[EL] Twitter EO

[Mark Scarberry]

If I understand the matter correctly, the real questions here are

(1) Continued protection of social media companies from libel actions, if
the company does not edit materials that users post. If the company takes a
role in deciding what may be posted, may the company be treated as having
published the materials that it allows to be posted? For example, not to
say whether this does or doesn't happen, a social media company may put
warning labels on posts or block or limit access to materials that are
contrary to its political views,  as Dennis Prager has alleged.

(2)  Possible liability for allegedly unfair acts and practices under which
such companies violate their terms of service, by, among other actions,
flagging, blocking, or limiting access to posts or materials based on the
political viewpoint that is expressed.

(3) Possible liability for violation of privacy if such companies keep
lists of users' use of the services and treat users differently based on
those lists .

I've argued strongly that Facebook and Twitter can publish or refuse to
publish any material as they choose and should not be treated as public
utilities, or as state actors under the equivalent of "company town"
principles. It's an interesting question whether they could be treated as a
kind of public forum under cases like Pruneyard; I don't think so. All of
this will have been discussed at length elsewhere.

That does not necessarily immunize them from ordinary libel laws or from
being held responsible for breach of contract or from being regulated with
regard to privacy policies.  Fact-checking delegated to groups on the left
such as the SPLC (which currently, despite its history as a truly heroic
organization, sometimes seems to treat disagreements with its policy
positions as at least a substantial factor in designating a group as a hate
group) or similar groups on the right could call into question the immunity
noted under point (1). But it would be problematic to treat social media
companies differently simply because they block content on political bases.
I think they are entitled to treat as objectionable materials that they
disagree with politically, just as they properly might consider other
materials to be objectionable as permitted by current law, and still retain
whatever protection the law otherwise would provide.

Treating social media companies as publishers of all materials posted on
them, for libel law purposes, would shut them down, I think. Lots of
libelous material is posted about persons who are not public figures and
under circumstances that would not provide protection against liability for
negligent libel. A jury might find a social media company to have
negligently published such libelous material.

None of this is original, of course, and others will have analyzed these
points more carefully and accurately.

Mark


[image: Pepperdine wordmark]*Caruso School of Law*

*Mark S. Scarberry*

*Professor of Lawmark.scarberry at pepperdine.edu
<mark.scarberry at pepperdine.edu>*
Personal: mark.scarberry at gmail.com




On Thu, May 28, 2020 at 11:04 AM Sean Parnell <
sean at impactpolicymanagement.com> wrote:

> Makes sense to me.
>
>
>
> *From:* Nate Persily <npersily at law.stanford.edu>
> *Sent:* Thursday, May 28, 2020 1:55 PM
> *To:* Sean Parnell <sean at impactpolicymanagement.com>
> *Cc:* Rick Hasen <rhasen at law.uci.edu>; Election Law Listserv <
> law-election at uci.edu>
> *Subject:* Re: [EL] Twitter EO
>
>
>
> Apologies for being obtuse:
>
>   My point about Citizens United was that if you believe that corporations
> have an unfettered constitutional right to spend unlimited amounts on
> campaign advertising, I would think that right would also extend to
> publicizing factchecks about politicians, as well, without running the risk
> of legal sanction.
>
> ----------------
>
> Nate Persily
>
> James B. McClatchy Professor of Law
> Stanford Law School
> 559 Nathan Abbott Way
> Stanford, CA 94305-8610
> (917) 570-3223
> npersily at stanford.edu
>
> www.persily.com
>
>
>
>
>
> On Thu, May 28, 2020 at 6:14 AM Sean Parnell <
> sean at impactpolicymanagement.com> wrote:
>
> Not entirely sure why the views of defenders of *Citizens United* are
> sought, but here goes (with the acknowledgement that, not possessing a law
> degree, my views should probably not be mistaken as quality legal
> analysis): it’s stupid. The one redeeming quality I find in the EO is that
> it is not nearly so badly/incoherently written as the EO from a few years
> back “repealing” the so-called Johnson Amendment, so props for that.
>
>
>
> Sean Parnell
>
>
>
> *From:* Law-election <law-election-bounces at department-lists.uci.edu> *On
> Behalf Of *Nate Persily
> *Sent:* Thursday, May 28, 2020 12:38 AM
> *To:* Rick Hasen <rhasen at law.uci.edu>
> *Cc:* Election Law Listserv <law-election at uci.edu>
> *Subject:* [EL] Twitter EO
>
>
>
> Attached is the draft of the Executive Order regarding removal of CDA 230
> liability for Twitter and other internet platforms as well as
> encouragement of investigations of the Silicon Valley platforms.  Gotta
> say, this is truly breathtaking.   Eager to hear reactions from defenders
> of Citizens United on this.
>
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