The First Amendment to the United States Constitution says:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.[i]
People from all side of the political spectrum rely on those words to let them express their opinions. The press relies on them to let them report on the news without government interference.
Two incidents happened in the past few days that highlight the First Amendment.
First, following the tragic events in Minneapolis there were protests and violence outside a police station. CNN reporter Oscar Jimenez and his producer and cameraman were reporting live on air from the site. Mr. Jimenez is African American.
Around 5:00 am local time the three were arrested by local police while reporting live on the air.[ii] Mr. Jimenez clearly identified himself as a CNN reporter and what appear to be his press credentials are seen hanging from his belt. The crew offered to move to wherever the police requested but were simply arrested.[iii] This happened live on air as the hosts at CNN headquarters looked on in astonishment.
A few hours later the three were released from custody.
This behavior by the police is exactly the sort of thing the First Amendment was designed to prevent. It doesn’t matter that they were released without charge and were only inconvenienced for a few hours. They were prevented from reporting on a significant event. This is the sort of intimidation that is used to prevent the press from reporting on things.
Christiane Amanpour, CNN’s chief international anchor, wrote on Twitter that “arresting journalists is the kind of thing that happens in dictatorships and authoritarian regimes. We live in a democracy.”[iv]
Second, President Trump made a direct attack on free speech while claiming he was defending it. On May 26, 2020, President Trump tweeted that mail in ballots are easy targets for fraud and will lead to a rigged election.[v] Twitter exercised its oversight by adding warning labels to the tweet stating that his statements were unsubstantiated and then linked to reputable sources.
Twitter is a private company. It is not subject to the First Amendment. The First Amendment only protects people from governmental interference. A public person or company can set any rules they want regarding speech. Twitter has rules about what you can say on its platform. Twitter determined that this tweet was misleading.[vi] It didn’t block the tweet and it didn’t remove the tweet, it just added accurate information to the tweet.
Trump responded with a threat to remove protections that are provided to platforms such as Twitter in section 230 of the Communications Decency Act. That section provides "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” [vii] That means that the platform is not personally liable for what people say on it. Twitter can’t be held to account for the statements made by its users. So if person A libels person B on Twitter, B cannot sue Twitter. They can still sue A, but Twitter is not at fault for hosting the statement. Think of it like an old fashioned bulletin board. You can stick up a piece of paper libeling A. A cannot sue the bulletin board.
If that protection were to be removed, sites such as Twitter would need to police the posts and fact check each and every one before allowing it to go public. It would strangle the expression of speech. Private companies can do that of course, but with the protections of section 230, they don’t have to.
Trump took offense at Twitter fact checking him. This is first time they have done so, despite the myriad of false statements and claims he has made over the years. He signed an Executive Order directing the FCC to generate new rules clarifying what would be a violation of section 230’s good faith principals.[viii]
The ironic part is that such rules would likely backfire for Trump. He relies so heavily on Twitter to get his message out, if they were forced to review his tweets, most of them would get some sort of flag or warning.
Once again, this is an example of the government threatening free speech. It is a convoluted path and I don’t think Trump thought it through to its logical conclusion, but I believe it could violate the First Amendment.
Update. After I wrote all that, the Trump – Twitter war has escalated with Twitter actually hiding a Trump tweet. It can be read, but the user must click on a button to see it.[ix][x] With regard to the unrest in Minneapolis he said in part, “Any difficulty and we will assume control but, when the looting starts, the shooting starts.”[xi] Twitter blocked the tweet with a notice that it violated the platform’s rules against glorifying violence. The same tweet was later posted by the official White House Twitter account and also blocked by Twitter.[xii] Since then he has tweeted several more times attacking Twitter. The post remains public on Facebook.[xiii]
[i] https://www.law.cornell.edu/constitution/first_amendment
[ii] https://www.nytimes.com/2020/05/29/business/media/cnn-reporter-arrested-omar-jimenez.html
[iii] https://www.cnn.com/us/live-news/george-floyd-protest-updates-05-28-20/h_4ed08403663fa4ed3518221d0f2a1552
[iv] https://twitter.com/camanpour/status/1266336559751667712
[v] https://twitter.com/realDonaldTrump/status/1265255835124539392
[vi] https://twitter.com/TwitterSafety/status/1265838823663075341?s=20
[vii] https://www.eff.org/issues/cda230
[viii] https://www.cnn.com/2020/05/28/politics/trump-twitter-social-media-executive-order/index.html
[ix] https://www.bbc.com/news/technology-52846679
[x] https://www.nytimes.com/2020/05/29/technology/trump-twitter-minneapolis-george-floyd.html
[xi] https://twitter.com/realDonaldTrump/status/1266231100780744704?s=20
[xii] https://twitter.com/WhiteHouse/status/1266342941649506304?s=20
[xiii] https://www.facebook.com/DonaldTrump/posts/10164767134275725
The author[s] is solely responsible for this blog submission. It does not represent the position of the New York State Bar Association or its Committee.