ANA lawyer says Trump's attack on Twitter violates the first amendment
It may be a week late, but the Association of National Advertisers has weighed in on President Donald Trump's executive order against internet companies, saying that it violates the constitution.
On Wednesday, the ANA became the latest ad industry trade group to come out against the president's order, which he signed last week. Trump issued the order after Twitter fact-checked one of his tweets about mail-in voter fraud. Trump called for action against internet platforms that apply censorship tools. The executive order was widely viewed as a move to cow social media platforms into submission, preventing them from tampering with his accounts as the 2020 election heats up.
"I am concerned, the weaponizing in President Trump’s order is an improper government intrusion on free speech," wrote Douglas Wood, general counsel at the ANA.
The ANA was slow to respond to the executive order, which prompted widespread debate about its legality last week. Randall Rothenberg, CEO of the Interactive Advertising Bureau, issued a statement immediately following the president's edict. “It’s a familiar tactic of juntas in places like Pakistan and Argentina, and will not gain traction in the United States, because it clearly oversteps the bounds of executive authority," Rothenberg said.
Trump signed the "preventing online censorship" order last Thursday. In it, he called for internet companies to lose their protection under Section 230 of the Communications Decency Act. The law grants platforms immunity over content published by users, but Trump's order says they should lose the protection if they censor posts. It is a position that is not shared by most legal scholars. The order is being challenged already in court.
Wood argues that the Communications Decency Act allows internet companies to take reasonable measures to police speech on their services. Wood says that the law protects the speech of the platforms, not the government. "President Trump’s Executive Order dictates that platforms drop censoring content on their sites," Wood said. "By doing so, he is compelling speech deemed unacceptable by those platforms to be free from virtually any constraints. In my view, such a government order violates the First Amendment."
The fight over Trump's social media usage is only heating up. On Wednesday, Snapchat became the latest platform to censor him over comments he made about George Floyd supporters who are protesting across the U.S. Floyd was killed last week in Minneapolis, and three officers are set to charged in his murder. Trump tweeted a message that seemed to condone violence against marchers, saying "when the looting starts, the shooting starts."
On Wednesday, Snapchat demoted Trump's account so it would be less visible in its media section called Discover. Twitter, meanwhile, last week tagged Trump's tweet with a warning label that it violates its policies and limited its ability to be shared. Facebook has struggled more with how to handle Trump's most provocative pronouncements. Despite employee protestations, Facebook CEO Mark Zuckerberg has refrained from meddling with Trump's messaging.
In his letter, Wood says social media companies have broad cover to police any content, even from the president. Zuckerberg has said he does not think Facebook should be the “arbiter of truth” when it comes to political speech.
"If Facebook decides tomorrow that it wants to crack down on political lies--by Democrats or Republicans—it is free to do that. And properly so. Nor is it the government’s role to decide when those decisions are fair or discriminatory," Wood says.