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[dc]“T[/dc]witter slapped a warning label on one of Trump’s tweets referring to mail-in ballots for the first time Tuesday, cautioning readers that despite the president’s claims, “fact checkers” say there is “no evidence” that mail-in voting would increase fraud risks and that “experts say mail-in ballots are very rarely linked to voter fraud.”

First Amendment Wars

The president, within minutes on Tuesday, accused Twitter of “interfering in the 2020 Presidential Election based on fact-checking by Fake News CNN and the Amazon Washington Post,” while adding that the platform is “completely stifling FREE SPEECH,” and vowing that “I, as President, will not allow that to happen.”

Trump’s objectionable tweet stated: "There is NO WAY (ZERO!) that Mail-In Ballots will be anything less than substantially fraudulent. Mail boxes will be robbed, ballots will be forged & even illegally printed out & fraudulently signed. The Governor of California is sending Ballots to millions of people, anyone 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!!"

Clearly Zuckerberg wants Trump’s threats to fall on Twitter, Facebook’s social media rival, rather than his own organization.

In response, such experts as Laurence Tribe, a Harvard Law professor since 1969, tweeted back: “1. The First Amendment limits only the Government, not private entities like Twitter.

  • Anyway, Twitter’s tagging of Trump’s claims about write-in voting is itself absolutely protected under the First Amendment as an expression of opinion.
  • 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.
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To which Mark Zuckerberg, head of Facebook, “called out Twitter for attaching a fact check to a tweet from President Trump, telling Fox News' Dana Perino that privately-owned digital platforms should not act as the "arbiter of truth."

"We have a different policy than, I think, Twitter on this," Zuckerberg told "The Daily Briefing" in an interview scheduled to air in full on Thursday.

"I just believe strongly that Facebook shouldn't be the arbiter of truth of everything that people say online," he added. "Private companies probably shouldn't be, especially these platform companies, shouldn't be in the position of doing that."

One doesn’t know if Facebook has a different policy of not. But clearly Zuckerberg wants Trump’s threats to fall on Twitter, Facebook’s social media rival, rather than his own organization. Zuckerberg’s statement that “private companies” shouldn’t be the arbiter of truth of everything people say online might come as a surprise to newspapers and magazines. They are all private companies, and they pride themselves on investigating the truth behind statements made online.

Prof. Tribe showed how false Trump’s threat is. If the government were to shut down Twitter or the New York Times for criticizing one of his tweets, our country would be on the brink of fascism. Every statement by Trump, whether or not on Twitter, is fair game for analysis and criticism, as is the public statement of any citizen. Zuckerberg’s statement seems to be one of cowardice or political backing of Trump. In any event, Trump’s threat shouldn’t be supported by anyone who believes in the First Amendment.

michael hertz

Michael T. Hertz