Jonathan Turley
Long trumpeted as our defining right, free speech in the United States seems to be dangling on social media. The decision of Twitter to slap warnings on tweets by President Trump marked a major escalation of speech controls on the internet, a move that has been demanded by Democrats. While the company said Trump did not violate its rules, it still intervened between him and his followers to add its own view of the truth on a political controversy.
The action taken against Trump on his mail voting tweets is the realization of a fear of free speech advocates. People sign up for updates from Trump, not Twitter, but the company decided to force his 80 million followers to hear its own position on this issue. Imagine if a telephone company listened for errant political statements on calls in order to flag its concerns about a conversation.
Unfortunately, Trump added his own threat to free speech by pledging to "shut down" Twitter and others if they do not change their position. It is akin to denouncing those without fire detectors by threatening to burn down their homes. His new executive order would seek the elimination of key liability protections for social media companies while calling for federal investigations into political bias. Without legislative support, such a crackdown on these companies is unlikely to succeed. However, Congress has been angling to curtail internet free speech for years.
Curtailing free speech has become an article of faith in many circles. News host Don Lemon told Twitter chief executive officer Jack Dorsey to "stop hiding behind the First Amendment" and censor Trump. Democratic leaders like Representative Adam Schiff have written to social media companies to demand greater regulation and removal of statements on platforms, something many of us have warned is a potential abuse of free speech. Former Vice President Joe Biden added his voice to the call this week for Twitter to remove any statements deemed to be false.
The choice to target a political statement on Twitter was no accident. It is precisely the type of statement that Democrats have been targeting for years with threats of a federal takeover. In one hearing, Senator Mark Warner boomed that "the era of the Wild West in social media is coming to an end." That intolerable Wild West is the existence of an area of relatively unregulated free speech. Indeed, like the pioneers of democracy, many people have gone to social media to speak their minds openly.
That frontier of free speech may now be vanishing. On the mail voting tweets, Twitter dispensed with any discernible standard to intervene in political exchanges. And it is not alone. Speech regulation now will actually go back in time to retroactively mark views as unreliable: The webpage archive service Wayback Machine says it will label deleted articles as "disinformation" when faced with views it deems false or misleading. That's right - there will not only be censorship and labeling but retroactive action against past thoughts.
The mail voting tweets are based on a widespread view of the dangers of using such a system on a large-scale basis. Indeed, those concerns were heightened when multiple ballots for a June 2 primary reportedly were mailed mistakenly to some voters in Pittsburgh and Allegheny County in the battleground state of Pennsylvania. (Officials there insist that barcoding will prevent anyone from voting more than once.)
Trump's insistence that mail voting is "substantially fraudulent" is unsupported, and there are good-faith arguments that mail voting will increase participation in the election. Yet, it is equally unsupported to suggest there is no real danger in sending ballots to every home to be filled out without supervision or confirmation. It is hard to see how we would even know about the incidence of voter fraud from mail voting. Many households would receive multiple ballots for voters, including some voters who may be elderly or uninterested; clearly, third parties could exercise their votes. The only reliable way to confirm voter fraud by mail would be to do what no state can do: Demand voters confirm who they voted for.
The danger of stolen mail ballots probably is less pronounced, since such criminal acts likely would produce traceable multiple votes if the victims sought to vote in person or by other means. Then there are the concerns over "ballot harvesting," in which a third party can collect hundreds or thousands of such ballots; some Democrats are pushing to make ballot harvesting legal across the country.
If races in states like Pennsylvania prove as close as expected, the substantial increase in these mail ballots is likely to produce immediate challenges. We have never relied to such an extent on mail balloting with at least 40 million people now able to vote by mail. The logistical or criminal interruptions could undermine our faith in the election results. The prospect of incorporating this novel system is unnerving. There is a relatively short window - as we saw in the Bush-Gore debacle of 2000 - between Election Day and the required certification of the election before the January inauguration. The reliance on mail votes (and, particularly, "harvested" ballots) could delay the results and shorten the period for challenges.
Once again, I do not believe the sweeping claims of fraud anymore than I believe the sweeping dismissal of such concerns. The point is only that this is a legitimate matter for public debate. Yet Twitter just labeled one side of that debate to be presumptively false. That is why this concern is not about free elections but free speech. Twitter's warning tells Trump followers to "get the facts about mail voting." When you click the added link, it takes you to a page with the heading, "Trump makes unsubstantiated claim that mail ballots will lead to voter fraud."
The question is whether internet sites will label other views as unreliable or unproven. For example, will Wayback Machine label thousands of false tweets from Democrat members claiming clear evidence of Russian collusion with the Trump campaign in 2016? How about the thousands of tweets on the discredited Steele Dossier? We've now learned that a long line of Obama officials testified behind closed doors that they never saw evidence of collusion. Seemingly, Twitter's standard would mean intervening in Schiff's own representations that he had "ample evidence" of collusion. Will Schiff's followers now be warned to "get the facts on Russian collusion"?
Trump's call for eliminating protections under Section 230 of the Federal Communications Act is precisely the type of retaliation that some Democrats have threatened in the past. Indeed, Trump's action could produce an involuntary muscular response from Democrats in opposing the very crackdown that they previously threatened. They may also defend the free speech rights of Twitter despite long opposing the recognition of free speech rights for companies in cases like Citizens United.
There is an alternative. These companies could return to being neutral forums for free speech and Trump can return to using rather than regulating social media. Otherwise, before they seek to engage their friends and followers on social media, citizens should first "get the facts on free speech" before it dies to the cheerful chirping of a tweet.
• Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University.
The Hill