[EL] Twitter EO

Thu May 28 15:02:34 PDT 2020

Here's the actual order
<https://www.whitehouse.gov/presidential-actions/executive-order-preventing-online-censorship/>.
I don't see how it'll have any legal effect.

On Thu, May 28, 2020 at 4:03 PM Nate Persily <npersily at law.stanford.edu>
wrote:

>
> First, I do not understand how one can believe that the First Amendment
> protects Twitter's right to spend unlimited amounts on campaign advocacy
> (to be clear, just like anyone else), but does not have a
> constitutional right to place factchecks (indeed, mere alternative sources)
> next to politicians tweets.    Second, if you believe that Twitter must be
> held responsible for the content posted by its users (i.e., make them more
> like the NY Times), this will inevitably lead to much more censorship -- as
> they will need to adopt greater automation and preemptive takedowns of
> content that runs the risk of exposing them to liability.  Doing so, by the
> way, will have a massively disproportionate impact today on conservative
> voices (for reasons I can explain later if interested) .  Third, the EO
> (and CDA 230 for that matter) do not simply apply to the largest
> corporations.  If we remove this immunity it will chill the development of
> all kinds of speech marketplaces, big and small, because only the big ones
> will have any hope of hiring the large teams necessary to do content
> moderation at scale.  Fourth, yes, there is liberal hypocrisy here but I
> would put it this way -- the liberal (left) argument against CDA 230
> immunity is that it should be taken away so the overly powerful internet
> companies will be MORE responsible for injurious content on the platforms
> (i.e., encourage censorship).  I suspect the recent EO was not what they
> were contemplating so I suspect  the Warren/Sanders critique of CDA 230
> will wane as a result.  Finally, CDA 230 does not require platforms to be
> uncurated open speech marketplaces.  All of their community standards
> (nudity, hate speech, bullying, incitement, self-harm, disinformation etc.)
> would be unconstitutional under the First Amendment if legislated by a
> government.   CDA 230 is intended to shield them from liability even (and
> especially) when they go beyond the bounds of what a government could do.
>
> Much more to say here, but my basic point was that the speech rights of
> corporations include the speech entailed in a factcheck.
>
> Nate
>
> ----------------
>
> 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 11:30 AM James Bopp Jr <jboppjr at aol.com> wrote:
>
>> I think Nate's confusion arises from not understanding either *Citizens
>> United* or the position of those that support it.
>>
>> I litigated *Citizens United* because I believe that corporations and
>> labor unions have the same First Amendment right to free speech as
>> individuals and that their corporate form is not a constitutionally
>> supportable justification to deny them those protections.  The Supreme
>> Court agreed, which restored to corporations the same free speech rights as
>> individuals have, including the right to independently endorse candidates.
>>
>> However, no person, and now this includes corporations, have a First
>> Amendment right to defame people, with the condition that, if the person is
>> a public figure, the Plaintiff also must prove malice.  Of course, a person
>> is subject to a defamation case if the person "publishes" the defamatory
>> statement.
>>
>> The import of 230 is to make social media platforms immune from
>> defamation liability, since the original business model was that the
>> platform took no responsibility for the content of the posts and thus were
>> not the "publisher" of the post.
>>
>> Unfortunately, these enormous corporation have now succumbed to liberal
>> demands to assume responsibility for content in numerous ways which is
>> leading to censorship principally directed at conservatives. Thus, the
>> original justification for 230 no longer exists, that they were not
>> publishers, so it should be repealed.
>>
>> I am sure that Nate thought that there must be some irony here that
>> *Citizens-United*-loving would want corporations to be free to defame
>> people without liability.  That is just not so.  The New York Times is a
>> corporation and it is not free to do this, nor should Facebook.
>>
>> The real irony is that the left expresses unrelenting hatred of
>> corporations and *Citizens* *United* while at the same time demanding
>> that the largest corporations in the world with the most impact of public
>> communication should engage in censorship of those they don't like and
>> should get special legal protection in order to do it.
>>
>> This position is irrational, in my opinion.  Jim
>>
>> In a message dated 5/28/2020 1:55:48 PM US Eastern Standard Time,
>> npersily at law.stanford.edu writes:
>>
>> 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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-- 
Marty Lederman
Georgetown University Law Center
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