As I understand it, the 1st amendment is to protect 'free speech' from government censorship, not platform censorship. Is this not correct? In others words, the first amendment 'leashes' government.

UPDATE: a basic constitutional doctrine called State Action. It’s the notion that the Constitution only limits things the government does, not things that private individuals do. (and presumably social media, a private corporation)

If the above presumptions are correct, why wouldn't a commercial platform (Twitter, Facebook, social media, etc.) be able to remove or annotate content as it sees fit (i.e. Terms of Service or otherwise)? IANAL and do not understand the purpose of the document

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    That's the draft, the final version is here: whitehouse.gov/presidential-actions/…
    – Lag
    May 29 '20 at 9:17
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    It’s entirely section 230 - they can edit content as they want (they have freedom of speech of course) but at that point they become an editor (and responsible for all content). They can’t afford to edit everything, so they possibly can’t get away with editing anything.
    – Tim
    May 29 '20 at 12:09
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    The current structure and phrasing of the question could use some clean-up. May 29 '20 at 22:21
  • Regarding "state action" There are two things that an individual can do that break the US constitution: Enslave another human being, or transport alcohol into a state or territory in violation of the laws thereof.
    – James K
    May 30 '20 at 0:07
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    Legally they can. But big media companies see benefit in pretending they are non-biased arbiters of truth, so rather than arbitrarily editing content they typically hide behind algorithms and terms of service to appear fair. May 31 '20 at 21:14

The essence of the order's argument is that in editing user generated content outside of the provisions in one section of the Communications Decency Act (CDA), the platform necessarily excludes itself from the protections afforded by another section of the CDA.

The EFF says:

... Even though neither the statute nor court opinions that interpret it mush these two Section 230 provisions together, the order asks the Federal Communications Commission to start a rulemaking and consider linking the two provision's liability shields. The order asks the FCC to consider whether a finding that a platform failed to act in "good faith" under subsection (c)(2) also disqualifies the platform from claiming immunity under section (c)(1).

In short, the order tasks government agencies with defining “good faith” and eventually deciding whether any platform’s decision to edit, remove, or otherwise moderate user-generated content meets it, upon pain of losing access to all of Section 230's protections. ...

The order also argues that the very popular social media platforms such as Twitter and Facebook are the functional equivalent of the public square, not merely private providers protected by the First Amendment, and therefore should not be able to edit user generated content. The EFF article quotes from a Supreme Court judgment that says "merely hosting speech by others is not a traditional, exclusive public function and does not alone transform private entities into state actors subject to First Amendment constraints."

Recommend the full article: https://www.eff.org/deeplinks/2020/05/trump-executive-order-misreads-key-law-promoting-free-expression-online-and

See also Techdirt's article, The Two Things To Understand About Trump's Executive Order On Social Media: (1) It's A Distraction (2) It's Legally Meaningless.


Eugene Volokh wrote a good explainer with background.

Regarding the social-media-platforms-become-state-actors argument, see this recent D.C. Circuit judgment on appeal (Freedom Watch v Google etc):

Freedom Watch's First Amendment claim fails because it does not adequately allege that the Platforms can violate the First Amendment. In general, the First Amendment 'prohibits only governmental abridgment of speech.' Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921, 1928 (2019). Freedom Watch contends that, because the Platforms provide an important forum for speech, they are engaged in state action. But, under Halleck, 'a private entity who provides a forum for speech is not transformed by that fact alone into a state actor.' ...

This was a group that alleged Google, Facebook, Twitter and Apple "conspired to suppress conservative political views ... its audience and revenues and succeeded in reducing each". Very similar to Trump's complaints.

And "this idea that Section 230 requires sites to moderate in a neutral fashion has become very popular even though it has no basis in reality or law" - Ken White (aka Popehat) in another good explainer and podcast about this.

  • Comments are not for extended discussion; this conversation has been moved to chat.
    – Dale M
    Jun 1 '20 at 1:22

This is not actually a First Amendment issue; as you correctly state, the First Amendment only limits government actions, not those of private citizens or organizations.

However, companies like Twitter currently enjoy some liability protections that are commonly understood to be based on Section 230 of the Communications Decency Act, that require them to act as free conduits of information posted by their users. If they exercise editorial control over the content, they may lose these protections.

Section 230 says:

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

The distinction between information content provider and interactive computer service is important. If the service provider exercises editorial control, they're generally understood to be the former. As I understand it, the distinction is intended to be analogous to the difference between a publishing company and a printing service. For example, a newspaper publisher can be sued for libel, but the company they contract with to print the newspaper would not be considered a party in the lawsuit.

While the First Amendment does not directly apply to the private sector, it does express the importance that our society places in free and open discourse. While there may not be any laws that prohibit Twitter from censoring its content, such actions may impact its effectiveness as a platform for this discussion. So even though they're not actually doing anything illegal, they're violating the spirit of Free Speech.

The Twitter Terms of Service says:

We reserve the right to remove Content that violates the User Agreement, including for example, copyright or trademark violations or other intellectual property misappropriation, impersonation, unlawful conduct, or harassment.

Notice that it says nothing about labeling content based on fact checking or political views.

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    "If they exercise editorial control over the content, they may lose these protections." - With the huge caveat that "No provider or user of an interactive computer service shall be held liable on account of... any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected".
    – D M
    May 30 '20 at 6:10
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    "The distinction between information content provider and interactive computer service is important. If the service provider exercises editorial control, they're generally understood to be the former" - does law say that or have that effect?
    – Lag
    May 30 '20 at 8:16
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    @DM, the "good faith" thing is the key here. Those whose postings are restricted will argue that editorial changes were made for a political agenda, that is in bad faith.
    – o.m.
    May 30 '20 at 9:01
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    @Lag I'm not a legal scholar, I don't know where to look for the legal distinction.
    – Barmar
    May 30 '20 at 18:51
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    Given that Twitter isn't preventing the President from tweeting anything he decides to please, and isn't changing any of it, I don't see how Twitter is acting as an editor.
    – RonJohn
    May 31 '20 at 6:05

The "purpose of the document" is pure politics; in a legal sense, it will go nowhere, unless it - through what will be a long court and/or legislative process - somehow forces a legislative change in Section 230 of the Communications Decency Act in that publishers would be responsible for the public's speech on their platform.

Or, somehow, there is a successful effort to amend the 1st Amendment that states Congress shall make no law... abridging the freedom of speech, or of the press...

...why wouldn't a commercial platform (Twitter, Facebook, social media, etc.) be able to remove or annotate content as it sees fit...

They already do. Twitter is a private company; they can legally write and enforce their TOS. See The Twitter Rules. Their legal ability to do so is what has prompted the political threat to change the law or the Constitution.

  • Is the threat to change Section 230 CDA (platform's immunity from content liability) supposed to bring Twitter to heel? Again IANAL or a politician
    – gatorback
    May 29 '20 at 1:00
  • You have to ask Trump and his lawyers about that. May 29 '20 at 1:11
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    Without the Section 230 safe harbor, Twitter's current business model is absolutely unsustainable. The President may fail in his attempt to take that safe harbor away, and probably will; but if he succeeded, Twitter would no longer be a viable business.
    – tbrookside
    May 29 '20 at 14:55
  • @tbrookside The OP isn't asking about the sustainability of Twitter's business model. May 29 '20 at 14:57
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    Ironically, (IANAL) taking away Twitter's protection would compel Twitter to censor a lot more of Trump's speech.
    – user253751
    May 30 '20 at 18:08

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