutes a public forum. In this case, the forum arises from a combination of two sets of facts: first, that the once-personal account of Donald Trump is now used to make official statements by the President of the United States; and second, that only a follower of a Twitter account can interact directly with the account-holder’s tweets by composing tweets that are then visible to all other users in that specific context. As stated in the opinion …

“The audience for a reply extends more broadly than the sender of the tweet being replied to, and blocking restricts the ability of a blocked user to speak to that audience.”

As I said, it’s a very narrow standard defining this particular account as a public forum, and the opinion even calls the injury done by blocking di minimis but also states that di minimis abridgment of speech is still unconstitutional. The defense’s arguments that a blocked user can still read the Twitter feed of @RealDonaldTrump and remains free to criticize the president in any other manner were not persuasive that a First Amendment violation did not exist.

Judge Buchwald also noted in her opinion that a public official who uses social media for purely personal communications would be free to block users without implicating the First Amendment. Public officials are still entitled to private lives, including the right to ignore or avoid critics or haters—even on a publicly-visible, but privately-used, social media feed.

The defense also sought to argue a separation challenge—that the court does not have jurisdiction in this case over the Executive, but countering this, Judge Buchwald states that an order to unblock these users does not, “direct the President to execute the laws in a certain way, nor would it mandate that he pursue any substantive policy ends.” Instead, the court affirms that the President must comply with the Constitution he took an oath to protect and defend.

That said, in order to steer a wide path away from any separation conflicts, Judge Buchwald stopped short of issuing an injunction (an order) to unblock the users and instead issued a declaratory judgment (more like a recommendation) that the President has violated the First Amendment. According to Newsweek yesterday, Trump has so far defied the court, and users remain blocked.

Assuming the Republic survives this mess and social media remains something we all use in the foreseeable future, this case may prove instructive as a first step in defining when use of these platforms legitimately implicate the First Amendment. I suspect the answers will continue to be narrow—that it will not suffice return to the over-broad assumption that platforms are merely neutral hosts of protected speech because it seems clear that such absolutes do not apply.

This has implications for cyber policy going forward. As many colleagues have repeated—and are only now being heard—the pecuniary interests of web platforms trained society to obliterate boundaries like consent and decency—to say nothing of truth. And there is an extent to which the current President’s apparently cult-like use of Twitter to speak only to admirers is a byproduct of that same folly. Yes, in this instance, I believe the President should unblock those users in deference to the court’s opinion; but in general we should also should take note that the internet industry’s chronic appeals to our free speech as their liability defense is as legally untenable as it is morally objectionable.

Fool me once, shame on Facebook …

In several posts on the subject of Facebook and fake news, I have opined that if we users are going to believe and disseminate bogus information, that’s mostly an us problem, one which Facebook likely cannot solve. In that spirit, there is an extent to which I agree with Mike Masnick’s Techdirt post on May 2 calling Facebook’s plans to rank news sources according to trustworthiness a “bad idea.” At least I agree with Masnick that a human flaw like confirmation bias is a “hell of a drug,” which cannot be counteracted by whatever algorithmic wizardry Zuckerberg & Team may devise.

But other than conceding that people are imperfect, subjective beings, and therefore susceptible to false information, I disagree with the rationale Masnick seems to apply in his critique of Facebook’s plans. He writes, “…as with the lack of an objective definition of ‘bad,’ you’ve got the same problem with ‘trust.’ For example, I sure don’t trust ‘the system’ that Zuckerberg mentions…to do a particularly good job of determining which news sources are trustworthy.”

Perhaps that’s just wordplay, but I find Masnick’s allusion to the subjectivity of trust to be symptomatic of the same populist affliction that precipitated the post-truth world in which we now live. I had hoped that the moment we elected a president who openly lies on Twitter, that this might at least serve as a clear and profound rebuttal to the cyber-utopian mantra that everything—including journalism—needed disrupting. Because if trustworthiness in news is not, on some level, objectively quantifiable, then all journalism must devolve to the exigencies of confirmation bias.

A functioning and humane democratic society depends on limits to democracy itself—on deference to expertise based on certain objective criteria to decide when that deference has been earned. It is essential that a reporter write, This Thing Happened—or even Here’s Why This Matters—and that a plurality of reasonable people accept the report as reliable based on objective (if subtle) metrics. Years of experience, background, track record, tone and style, and, yes, the organization a reporter works for should all factor into this assessment. So, I reject the proposal that “trust” is nearly so subjective as “bad” in this context. The integrity of a news report is not a matter of taste. Yet, Masnick writes …

“Facebook should never be the arbiter of truth, no matter how much people push it to be. Instead, it can and should be providing tools for its users to have more control. Let them create better filters. Let them apply their own “trust” metrics, or share trust metrics that others create.”

Call me a curmudgeon, but how is “applying one’s own trust metrics” any different from the same confirmation bias problem that social media tends to exacerbate in the first place? Masnick’s solution appears to be more confirmation bias, resembling the cliché that insists “more speech is the only solution to bad speech.” If that premise was ever true (and I have my doubts), it has been obliterated by the phenomenon of social media where more is often the enemy of reason.

Masnick is right, of course, that users who like Infowars are going to respond negatively if Facebook ranks that platform as less trustworthy than The New York Times or Wall Street Journal; but that’s a business problem for Facebook—one I could care less about because Infowars IS objectively less trustworthy than those news sources. And lest anyone think that’s liberal bias talking, I’ll say the same thing about Occupy Democrats or any of the other non-news sources my friends link to all the time.

These platforms don’t deserve equal footing with actual journalism, and if Facebook wants to rank news sources, fine. Whatever. I’m probably as skeptical as Masnick that it will do much good in the grand scheme of public discourse, but I think he exaggerates when he calls Facebook an “arbiter of truth.” This sounds more like the blogger who tends to oppose platform responsibility full stop than a complaint about what Facebook is doing wrong in grappling with its role as a conduit of news. In fact, it’s hard to fathom exactly what Masnick proposes as a solution when he writes, “The answer isn’t to force Facebook to police all bad stuff, it should be to move back towards a system where information is more distributed, and we’re not pressured into certain content because that same Facebook thinks it will lead to the most ‘engagement.’”

That reads like the suggestion is Facebook should not be Facebook, which is probably a non-starter as far as the shareholders are concerned. Instead, I tend to think that Facebook should be recognized for the flawed, highly-manipulated, walled-garden it is and placed in its proper context—as an activity to be moderated like video gaming or junk food. Because with or without rankings, we really have no idea what the psychological effect is of just scrolling past images and headlines that trigger dozens of subconscious emotional responses in a matter of minutes. Meanwhile, to the extent that Facebook remains a source of news and information, if ranking means I’ll encounter The Daily Beast more often than The Daily Democrat, I’ll count that as a win.

Cruz Asks Zuckerberg the Section 230 Question

During Tuesday’s Joint Senate Committee hearing, as Mark Zuckerberg kept promising to take better control over content on Facebook, Senator Ted Cruz (R-TX) asked the CEO point blank if the site is a neutral platform or a publisher. Cruz acknowledged the company’s right to act as a publisher but also alluded to the fact that its liability protection under Section 230 of the Communications Decency Act is based on the fact that, as a host of user-generated content, Facebook is presumed to be a neutral platform.

It was a little surprising when Zuckerberg said he’s not familiar with the statute that universally shields his company from most forms of liability, but Section 230 of the CDA is just that. As explained in an older post, this statute broadly immunizes websites that host user-generated content against civil and criminal liabilities that may arise from users’ online conduct. It is in fact so universally applied as a defense that on Wednesday, FOSTA (Fight Online Sex Trafficking Act) was passed in order to clarify that Section 230 was not meant to shield site owners from liabilities stemming from sex-trafficking minors.

But the real bee in Cruz’s bonnet provoking his question is his general belief that social media platforms censor “conservative” content while favoring “liberal” content. I have no idea whether there’s any data to support that allegation, but I doubt the senator has the data himself, or he probably would have alluded to more than anecdotal evidence during the hearing.

Regardless, Cruz’s line of inquiry, without necessarily meaning to, gets to the heart of just how complicated Facebook’s current challenges may be—that is if they really intend to address them. It’s hard enough to define “liberal” and “conservative” these days, but that seems like child’s play compared to expecting Facebook to draw lines for appropriate censorship that a majority of users will agree are the right lines, independent of our political opinions.

I’m inclined to believe Zuckerberg when he says he wants Facebook to be an engine of social good, but for most organizations, striving for that goal usually requires making a decision about what is and is not good and then earning the support of those who agree and accepting the opprobrium of those who do not. This is a fundamental problem with being a so-called neutral platform for social good: there’s nothing neutral about our diverse opinions about goodness. Plus, it’s the nature of politics to cross lines of decorum and truth; and social media is a very cost-effective means of provoking emotional responses to messaging on just about any topic.

So, it’s easy for senators to allude rhetorically to a consensus about where the lines are for internal, corporate censorship, but I am skeptical that such a consensus actually exists for us Americans, let alone Facebook’s majority non-American users. And the hotter the issue, the more jagged the lines are going to be. Plus, social media algorithms respond to popularity; so an issue like guns, for instance, may naturally trend in opposition to a guy like Cruz if in fact most Americans favor regulation.

On that topic, if a friend takes and posts a photo of a billboard in Louisville that says “Kill the NRA,” will that be that someone’s (or some AI’s) definition of inciting violence? Probably. According to USA Today, when that billboard appeared in February, the NRA’s Facebook page posted a photo of it, saying the billboard was, “a wakeup call. They’re coming after us.”

From a First Amendment standpoint, neither the photos of the billboard nor the NRA’s response warrants censorship, and perhaps this would be true of Facebook policy as well. Or Facebook could make a decision that both the billboard photo and the NRA response cross some line in the violence category, although it seems very hard to completely remove the rhetoric of violence when the issue itself is weapons.

Throughout the hearing, Zuckerberg consistently reiterated plans to eventually deploy AI to help weed out toxic content; and although this may address the manpower challenge of moderation, it doesn’t help answer the more nuanced problem that we as a society do not have a common definition of what content would qualify as toxic. Does this mean we would cede that ethical calculus to the AI, which is eerie on a whole other level?

Predictably, the EFF published a post arguing that reliance on AI for content filtering will only result in over-censorship, and I have to say (rare though it is) that I tend to agree with the organization that it seems almost impossible to distinguish between, for instance, “hate speech” and a discussion about “hate speech.” Where the EFF and I part on this subject is that they’ve already concluded that Facebook has an obligation to free speech, while I view this current dust-up as a catalyst for, perhaps, finally addressing that unresolved assumption.

Still, it seems damn difficult to reconcile the fact that social media adds an especially volatile fuel to the political tinderbox while Zuckerberg sincerely hopes that Facebook will be an “engine of good.” Maybe Facebook will ultimately have to answer Cruz’s question by saying that it is a publisher, and that it has both a right and a responsibility to cultivate whatever community its leadership deems to be a “social good.”

Yes, this would obliterate the liability protections established by both the CDA and the DMCA, but maybe there are remedies other than a blanket shield for platforms that achieve the size, scope, and influence of a Facebook or a YouTube. After all, if Congress is actually trying to achieve anything in this investigation—if this isn’t just political theater—their questions imply a new paradigm for public/private cooperation in cyberspace. As described in a recent post, we have yet to attempt the unprecedented balancing act between the kind of public commons/private community that a Facebook truly is.