Late on September 28, 1972, a Washington Post reporter phoned John Mitchell to seek comment on evidence that he—while Attorney General of the United States—controlled the private slush fund used to bankroll the Watergate break-in. His response—as reported in the Post the next day—was to threaten the paper’s publisher: “Katie Graham’s gonna get caught in a big fat wringer if that’s published.”
Mrs. Graham famously stayed the course, her paper unseated a president, and Mitchell’s thuggish line has become a catchphrase for the abuse of government power. Less well known is that President Nixon was later recorded saying: “The Post is going to have damnable, damnable problems. ... They have a television station.” Sure enough, lawyers close to Nixon and Mitchell later challenged the Post’s Florida license renewals before the Federal Communications Commission—causing the company’s stock price to fall by more than 50 percent and costing the modern equivalent of $6 million in legal fees.
Echoing that history, today’s headlines again feature a vindictive president, a compliant attorney general, a threat of FCC enforcement, and a prominent media company.
Late last week, President Trump—accompanied by his Attorney General William Barr—signed an executive order purportedly aiming to prevent "censorship" by online platforms. The gist of the document is to twist a 24-year-old law aimed at protecting digital platforms like Twitter and Facebook into a cudgel of crippling financial liability if such platforms dare to point out when a president may be stretching the truth.
As the president has himself made clear, his motivation is anger at Twitter for flagging two of his tweets—in which he called voting by mail “substantially fraudulent”—as “potentially misleading.” The order expressly charges Twitter with “political bias” for having done so while allowing Democratic Congressman Adam Schiff to “continu[e] to mislead his followers by peddling the long-disproved Russian Collusion Hoax.” Under the banner of “preventing censorship,” the order is a naked effort to punish a specific company for speaking in a way the president perceives as a threat to his re-election.
The legal contortions required to reach this result are absurd. The fundamental aim of the underlying law—Section 230 of the Communications Decency Act—is to encourage online platforms to allow many points of view while still establishing some limits. The first part says that users, and not platforms like Twitter or Facebook, are responsible for the truth or falsity of the content these users post. And the second that says platforms can restrict access to users’ posts that the platform, in good faith, believes may be objectionable. From these two straightforward statutory provisions, last week's order invents a third provision which Congress surely would not have approved because it guts the whole purpose of the law: If a platform is found to restrict any amount of content for reasons that don’t qualify as “good faith,” it is liable for the truth or falsity of any post that it does not restrict. And the order describes a demanding definition of “good faith” that would be impossible for any real-world company to achieve—as is surely the intent.
The order then goes on to direct: the FCC to hold a rulemaking to turn this legal theory into formal regulations; the Federal Trade Commission to investigate whether Twitter and other online platforms are engaged in unfair or deceptive trade practices; and a working group of states to investigate ways to further punish online platforms. Oh, and a Department of Justice-led process to identify “problematic” online platforms that may no longer receive federal advertising dollars. Any bets on which platform will be first in that line?
To be sure, there will likely be legal challenges to this order and there is reason to think they’ll succeed. Presidents and executive agencies can’t flat out rewrite Congressional statutes, and the order’s reading of Section 230 is at odds with decades of court cases interpreting the statute. It is also uncertain that the FCC even has statutory authority to interpret this particular law, and the president’s own anti-Twitter tweets surely won’t help his lawyers portray this as a public-spirited interpretation of law rather than a vendetta. And the order will surely be challenged on First Amendment grounds.
But the order is still profoundly dangerous because it is essentially an attempt to punish Twitter for its speech—itself a First Amendment violation. And it will have a serious chilling effect on free speech. Every digital platform—or media company of any type—is now on notice that efforts to provide an opposing viewpoint to presidential statements will mark them as targets for government regulation. Even if they believe they are on strong legal grounds, no company can afford to blithely provoke the vast power of the Oval Office. That creates a chilling effect on speech, creates a disincentive for the social media companies to try and address misinformation, and makes the speech environment worse for everyone.
This is a particularly troubling development because it is clear now—as it was not in 1996 when the CDA was written—that digital platforms can be divisive and misleading as well as enlightening and empowering. What we need is more experimentation—not less—from powerful gatekeepers like Twitter and Facebook on bringing facts and context to often bilious and fact-free online discourse. The immediate practical effect of this presidential order is to make it less likely that any other platform will engage in that kind of experimentation, particularly actions that call out President Trump or other powerful officials.
When Mrs. Graham wrote her Pulitzer Prize-winning memoir, Personal History, she took pains to point out that the Mitchell quotation reproduced in the paper was in fact bowdlerized by the Post’s editor Ben Bradlee. Mitchell’s actual words were misogynistic as well as vicious: “Katie Graham’s gonna get her tit caught in a big fat wringer.”
“I was shocked to read what I did in the paper, but even more so by what Mitchell had actually said, so personal and offensive were the threat and the message,” she wrote. Yet she proudly displayed a working wooden laundry-wringer in her office—signed by Woodward, Bernstein, and Bradlee—for the rest of her time at the paper. Hers is an example that Silicon Valley’s CEOs would do well to emulate.
Katie Fallow is a senior staff attorney at the Knight First Amendment Institute.