Carte Blanche: Can Trump Do That?

Igor Sapozhkov / Dreamstime.com

On the day of May 28th, 2020, President Donald Trump signed an executive order aimed at controlling the self-censoring abilities of social media companies. This decision was made only two days before tweets of his own about the possibility of corruption from mail-in ballots were fact-checked by Twitter. However, the President drew the ire of Twitter and many users after he had accused former Republican Congressman, Joe Scarbrough, of being responsible for the death of an intern dating back to 2001, before he resigned from office. 

All of this is merely to point out the obvious: the President doesn’t really have a filter. Now that is neither to condemn nor praise the President for his conduct on Twitter, but it is obviously apparent that it is a very large factor in his political strategies. However, the real question isn’t whether or not the President should be able to politicize his Twitter account, but does Trump, or even the government, have the constitutional authority to control speech on a private platform?

While Americans strongly hold on dearly to the principles of the Bill of Rights, we are not absolutely protected in America--not even freedom of speech. Protection of speech for individuals is a right that should be staunchly protected, however, a basic libertarian argument would be that speech capable of creating harmful, physical externalities on other individuals would be in the state’s interest to protect. If someone were to falsely yell fire in a crowded space and incited a riot that resulted in injuries to other individuals, they would be responsible. 

There isn’t going to be a definite broad consensus answer from libertarians because while some may believe that the government’s interest should be centered on the protection of private property, others may believe any form of government interference would be unjust. Robert Levy, Chairman of the Cato Institute, wrote a piece called “Libertarianism 101” in which he outlines an official position on government:

“Libertarians are not opposed to reasonable safety regulations, sensible compromises of civil liberties to enhance national security, or even selective gun controls. Moreover, we recognize that markets are not perfect. But neither is government. The proper comparison is not “unfettered” freedom versus a perfectly managed world. Instead, the relevant tradeoff is free markets versus the reality of government intervention. No doubt, government occasionally does good things. But the equation isn’t complete without considering the bad things that inevitably accompany the good.”

A private institution reserves the right to establish codes of conduct and requirements based on the freedom of association implied in the first amendment that we accept as a constitutional right. Furthermore, like-minded individuals should have the freedom to decide whom they wish to associate themselves with. However, according to the court decision in the case of Roberts v. United States Jaycees (1984), large commercial, non-selective and non-ideologically driven enterprises are less protected from discriminating access to entry.

That specific court case dealt with the ability of a Minnesota junior civic society’s ability to discriminate against women. A Minnesota law was implemented against this policy and further outlawing sexual discrimination. The Jaycees was a large national, non-ideological and low exclusivity leadership organization so the Minnesota law did not impede the organization's ability to express its beliefs. 

In order for the government to justify limiting a constitutionally protected right, they need to prove a seriously compelling government interest. However, if we are to remain free, we must always be cynical and inquisitive about the nature of the government’s “compelling interest. While we should be aware of potential threats to liberty in society from private actors, this does not justify surrendering to the absolute discretion of the state.

Of course, Trump has a serious personal interest in controlling the authority of Jack Dorsey and Mark Zuckerberg, the respective CEOs of Twitter and Facebook, however, let’s not allow Trump’s status as an individual cloud our judgment to a very present and dangerous reality: tech companies wield insane power over our lives. Tech companies are pretty much untouchable in terms of liability for what is said on their platform according to section 230 of the Communications Decency Act (CDA). There has been strong bipartisan opposition to this Act besides the president including the former Vice President, Joe Biden, and Speaker of the House, Nancy Pelosi.

Protecting private businesses from government intervention would be an easy argument to defend if it wasn’t for the fact that Twitter has over 64 million active users in the US, Facebook has 190 million and YouTube has over 200 million viewers in the US. The public forums are not only physical, but we now have enormous digital public spaces. If we aren’t happy with the government censoring then why are we content with Twitter and Facebook dictating public discourse?

Therefore, it seems the argument is no longer about “can he do that?”, but it should be “is this the right way to do it?”. There is a pertinent need to restructure property and liability laws around tech companies, which should be a bipartisan issue, but an executive order, especially from such a controversial president, could very well undermine this cause down the line or set a dangerous precedent that others will adopt.

All that being said, allowing the government to freely invade the space of private tech companies would be a terrifying breach of liberty. What will be the standards and regulations for the state’s involvement with such a thing? Will they be able to freely shut off information from these tech companies just like a dystopian authoritarian regime? We could make the most convenient decision and restart the trust-busting era in memory of our 26th President, Teddy Roosevelt, but if the government seizes too much power, we risk diminishing trust in our financial institutions and protections internationally.

While a piece of legislation similar to section 230 of the CDA seems to make a business “too powerful”, it is necessary to preserve the freedom of choice and association that Americans and all individuals should be able to possess. If individuals don’t like what a business stands for, then they can take their business elsewhere, and if the participants in the market are smart, they will accommodate those desires. 

Pelosi has denounced tech companies' inabilities to mitigate the effects of “disinformation”, but this argument insufficiently asserts that there is a completely objective truth. Furthermore, it would be an assertion that political rhetoric, such as future possibilities of corruption in mail-in campaigns, is a lie rather than a speculative appeal to doubtful voters. In short, we can’t allow the government to control the affairs of businesses and manipulate the functions of a company for a “compelling” interest. 

Controlling the behaviors of privately owned businesses for the sake of civil liberties is not only oxymoronic, but it is completely contradictory to the Bill of Rights. Individuals and the free market should be allowed to operate to decide which businesses they wish to affiliate with, how they affiliate with them, and how those businesses can reciprocate. If the market demands for a platform that allows for everything under the sun to be said then we get sites like 4chan, Reddit and even Facebook, whose CEO has agreed to allow all political speech to exist. 

While I might personally disagree with a platform removing posts because they disagree with them, I have the freedom to leave, and they have the freedom to exist as they wish. The problem occurs when we panic and allow the paternalistic government to make those decisions for us. We are all grown-ups here, we can make decisions for ourselves.