Trump and Twitter: the puzzle of controlling what public figures say on social media

Note: this article was translated from French by an automated tool For the first time, on May 26, Twitter decided to flag several Donald Trump tweets with a warning sign and a link to verified information. Three days later, on May 29, the social network restricted, in an unprecedented way, access to a tweet from the President, hiding it behind a warning that the tweet defended violence (" glorification of violence“), At odds with Twitter's rules. The possibility of commenting or sharing it has been excluded. 

Twitter's approach takes place in very specific circumstances, which have provoked an intense debate in the United States, as often with regard to the President's activity on Twitter. The first tweets thus reported relate to the controversial issue of postal voting that California, like other states, is putting in place for the presidential election next November. Although he himself voted by email in Florida last March, as pointed out The Guardian, the US President believes that remote voting could only lead to massive fraud and clearly fears that such a system will benefit Democrats. His tweets, which evoke a "rigged election" (" rigged election "), Were posted by Twitter with a link to a page created by the platform, which brings together contributions from different media and Fact-checkers showing how Trump's claims are poorly supported, if not mistaken.

Twitter's decision to insert this label underlining the inaccuracy of the President's remarks is a real turning point. Until now, the social network had always refused to intervene in the face of Trump's excesses. This decisive step can perhaps be explained by a new language gap that has aroused strong disapproval across the Atlantic. Indeed, in recent days, the US President has allowed himself to insinuate, in a series of conspiratorial tweets, that Joe Scarborough, former elected Republican of Florida today presenter on MSNCB, would have played a role in the death of his former collaborator, Lori Klausutis, who died of an undiagnosed heart disease. Outraged by Trump's accusations, the deceased's husband wrote a letter to the CEO of Twitter denouncing these “horrific lies” and requesting the deletion of the tweets concerned (Timothy Klausutis's Full Letter to Jack Dorsey and Twitter's Response, New York Times, May 26, 2020), a request relayed by many columnists and personalities (Kara Swisher, Twitter Must Cleanse the Trump Stain, The New York Times, May 26, 2020).

Twitter however strongly refused this request for deletion, claiming that these tweets did not violate its policy, following a line adopted long ago.

No censorship, but reports

Twitter has traditionally refused to censor tweets from politicians, citing the fact that these posts are of “public interest”. Public figures are therefore generally not subject to the terms imposed on other users. Even in the presence of language discrepancies, the platform does not resort to the means usually employed in the event of violation of the rules of use of the network, such as the injunction to withdraw a tweet, the locking of the user's account or its suspension. . However, the social network has been led, over the past year, to change its position in response to the multiple protests that the online activity of some leaders, starting with Trump, does not fail to arouse. 

En June 2019, Twitter has announced that it has adopted new rules for politicians. To benefit from this derogatory regime, the interested parties must have the following characteristics: have been or be able to be elected or appointed to public office, be followed by more than 100 users and have a verified account. Even if the tweets of such officials violate the rules of the platform (incitement to violence, harassment etc.), they are not removed as long as they have a value ofpublic interest (" clear public interest value "). They can, however, be masked by a warning message that must provide the context. 

However, this announcement was hardly followed up. In early July, Donald Trump made racist remarks about four elected Democrats without the slightest reaction from the social network, which simply stated that the tweets did not violate Twitter policy, even though the rules in force on the network in principle prohibit "targeting individuals by repeated insults or content aimed at dehumanizing, degrading or reinforcing negative or harmful stereotypes relating to certain categories of people ».  

In the fall of 2019, Twitter strengthened its system by announcing an update to its policy relating to leaders. The social network recalled the principle adopted in June: no censorship of tweets violating Twitter rules when they are of public interest, but the possibility of affixing them a warning. At the same time, the platform has warned that it will intervene - regardless of the interest of the tweet - in the presence of content containing serious violations such as the promotion of terrorism, clear and direct threats of violent actions towards individuals or dissemination of information of a private nature. In this case, the tweets of public interest of the politicians will be the subject of the same treatment as the others and can, if necessary, be hidden or deleted, the sanctions being able to go up account suspension. At the end of November, Twitter banned sponsored tweets for electoral or political purposes. 

These new arrangements, however, did not allow Democratic Senator Kamala Harris to get Twitter intervention following a series of tweets from President Trump targeting the whistleblower behind the Ukrainian affair. . Pointing out that the tweets included intimidation and threats against witnesses involved in the case, Harris said unsuccessfully called for the suspension of Donald Trump's account.

Increased control thanks to the health crisis

The health crisis has led Twitter to further review its doctrine. From March 18, the platform introduced new principles, and announced that the site would remove content constituting a clear call to adopt behavior that could directly create a risk to the health or well-being of people.  Twitter's new categories of fake news cover contesting containment decisions taken by local authorities, promoting ineffective treatments against covid19, contesting proven scientific facts concerning the transmission of the virus, inciting them to adopt behaviors that could cause panics or disorders ... S ' acting as governors, specifies the platform, their tweets violating these rules will, in principle, not be deleted but reported when they are of public interest, in accordance with previously adopted principles.

Regularly update, this new policy, which relies on information transmitted by official health authorities, has made it possible to fight against false information, particularly of a conspiratorial nature. At the end of March, Twitter did not hesitated to withdraw two tweets posted by Brazilian President Jair Bolsonaro, which included videos promoting the famous hydroxychloroquine and calling for an end to physical distancing strategies. Likewise, a tweet from Venezuelan President Nicolas Maduro evoking a decoction capable of eliminating the pathogens of the coronavirus has been withdrawn.  

However, Trump's tweets touting the benefits of hydroxychloroquine did not spark a reaction from Twitter. Certainly thethe platform did not hesitate to censor, end of March, lawyer Rudy Giuliani, who had quoted a tweet suggesting that hydroxychloroquine has a 100% effectiveness rate against the coronavirus. Butsharing, by the campaign manager of the President of the United States, of an article stating that chloroquine has a 90% chance of helping coronavirus patients did not generate an intervention, as Twitter did not see it as a clear call to take harmful action for the public. In mid-April, Twitter again refused to intervene when Trump appeared to urge residents of Michigan, Minnesota and Virginia to resist the lockdown in those states by simply calling for them to be "released". which did not appear to the social network as being likely to endanger the population. 

On May 11, however, the platform decided to strengthen his struggle against content that contradicts the opinions of public health experts by attacking tweets that do not generate an obvious and immediate risk, but can mislead the public. She warned that new alerts would be added to this title and once again specified as world leaders (world leaders) are affected by these new rules. In this context, tweets containing inaccuracies may be removed if the disinformation is flagrant and likely to cause damage in the real world. Tweets with questionable claims that pose a severe risk of harm may be flagged as greyed out and posted with a warning. Finally, tweets with controversial content but with moderate potential risk are not greyed out but may be linked with a link directing the user to other information on a page maintained by Twitter. 

It is therefore in this last category that Trump's tweets have been classified, which on May 26 prompted the intervention of the social network, although not directly related to the health crisis. In this regard, representatives of Twitter have highlighted that these tweets are in contradiction with the principle of "civic integrity" (" civic integrity policy“) Prohibiting users from engaging in manipulation or interfering with electoral or other civic processes, for example by posting misleading information that may dissuade people from participating in an election. they have specified that while Trump's tweets do not directly dissuade voters from voting, they nevertheless contain misleading information about postal voting likely to mislead the main stakeholders. In short, by using the expression "rigged election", Trump would have violated the principles defended by Twitter.

Three days later, on May 29, Twitter stepped in again to cover up a tweet from the President suggesting live ammunition could be fired at protesters in Minneapolis. Stressing that the tweet is of public interest, the social network did not delete it but hid it behind a warning message, stating that it violates Twitter rules by the "Glorification of violence" that it includes. If you can still share the tweet with a comment, it is no longer possible to "retweet" it, reply to it or click on the "like" button. 

Social networks, public spaces?

In a context where the removal of Donald Trump's most outrageous tweets is being demanded loud and clear by a growing number of politicians and observers, Twitter's decision to report these tweets counterbalances a constant refusal to intervene until this day. If this decision is a turning point, it is nonetheless a late development. Twitter's caution on this point can be explained in light of the very extensive protection granted, in American law, to the freedom of expression guaranteed by the First Amendment to the American Constitution, even if this text is primarily intended to protect citizens from attacks by the State. On the basis of this text, the American courts tend, in fact, to see the accounts kept by public figures on social networks - or more precisely in the discussion spaces that these accounts allow - public spaces (" public fora "), even if this qualification is the subject of bitter discussions with regard to platforms administered by private actors (see, on this point, the opinion of Judge Brett Kavanaugh in the decision Manhattan Community Access Corp. v. Halleck, which decides that private actors hosting discussion spaces open to the public are free to moderate them at their discretion).

Regarding the specific case of social networks, the Supreme Court ruled, in 2017, that access to social networks, in this case Facebook, constitutes a constitutional right for American citizens (Packingham v. North Carolina), who must be able to access places, even virtual ones, where they can get information and discuss. This decision underlined that social networks today provide the most powerful mechanisms available to citizens to make their voices heard (" the most powerful mechanisms available to a private citizen to make is or her voice heard"). Judge Anthony Kennedy wrote in particular that "a fundamental principle of the First Amendment is that everyone should have access to places where they can speak and listen, and then, after reflection, speak and listen again" (" a fundamental First Amendment Principle is that all persons have access to places where they can speak an listen and then, after reflection, speak and listen once more "). 

In addition, the protection afforded by the First Amendment does not allow public officials to prevent citizens, by "blocking" them, from accessing the content they post on social networks. Donald Trump himself has paid the price for this jurisprudence about Internet users he had "blocked" on Twitter. The federal courts, in this case, ruled in 2019 that Donald Trump, insofar as he speaks on Twitter as President of the United States, cannot exclude American users without violating their right of access to a public space protected by the First Amendment (Knight First Amendment Inst. at Columbia Univ. v. trump). We will note in this regard the eloquent statement appearing in the judgment of the Court of Appeal of the Second Circuit which decided this case: “if the First Amendment means anything, it is that the best answer to remarks that the 'one disapproves on matters of public interest is more talk, not less ”(“If the First Amendment means anything, it means that the best response to disfavored speech on matters of public concern is more speech, not less”). Following this decision, Trump "unblocked" the plaintiffs ... without however giving up "blocking" others. The affair is reminiscent of the complaint of a French journalist "blocked" by the President of the National Assembly, Richard Ferrand, on a different register however since filed in criminal proceedings, and subsequently closed by the Public Prosecutor's Office for lack of an appropriate offense. 

In any case, it is understandable, in such a context, that Trump vigorously invokes this freedom of expression which founded the ban on "blocking" users to refuse any reporting or censorship of his tweets. The reference to the notion of public space also explains Twitter's strategy, which constantly invokes the "public interest" of tweets by politicians, especially when they are prominent. The incentive to intervene is, for the social network, all the less strong as federal legislation exempts platforms from all responsibility for comments made online by their users (Section 230, Communications Decency Act, Title 47 of the United States Code). 

The "clarification" of Section 230 of the Communications Decency Act

It is, paradoxically or not, this Section 230 of Communications Decency Act -or, to all less, his interpretation- qtrump seeks precisely to edit now, as a retaliatory measure against Twitter. Before the adoption of Communications Decency Act in 1996, the status of the hosts was not perfectly clear. It was believed that they enjoyed immunity for content posted by third parties on their platforms, but were fully responsible for such content as long as it intervened in one way or another. The Communications Decency Act of 1996 guaranteed them a very broad immunity, including when they practice moderation. Under the terms of the text, the platforms can in no way be considered as publishers of the content published there by third parties: their liability for this content is excluded. In addition, platforms that engage in moderation benefit from "Good Samaritan" immunity: they cannot be held liable for any action amounting to removing or restricting access to objectionable content ("obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionablee ”material), as long as the decision is taken in good faith.

THE "Executive order" (" EExecutive Order"), Which could be translated as" presidential decree ", signed by Trump on May 28, 2020 promotes a restrictive interpretation of the immunity of platforms, which, according to the text, should not extend to those who engage to "editorial activities". The text emphasizes in particular that immunity cannot benefit platforms which do not act in good faith and intervene in order to muzzle the points of view with which they disagree (" online platforms that -far from acting "in good faith" to remove objectionable content - instead engage in deceptive or pretextual actions (often contrary to their stated terms of service) to stifle viewpoints with which they disagree"). Platforms choosing to moderate content without being "in good faith" should therefore lose their immunity and be liable as any publisher would be. To this end, the decree enjoins the Federal Communications Commission to “clarify” the text of section 230 by preparing regulations restricting the scope of application of immunity and specifying the conditions under which the platform is deemed to act “in good faith”. The decree also orders the Federal Trade Commission to act against platforms which adopt “deceptive” or unfair practices in the context of moderation of content or act in contradiction with their conditions of use. Trump gives, on this last point, satisfaction to the conservatives who complain about the biases of the platforms towards them and ask, long-standing, the consecration, in section 230, of a principle of neutrality in the moderation of content. The " Executive Orderr »Specifies that the Federal Trade Commission and Department of Justice all complaints received will be communicated by the tool created in May 2019 by the White House (Tech Bias Reporting tool) in order to collect complaints from Internet users who consider themselves unfairly censored on the networks.

Whatever one thinks about it, and even if an amendment to section 230 - on which the Department of Justice board for several months - seems essential to many specialists, the method employed by the American President hardly convinces. Donald Trump intends, in fact, to modify, by a simple " EExecutive Order“, The content of a federal law passed in Congress in 1996 and applied since then by the American courts, which have developed a solid case law. The text therefore poses several constitutional difficulties: not only the amendment of this law is in principle up to Congress, but its compatibility with the First Amendment can be discussed, especially since it protects (also) the rights of platforms, as private companies, to set their own conditions of use and to enforce them. One can, for this reason, doubt that the "ExeCutive Order“, Which will inevitably be contested, will truly produce its effects. Even assuming that this is the case, this text could lead platforms now legally responsible to practice particularly strict moderation, by purely and simply removing the content that could engage their responsibility, without bothering to check them.. Such severe moderation would be the opposite of what President Trump is seeking, clearly in favor of a die-hard conception of freedom of expression on social networks. In the end, even though Trump wishes to deny any right of moderation to platforms by relying on the notion of public space, he chooses at the same time to qualify them as publishers, further justifying their intervention on content.

If this battle, uniquely American, has only just begun, it seems increasingly difficult for social networks to adopt a posture of pure abstention by refusing any intervention in the face of inaccurate, defamatory or simply dangerous remarks. However, their room for maneuver is narrow. Even in France, where the legislation already includes more restrictions on freedom of expression and where platforms are encouraged to practice moderation, a possible report, via Twitter, of the words of a politician or of a public figure (like, for example, the now famous professor Raoult) could generate very virulent reactions. The new strategy initiated by Twitter presupposes, moreover, adopting absolute transparency and an unassailable method for determining the content to be reported, which has not yet been acquired (see, in this regard, the section “ How will we identify these Tweets? "). The difficulty is so great that it probably explains why Mark Zuckerberg - who has long argued that it is not for platforms to be the "Arbiters of truth" as part of the public debate does not wish to indulge in fact-checking comments from the rulers. This disagreement illustrates all the ambiguity of what social networks have become today: public places in which democratic debate takes place, owned and administered by private companies.