Donald Trump's threat to regulate Twitter likely to hit roadblocks: legal experts
White House says social media executive order is coming, some think it's a case of 'working the refs'
Threatening to shut down Twitter for flagging false content. Claiming he can "override" governors who dare to keep churches closed to congregants. Asserting the "absolute authority" to force states to reopen, even when local leaders say it's too soon.
As he battles the coronavirus pandemic, U.S. President Donald Trump has been claiming extraordinarily sweeping powers that legal scholars say the president simply doesn't have. And he has repeatedly refused to spell out the legal basis for those powers.
"It's not that the president doesn't have a remarkable amount of power to respond to a public health crisis. It's that these are not the powers he has," said Stephen Vladeck, a University of Texas School of Law professor who specializes in constitutional and national security law.
Trump is now on a tear against Twitter after the social media platform, which he uses to speak directly to his more than 80 million followers, slapped fact-check alerts on two of his tweets claiming that mail-in voting is fraudulent.
The president can't unilaterally regulate or close the companies, and any effort would likely require action by Congress. His administration shelved a proposed executive order empowering the Federal Communications Commission to regulate technology companies, citing concerns it wouldn't pass legal muster.
Tech giants "silence conservative voices," Trump claimed on Twitter early Wednesday. "We will strongly regulate, or close them down, before we can ever allow this to happen."
This will be a Big Day for Social Media and FAIRNESS!—@realDonaldTrump
Conservatives may want to see Twitter legally liable
White House strategic communications director Alyssa Farah said Trump would sign an executive order related to social media companies on Thursday.
The call to expand regulation appears to fly in the face of long-held conservative principles on deregulation, but Trump and his allies have long accused the tech giants in liberal-leaning Silicon Valley of targeting conservatives on social media by fact-checking them or removing their posts.
Trump uses Twitter to push out lies and conspiracy theories. <br> <br>His tweets put people in danger and undermine our democracy.<br> <br>Fact checking his tweets is the least they can do.—@RepBarbaraLee
The president's critics, such as Democratic congresswoman Barbara Lee, have scolded the platforms for allowing him to put forth false or misleading information that could confuse voters.
Some Trump allies have questioned whether platforms like Twitter and Facebook should continue to enjoy liability protections as "platforms" under federal law, or be treated more like publishers, which can face lawsuits over content.
The protections have been credited with allowing the unfettered growth of the internet for more than two decades, but now some Trump allies are advocating for social media companies to face more scrutiny.
"Big tech gets a huge handout from the federal government," Republican Sen. Josh Hawley of Missouri told Fox News Channel. "They get this special immunity, this special immunity from suits and from liability that's worth billions of dollars to them every year. Why are they getting subsidized by federal taxpayers to censor conservatives, to censor people critical of China?"
.<a href="https://twitter.com/jack?ref_src=twsrc%5Etfw">@jack</a> a few questions for you below. Bottom line: Why should <a href="https://twitter.com/Twitter?ref_src=twsrc%5Etfw">@twitter</a> continue to get special treatment from government as a mere distributor of other people’s content if you are going to editorialize and comment like a publisher? Shouldn’t you be treated like publisher? <a href="https://t.co/JwDKc3gSyN">pic.twitter.com/JwDKc3gSyN</a>—@HawleyMO
Late Wednesday, Twitter CEO Jack Dorsey tweeted, "We'll continue to point out incorrect or disputed information about elections globally."
Dorsey also said: "This does not make us an 'arbiter of truth.' Our intention is to connect the dots of conflicting statements and show the information in dispute so people can judge for themselves."
Previous executive orders face legal challenges
Twitter's decision to mark Trump's tweets regarding mail-in balloting came as the president was sparking another social media firestorm, continuing to stoke a debunked conspiracy theory accusing MSNBC host Joe Scarborough of killing a former congressional office staffer. Prominent Republicans, including Wyoming congresswoman Liz Cheney and Utah Sen. Mitt Romney, urged Trump to drop the attack, which hasn't been marked with a fact check by the social media company.
Even if he doesn't follow through on threats, Trump's statements still can have consequences as he uses his bully pulpit.
"He's still trying to wield his often outrageous interpretations of the law as a cudgel to bludgeon others," said Joshua Geltzer, founding executive director of the Institute for Constitutional Advocacy and Protection at Georgetown University Law Center.
Many of Trump's previous executive orders, including over border security and immigration, are still working their way through the courts after being challenged.
While Congress could pass legislation further regulating social media platforms, Trump "has no such authority," said former federal judge Michael McConnell, who now directs Stanford Law School's Constitutional Law Center.
"He is just venting," said McConnell.
Democrats control the House of Representatives, and it is unlikely such divisive legislation would be tackled in the heat of an election cycle in which the presidency, all House seats, and about one-third of Senate seats are up for grabs.
"There is absolutely no First Amendment issue with Twitter adding a label to the president's tweets," said Jameel Jaffer, executive director at the Knight First Amendment Institute at Columbia University, who won the case that prevents Trump from banning his critics from his Twitter feed. "The only First Amendment issue here arises from the president's threat to punish Twitter in some way for fact-checking his statements."
But Jack Balkin, a Yale University law professor and First Amendment expert, said that's not Trump's point.
"This is an attempt by the president to, as we used to say in basketball, 'work the refs,'" he said. "He's threatening and cajoling with the idea that these folks in their corporate board rooms will think twice about what they're doing, so they won't touch him."
Many Democrats in Congress would likely agree. They pointed to Trump's frequent Twitter outbursts over Memorial Day weekend at perceived rivals as a way to distract from a heavily criticized federal government response to the coronavirus, which has now claimed over 100,000 American lives.
Matthew Dallek said that just because Trump doesn't have the authority to do most of the things he's threatened, it doesn't mean he won't, for instance, try to sign executive orders taking such action anyway — even if they are later struck down by the courts.
"What has limited Trump previously? Not very much. So I think he will do whatever seems to be in his best interest at any particular moment," said Dallek, a historian at George Washington University's Graduate School of Political Management who specializes in the use of presidential power.
Trump, Dallek said, also could try to abuse his powers to leverage other instruments of government, from the Department of Justice to the IRS, to push for investigations or launch regulatory crackdowns to punish states, cities or companies. Trump also has showed he's willing to exercise powers that modern presidents have largely avoided, including his recent purging of inspectors general.
With files from CBC News