As you probably saw eight decades days ago, Trump signed his 161st Executive Order (EO) in direct response to Twitter’s fact-checking of his tweets.
We don’t like having to talk about Trump—not our vibe if we can help it—but since we’re already here, let’s call it like we see it. Trump didn’t like being roadblocked on his platform of choice—BY his platform of choice, no less—so he threw a Trumptrum. He’s the billionth person to be butthurt on Twitter, but the first among them to have presidential powers. (In fairness: any of those billion would be tempted to use them.)
Does this Trump headline seem, in spirit, any different from the others? To us, not really. But we’re only discussing this because, if he targets social-media platforms, he targets the main advertising pipelines for digital business. While we were tempted to blow this story off, there’s an unsettling amount of historical precedent for lunacy becoming law—particularly by executive order, from both sides of the aisle—so we had two questions that needed answering.
And they are…
First question: should we (marketers) be worried about a social-media crackdown?
Short answer: nah.
For the longer version, allow us to introduce Laurence Tribe, professor of constitutional law at Harvard, who had this say in summary:
You can read Tribe’s entire Twitter thread here for full details. Way more broadly: remember that EOs have limits. Frankly, companies as big as Twitter and Facebook can afford to “ignore” certain threats like this (to the extent that the legal system will pull any teeth before the EO can bite down on anyone). Hence, Twitter doubled down after Trump’s order.
Having covered that, the second question: On what grounds is Trump issuing this executive order? Does he have any legal grounds at all?
Trump himself argued, as he signed the Executive Order, that:
“The choices that Twitter makes when it chooses to suppress, edit, blacklist, shadow, ban are editorial decisions, pure and simple. In those moments, Twitter ceases to be a neutral public platform, and they become an editor with a viewpoint. One egregious example is when they try to silence views that they disagree with by selectively applying a fact check.”
Here’s the thing: the First Amendment guarantees freedom of religion, speech, press, petition, and assembly—but specifically, freedom from government restriction of those things. Twitter is not part of the government; it is an independent company. Specifically, it is a service provider whose Services are bound by the Terms to which all active users have necessarily agreed.
Donald Trump ignored the ToS just like us—but he also agreed to the ToS just like us. When he posts on Twitter, he is playing by Twitter’s rules—just like us. Twitter can do whatever the **** it wants with his (or anyone’s) tweets, within a pretty wide range, simply because it’s their house. The First Amendment doesn’t protect anyone’s “right” to use a privately-run service against its own will, much the same way the Second Amendment doesn’t protect anyone’s “right” to rob a bank at gunpoint.
So how’d the social giants respond?
Jack Don’t Crack; Zuck Buckles
In response to the executive order, Twitter flipped the (blue) bird, ramping up its flagging of content that “promotes or glorifies violence” including tweets by Trump and U.S. Representative Matt Gaetz.
Over at the other blue, CEO Mark Zuckerberg scrambled to distance himself from Dorsey, defending his hands-off approach to moderating content. Zuck has previously come under fire for (what some see as) a semi-cozy relationship with the president, including private dinners and 1-on-1 phone conversations.