Trump v. Twitter: Social Media, Free Speech and the Regulation of Public Information

Author:   Robert Kirunda
May 30, 2020
The senseless and unfortunate murder of 46 year old George Floyd in the United States has sparked discussion over the role of social media behemoths in the regulation of free speech. The live video of this tragic incident went viral and sparked protests in many cities across the United States, especially in Minneapolis. On May 29th, 2020, President Donald Trump sent out a tweet that offended Twitter’s rules. Citing its rules, Twitter attached a disclaimer to this tweet, effectively notifying the world that the Tweet offended Twitter’s rules against glorifying violence. The Tweet was not taken down and is still accessible, but is subject to a number of restrictions. Below is the tweet.

                                                                                                                                                              
 
This is the second time in one week that Twitter has taken action against Trump’s tweets. It previously flagged two of Trumps tweets about mail-in voting in California, saying Trump’s tweets were misleading about elections and then appended fact-check labels to them. Trump responded to the flags by issuing an executive order on Thursday targeting social media platforms like Twitter and Facebook. He said that these firms have “unchecked power” to censure and edit the views of users, and the order allows for new regulations so that social media companies “that engage in censoring or any political conduct will not be able to keep their liability shield.” Twitter remains unphased and has continued to apply its rules strictly against the President’s tweets.
 
Citing its Public Interest Exception, Twitter explains how it defines and determines the public interest. Some tweets that violate Twitter’s rules are not taken down. Rather, they are left accessible because their content needs to be accessed in the public interest. Content is in the public interest if it directly contributes to understanding or discussion of a matter of public concern. The content must meet a four part criteria in order for it to meet this exception. It should violate one or more of Twitter’s rules; it should have been posted by a verified account; the account should have more than 100,000 followers; and the account should represent the views of a current or potential member of a local, state, national or a supra-national governmental or legislative body - including current holders of an elected or appointed leadership position in government.
 
Twitter also explains how it balances the risk of harm against the public interest. It acknowledges the desire for these decisions to be clear cut yes/no binaries as opposed to the possibilities they provide. However, the company is quick to add that “this is new territory for everyone - a service being used by world leaders to communicate directly to their constituents or other leaders, and at times, announce policy - and every decision we make sets a new precedent. We believe it is critical that we evaluate every case individually and, in a way, that accounts for context and history.
 
Setting the parameters on free speech has always been the preserve of states across the world. Through its Public Interest Exception, Twitter as a nonstate actor has positioned itself to determine the parameters of free speech - at least on its platform. The exception has a legitimate rationale but the premises of its legality are yet to be tested.
 
By creating the four part test above, Twitter has effectively determined that the public has an interest in knowing information that should otherwise not be in the public domain in the first place. This may have historical justification but essentially opens the door to questions of equal treatment. It would be interesting to know why Twitter sets the threshold of followers at 100,000 and not more or less. Certainly, the argument can be made that there is just as much a public interest in the content posted by a public figure with 95,000 followers as there would be in the former. It remains to be seen whether this exception will pass muster when tested against the constitutional rules on freedom of expression and other human rights recognized in the United States and across the world. At the very basic level, courts will have to settle the question whether the nature and content of the Public Interest Exception amounts to censorship or not, as there are views supporting either side of the argument.
 
Under Section 230 of the Communications Decency Act, website operators unlike traditional publishers cannot generally be held responsible for content posted by users.[1] The sites are also protected from law suits if they block posts deemed obscene, violent “or otherwise objectionable, whether or not such material is constitutionally protected.” (Emphasis) The Executive Order posits that this immunity should no longer apply if a social network edits posts, such as by adding a warning or a label. The argument being that in such case, the social media platform has decided to exercise an editorial role like a publisher. The Executive Order also calls for the Federal Communications Commission (FCC) to spell out what type of content blocking will be considered deceptive or inconsistent with a service provider’s terms and conditions. Social networks have condemned the order, calling it a reactionary and politicized approach to a landmark law that protects innovation, freedom of expression and democratic values.[2]
 
The United States Constitution under its First Amendment protects free speech. Congress is barred from making any law that abridges the freedom of speech or of the press. Portions of the CDA have been challenged in court by civil rights groups and free-speech activists. In Reno v. ACLU for example, the Supreme Court found that the provisions regarding indecent and patently offensive materials violated the freedom of speech protected by the First Amendment and were removed from the CDA.[3] The First Amendment protections regarding the right to speak vary based on the speaker’s chosen forum.[4] However, the ACLU decision is significant because the Court established that speech on the internet is entitled to the same high degree of First Amendment protection extended to print media as opposed to the reduced level given to broadcast media.
 
By invoking its Public Interest Exception within wording so broad as to include elected officials outside the United States and within other Supranational organizations, Twitter has set for itself a much higher legal standard. Citizens of other countries like Uganda have a legitimate expectation that Twitter will treat their heads of state as they have treated President Trump. Trump illustrated one way in which the extraterritorial issues could arise when he tweeted thus:
 





In Uganda, as in many other countries, internet speech is regulated in the general terms of the right to free speech. There are no specific provisions covering the nuanced issues that arise. The Constitution provides for freedom of speech, expression, as well as the right to access information.[5] Several laws including the Press and Journalist Act 2000, sections of the Penal Code Act and the Anti-Terrorism Act 2002 contain certain limitations on these rights. However, the legislation usually applied to deal with social media content deemed illegal is the Computer Misuse Act of 2011, which deals with liability for offensive communication. Viewing social media as an increasing threat, the Uganda Communications Commission in 2017 published a notice urging the public against irresponsible use of communication platforms, and warning administrators against abetting such conduct. Despite all these measures, Uganda still does not yet have in place a provision similar to section 230 of the CDA, or any legislation that deals with the powers and limitations of social media companies in regulating content.
 
Noting that there is no intention to block (and arguably regulate) social media platforms, the Ugandan President has used his twitter account to threaten stern action against “criminals abusing social media.” But in the absence of a law that properly defines what constitutes “abuse of social media” platforms, the President’s tweet sits in legal limbo. This is especially so because the offense of “offensive communication” under the Computer Misuse Act is the subject of pending constitutional litigation.


 
In the recent decision of the High Court of Uganda in Seguya Hillary Innocent Taylor (Acting Through His Recognised Agent Male H. Mabirizi v Attorney General of Uganda, Miscellaneous Cause No. 261 of 2019 [2020] UGHCCD 105 (Judgement of 20th May 2020), the court held that President Museveni and other public figures, notably the Chief Government Spokesman and an Assistant Inspector General of Police have the right to block followers on their twitter handles. Justice Bashaija also ruled that there is nothing illegal, or nothing which precludes a public official from using his private Twitter handle to comment on an issue of public concern, and that in itself would not transform a private Twitter handle into a public one.
 
The High Court distinguished the US decision in Knight First Amendment Institute at Columbia University and & O’rs vs. Donald J. Trump President of the United States & 2 O'rs, Appeal from US District Court for Southern District of New York No.17 Civ. 5203 (NRB) July 2019 in which the Court of Appeal upheld the decision that President Donald Trump violated the rights of some citizens when he blocked the responses of those he didn’t like on his Twitter handle. According to the court, this precedent was inapplicable partly because it was decided on the basis of several pieces of US legislation including the First Amendment, and the fact that the case was one of constitutional interpretation, while Seguya was one of constitutional enforcement. It remains to be seen how Uganda’s Constitutional Court will treat these questions when the time comes.
 
Therefore, in providing for the accounts of supra-governmental bodies or office holders in its guidelines and policies, Twitter has assumed supra-national obligation to citizens of the world on its platform to censor offensive content. However, some countries like Uganda have no supportive legislation.
 
It remains to be seen whether other social media behemoths will follow Twitter’s lead in dealing with such complex contemporary challenges. At its core, Twitter justifies its position by stipulating that they are not arbitrators of truth but when faced with potentially damaging information, they will provide links to opposing information and let the readers and viewers decide. YouTube on the other hand, will remove what they deem as fake news or harmful content, even when it is generated by users and forms part of their sources of livelihood. Medium will post a disclaimer about information being potentially fake and may commence investigations into the nature of the account and source of information, in some cases even removing the account. Facebook perhaps has the wobbliest position, as the company is struggling to find its actual position on whether or not it will censor political content in any way.
 
Previous interpretations of the rules on social media platforms have been more favourable to the platform than to non US citizens seeking to hold these behemoths accountable outside the United States. But the courts have also recognized the challenges that surround effectiveness of remedies under prevailing domestic legislation (see Fred Muwema v Facebook Ireland Limited).
 
The Cambridge Analytica data scandal of 2016 was only the prologue of the complexity of the role of social media behemoths in defining democratic and constitutional values. The Trump v. Twitter situation of this week is perhaps an indication of just how murky the waters will be in the coming days and months as the United States heads into the November 2020 elections. The legal and regulatory gaps in most of the world will most likely result in unsupported sabotage or compromise of constitutional guarantees. What Twitter is correct about, however, is that “this is new territory for everyone… and every decision [these companies] make sets a new precedent. […] it is critical that [they] evaluate every case individually and, in a way, that accounts for context and history.
may George Floyd rest in peace and may his family get justice as they grieve.

[1] Section 230, Communications Decency Act, 47 U.S.C. 1996.
[2] See above.
[3] Reno v American Civil Liberties Union, 521 U.S.844 (1997)
[4] Perry Education Association v Perry Educators’ Association, 460 U.S 37 (1983)
[5] Constitution of the Republic of Uganda 1995, Article 29 and 41 respectively.