President Donald Trump got a reality check on Tuesday, or at least a fact-check, when Twitter began flagging the president’s false or misleading tweets and providing links to factually accurate information–in this case, about extremely low rate of mail-in voter fraud. The president responded by attacking the social media platform, claiming the privately owned company was “stifling free speech,” a statement which many legal experts saw fit to fact-check as well.
The platform’s new fact-checking mechanism appeared when Trump tweeted a series of false and unsubstantiated claims about the prevalence of voter fraud in relation to mail-in ballots.
….living in the state, no matter who they are or how they got there, will get one. That will be followed up with professionals telling all of these people, many of whom have never even thought of voting before, how, and for whom, to vote. This will be a Rigged Election. No way!
— Donald J. Trump (@realDonaldTrump) May 26, 2020
The link, which urged people to “Get the facts about mail-in ballots,” directed readers to a brief statement explaining the untrue nature of the claims and a list of bullet points rebutting several individual falsehoods.
Twitter had been under increasing pressure to do something about certain tweets posted on the president’s official account, but the final straw appears to have been an emotional plea from the widower of Lori Klausutis. Klausutis’s accidental death nearly 20 years ago has been used by the president to accuse MSNBC’s Joe Scarborough of murder.
According to the medical examiner’s report, the then-28-year-old congressional staffer fainted while working late in Scarborough’s Florida office and, due to an undiagnosed heart condition, hit her head on a desk. Klausutis wasn’t found until the following morning. Scarborough himself was more than 900 miles away in Washington at the time.
Timothy “T.J.” Klausutis asked Twitter to remove Trump’s “horrifying lies” about his deceased wife. Twitter did not do that, but they fact-check the president on Tuesday.
Upon learning of the new feature, the president responded by erroneously accusing Twitter of violating his right to free speech; he threatened to take action against the company.
“Twitter is now interfering in the 2020 Presidential Election. They are saying my statement on Mail-In Ballots, which will lead to massive corruption and fraud, is incorrect, based on fact-checking by Fake News CNN and the Amazon Washington Post,” Trump tweeted. “…Twitter is completely stifling FREE SPEECH, and I, as President, will not allow it to happen!”
….Twitter is completely stifling FREE SPEECH, and I, as President, will not allow it to happen!
— Donald J. Trump (@realDonaldTrump) May 26, 2020
As noted in a previous Law&Crime analysis regarding the decisions of private business entities, the First Amendment protects “subjects and citizens from government action.”
Twitter is not the government.
The irony of the president complaining that a non-state actor was violating his right to free speech–only to threaten to use his government position to prevent that non-state actor from continuing to operate in such a way (which would be a violation of Twitter’s First Amendment rights)–was not lost on legal experts.
Anti-Trump Harvard Law School Professor Laurence Tribe, one of the nation’s most widely known constitutional scholars, called Trump’s tweet’s “insane.”
“Trump attacking Twitter for exercising its indisputable First Amendment right to opine on the misleading tweets he posts on its platform. Now THAT IS INSANE,” Tribe wrote.
Trump attacking Twitter for exercising its indisputable First Amendment right to opine on the misleading tweets he posts on its platform. Now THAT IS INSANE. https://t.co/qTnUYWcp4O
— Laurence Tribe (@tribelaw) May 27, 2020
Tribe also provided a series of tweets explaining why Twitter cannot abridge Trump’s free speech.
3. In addition, Twitter’s tagging, even insofar as it can be construed as a factual statement, is shielded by the defense of truth: the claim that Trump’s tweets about massive write-in voter fraud are at best extremely misleading and at worst downright lies is demonstrably true.
— Laurence Tribe (@tribelaw) May 27, 2020
because they express[] views with which [he] disagrees.” That holding makes Trump’s claim that Twitter’s fact-checking and tagging his tweets violates HIS First Amendment rights all the more ludicrous. Another case of projection:
— Laurence Tribe (@tribelaw) May 27, 2020
Former acting solicitor general and U.S. Supreme Court litigator Neal Katyal also provided a rebuttal.
The only thing stifled is bold faced lies with no fact check. If he disagrees with the fact check, he can engage in more speech (and has biggest megaphone in the world) to explain why. Trump can't defend himself, so he masquerades in this way. He's terrified of more speech. 2/2
— Neal Katyal (@neal_katyal) May 27, 2020
Several other experts weighed in as well.
Berkeley Law professor Orin Kerr:
Citizens United ruled that corporations have the same free speech rights as anyone else. This is Twitter's free speech, and Big Government can't trample on their constitutional rights.**
**Note that this used to be a conservative position, like, in 2016. pic.twitter.com/xllnOGstOc
— Orin Kerr (@OrinKerr) May 27, 2020
University of Kentucky College of Law professor Josh Douglas:
I really wish we had a president who had read the Constitution. https://t.co/OeqXN8eU30
— Josh Douglas (@JoshuaADouglas) May 27, 2020
Trump campaign Senior Legal Advisor Jenna Ellis responded to the Trump-Twitter feud. She called Twitter’s fact-check decision “blatantly partisan.”
FACTS: Mail-in balloting increases the chain of custody of a ballot and thus increases the incidents of fraud. Without mail-in balloting, there can't be vote harvesting, which is a key attempt of Democrats to undermine important safeguards to election security. 2/
— Jenna Ellis (@JennaEllisEsq) May 27, 2020
Election integrity and security is not a partisan issue and President Trump is right to be concerned with keeping the votes of all Americans in all elections free and fair. 4/
— Jenna Ellis (@JennaEllisEsq) May 27, 2020
[image via SAUL LOEB_AFP via Getty Images]
Have a tip we should know? [email protected]
Follow Law&Crime:
