Scragged Apologizes for Misleading President Trump

Stripping Twitter of lawsuit protection isn't going to work.

NBC News reported that after "fact-checking" President Trump for lying (sic) about the possibilities of fraud in mail-in voting, a viewpoint which was not news as far as we were concerned, Twitter "fact-checked" him again for inciting violence (sic).

Twitter put a tweet from President Donald Trump behind a warning label early Friday [May 29, 2020 - ed], stating that he had violated its rules against glorifying violence when he tweeted about protests over the death of George Floyd.  [emphasis added]

This Tweet was Mr. Trump's response to yet another outburst of summer violence which was reported in the New York Times.

There were violent protests in both Minneapolis and Louisville, Ky., last night, as tensions over recent police killings escalated. A police precinct in Minneapolis was set on fire, and seven people were shot at a demonstration in Louisville.  [emphasis added]

There were also protests in several other cities, including New York, Denver and Columbus, Ohio, and President Trump posted two angry tweets, one of which Twitter flagged for "glorifying violence."

  - New York Times daily email summary, 5/29/2020

We found it both gratifying and surprising that the ultra-woke Times referred to "violent protests" unlike many of their peers who avoided the R-word and refused to mention rioting.  NBC quoted the President's tweet:

These THUGS are dishonoring the memory of George Floyd, and I won't let that happen. Just spoke to Governor Tim Walz and told him that the Military is with him all the way. Any difficulty and we will assume control but, when the looting starts, the shooting starts. Thank you!

Instead of displaying his Tweet, they hid it behind this note and offered a link you had to click to actually see it.

This Tweet violated the Twitter Rules about glorifying violence. However, Twitter has determined that it may be in the public's interest for the Tweet to remain accessible.

Having based his Presidency on reaching his base by going around the mainstream media, Mr. Trump depends on his Tweets being transmitted reliably.  It should surprise no one that he struck back.  CNet tells us

On Thursday [May 28, 2020], Trump signed an executive order that aims to curtail legal protections that shield Facebook, Twitter and other online companies from liability for content posted by their users.

The executive order seeks to undo "safe harbor" protections given Internet companies, and instead to treat them as "content creators" who can be sued.

We've argued that Internet firms should be forced to choose either to be common carriers and accept information without censoring anything as telephone companies do, or choose to be publishers who can be sued as newspapers can be.  That's what "content creators" means.  Mr. Trump must read Scragged - that's where he's going.

His order focuses on Section 230 of the Communications Decency Act which protects Internet businesses from libel lawsuits while leaving them free to decide what will and what will not appear on their platforms.  The underlying assumption of this protection was that Internet businesses would operate in good faith by avoiding political bias and viewpoint censorship; that "Don't be evil" assumption has been proved utterly wrong beyond dispute.

Mr. Trump is not the only high-level politician who feels that Section 230 has gone past its sell-by date.  The New York Times interviewed Joe Biden and reports that Mr. Biden is in complete agreement on this with President Trump.  Mr. Biden is concerned enough about the societal dangers of Internet firms in general and of Facebook in particular that he has urged that Section 230 be repealed in its entirety:

It [Section 203] should be revoked because it [Facebook] is not merely an Internet company. It is propagating falsehoods they know to be false, and we should be setting standards not unlike the Europeans are doing relative to privacy. You guys still have editors. I'm sitting with them. Not a joke. There is no editorial impact at all on Facebook. None. None whatsoever. It's irresponsible. It's totally irresponsible. ...

He [Mike Zuckerberg] should be submitted to civil liability and his company to civil liability, just like you would be here at the New York Times. Whether he engaged in something and amounted to collusion that in fact caused harm that would in fact be equal to a criminal offense, that's a different issue. That's possible. That's possible it could happen. Zuckerberg finally took down those ads that Russia was running. All those bots about me. They're no longer being run.  [emphasis added]

When politicians whose views are as far apart as Mr. Trump's and Mr. Biden's arrive at such vehement agreement, do we have a consensus with enough critical mass to change the law?

Something had to be done, and President Trump is following advice from Scragged!  Break out the champagne, right?

Mea Culpa


After carefully observing what has led up to this point, diligently reading both sides of the ongoing argument, exercising our intelligence tempered by experience, and applying a heavy dose of capitalist principles... we've come to the conclusion that, alas, we made a mistake by not thinking the Section 230 issue and the related net neutrality issue through quite all the way.

To be exact: We were wrong in suggesting that Internet firms could choose one model or the other.  They can't - not and stay in business, anyway.

The common carrier model won't work because advertisers don't want their ads anywhere near controversial material, where "controversial" is defined as whatever the wokest Twitter mob doesn't like at any given moment.  As a condition of paying Google or Facebook to display their advertising, businesses insist that these platforms police their content carefully so that their ads won't make people think they're guilty by association with whatever material is displayed close to their ad or even a few screens before or after their ad.

This isn't a problem for the phone company because it's not advertising-funded and never has been.  The drug dealer or child molester pays his own phone bill, same as the nun, rabbi, teacher, or captain of industry.  The phone company can afford to treat customers equally because each customer pays equally green money .

In the business model created by the Internet giants, though, that's not so: nobody that uses the services pays them a dime.  The service subsists off of payments from third parties, the advertisers, who the Internet companies must please in order to garner revenues.

Consider: what would happen to, say, Charmin if the Internet lit up with screenshots of their bum-wiping bears next to a post by neo-Nazis blaming Jews and black people for all the evils in the world including the shortage of toilet paper?  Nothing good, for sure - Twitter wouldn't see another cent from Proctor & Gamble until they could be absolutely guaranteed that would never happen again.

Similarly, readers of Scragged would be displeased if their articles were defaced by ads from Planned Parenthood.

In order for a business model dependent on ad revenues to work at all, the business must be able to enforce limits on what is published so as not to offend the paying audience, just as print media of long ago were careful not to publish news which might offend their large advertisers.  If, as Mr. Trump proposes, Twitter and Facebook must publish and equally promote anything that isn't demonstrably illegal like child pornography or direct incitements to violence, their advertisers will flee en masse and the companies will collapse.

That may seem like a good thing given the leftist fervor of Mark Zuckerberg and Jack Dorsey, but it's not.  Twitter and Facebook have become billion-dollar giants because they really do provide something people want.  It would be a shame to crush that.  Wiping them out would be unAmerican and anti-capitalist at the very least.

So, why don't they just admit their bias, take responsibility for what they publish, and move forward as what amounts to electronic newspapers?

Well, first, and most obviously, newspapers are going bankrupt.  Their business model, based on careful reporting, editing, and fact-checking to create credible content for sale to subscribers and paid for by advertisers, worked for a century but doesn't anymore.  Why would Twitter and Facebook abandon their Scrooge McDuck money bins for the poorhouse?

What's more, even if money were no object - a complete fantasy - American and European laws quite rightly require that Internet firms take down copyrighted material that the owner doesn't want displayed.  As a result, both companies have spent millions designing automated computer algorithms to support this requirement.

Unfortunately, the inherent logic and total lack of imagination of computer code enables a variant of "cancel culture."  It's the work of a few moments to put a copy of a YouTube video on another web site festooned with copyright notices, then send a copyright violation claim to YouTube, including a helpful link to the "copyrighted" site.

YouTube's algorithm correctly notes that the videos are identical, reads the copyright notice, and takes down the video from YouTube.  There's no way for YouTube to verify that whomever complained really owns the copyright, because most people don't bother registering copyrights for blog posts or videos.  Indeed, the law doesn't require registration for you to have an enforceable copyright.  The penalties for violating copyright are serious enough that these sites cancel postings rapidly and worry about it later.  They haven't bothered to set up a complaint mechanism to help people whose material has disappeared or whose accounts have been blocked.

Any hacker can copy one of your photos or home videos off your Facebook page, post it on another site, and tell Facebook to take it down.  If they really want to harass you, hackers could do this often enough that Facebook would decide you're a hard-core copyright violator and cancel your page to avoid future hassles.

None of the Internet firms could withstand an onslaught of thousands of algorithm-based libel suits which could be filed automatically.  That was recognized when the safe harbor legislation was enacted back in 1995, which was well before such suits could be filed without human intervention.

Of course, it's absolutely out of the question for human beings to be involved in such decisions: it would take half the world population beavering away in front of computer monitors even to scratch the surface of the volume of data involved.

Thus, Section 230 immunity is what makes social media possible.  Holding Twitter and Facebook liable for whatever is posted on them would inevitably cause them to cease to exist in short order.

Glorifying Violence, or Decrying It?

With respect to Mr. Trump's Tweet about sending the National Guard to stop the rioting, we don't see how pointing out to rioters that they ought to think twice about engaging in activities that can get them shot or arrested could possibly be regarded as "glorifying violence."  As if there were any doubt, blocking that specific Presidential Tweet is a perfect object lesson to how irreconcilably different various points of view can be.

The New York Post gave us a vivid illustration of how difficult it is to define "fair and balanced."

Will the platform [Twitter] also append "fact-check" labels and links to tweets from prominent liberals that also turned out to be "misleading" or outright false?

Start with a 2017 tweet from CNN contributor Ana Navarro claiming that an "Ivanka Fund got $100 million pledge from the Saudis and UAE."

The truth: The cash went to a World Bank initiative for female entrepreneurs. Navarro's tweet garnered more than 43,000 retweets.

In January 2019, former President Barack Obama's ambassador to Russia, Michael McFaul, joined thousands of other members of the blue-check Twitterati in touting a made-for-Twitter BuzzFeed News expose. "This is big," McFaul wrote, "President Trump directed his attorney to lie to Congress."

Yes, big - and false: Special counsel Robert Mueller's team was quick to characterize the story as inaccurate, and its report made clear that the president had done no such thing. No Twitter "fact-check" hazard for McFaul, et al., though.

As the Post pointed out, there is simply no way to reconcile Twitter's view of Mr. Trump's "violence" post with our view of these false liberal posts.  Conservatives accusing the media of liberal bias is nothing new.  Way back in the pre-Internet days, a group of conservatives tried to raise money to purchase the CBS Television network so that they could move its programming closer to what they believed to be the truth.

Fox News has gained a massive market by offering a marginally more centrist take on the events of the day, and has made billions doing so. They have carved out their own slanted market segment just as the liberal MSM has done and there's no going back.  A retired president of CBS News, who ought to know, recently explained this with crystal clear logic in the pages of the Wall Street Journal.

He pointed out that neither Fox nor the liberal MSM can change to a more neutral, fact-based policy without going bankrupt.  Conservatives would never subscribe to the New York Times or the Washington Post no matter how hard they tried to become less biased.  If they tried, they'd lose their current subscribers without picking up any new ones.

We described an incident when the Times changed a perfectly accurate headline twice in an ever-more-anti-Trump direction in response to reader pressure exerted via Twitter.  The first and second versions weren't sufficiently anti-Trump for the Twitter mob, and it was clear to the Times that they'd lose readers unless they let the mob write the headline.  The MSM, like Fox, are locked into their current editorial policies.

Therefore, we are in a situation where all the previously pondered suggestions are proven paths to utter failure:

  • Allowing Facebook and Twitter to police themselves has simply allowed the far left to control the national discussion - the exact opposite of the original hopes for social media.  There is no more American value than freedom of speech, so allowing things to remain as they are is inherently unAmerican.
  • Holding Facebook and Twitter liable for everything posted on them would immediately destroy them along with the legitimate potential social media offers.  This is impractical, unrealistic and unAmerican.
  • Requiring Facebook and Twitter to just leave everything alone was how they worked in the early years.  This era was brought to a close by an avalanche of lawsuits by copyright-holders whose copyrighted works were being freely exchanged via social media in contravention of copyright laws.  That portion of American society consisting of college students thought that was just fine; everyone else, though, felt it unjust.  Once they started filtering for copyrighted material, the liberals running these firms found they could filter content by topic and political slant as well.

Instead, we need a new idea that hasn't already been tried and failed.  How's this?

Put a size limit on Section 230, leaving it as-is for smallish companies.  But, define any Internet information-based business grossing more than, say, a billion dollars per year as by definition a publisher who can be sued.

Thanks to the famous "network effects" of bigness, that still would cause problems: in effect, it would mean no social media business could gross more than the set amount.  That's not enough, so we also must temper the lawsuit risk by adding penalties for "frivolous lawsuits" and a "loser pays" provision for suing an Internet company.

We've shown how tenuous class action lawsuits have been used to shake down AOL and Facebook, enriching lawyers while giving pennies to their customers who were supposedly harmed.  The threshold for class action lawsuits against Internet companies needs to be higher, and there need to be heavy fines and disbarment for abusing the legal process.

The most effective way to curb immunity while protecting the Internet from frivolous lawsuits would be "loser pays."  If someone sued an Internet company and lost, the loser should have to pay the winner's legal fees.  This is the way British courts conduct themselves, and it has greatly reduced the harm that can be done by waging lawfare.

Why hasn't this already been tried?  The practical solution of making it harder or more expensive to file frivolous lawsuits would have annoyed the trial lawyers.  They're sufficiently heavy donors to Democrats that this solution wasn't even considered when Section 203 was written.

These days, though, we have President Trump, who glories in taking the battle to the enemy and undercutting his sources of financing.  What could be more delightful to him than to make a change supported in headlines by Joe Biden, his opponent, while also taking skin off his hide?

If nothing else, it would be an effective IQ test of "Sleepy Joe" - does he even know which side his bread is buttered on these days?  Enquiring minds want to know - and thanks to Mr. Trump's executive order, the social-media giants wouldn't be able to shove the truth down the memory hole.

Will Offensicht is a staff writer for and an internationally published author by a different name.  Read other articles by Will Offensicht or other articles on Law.
Reader Comments

It's getting worse. CNN tells us:

Facebook employees stage a virtual walkout over Zuckerberg's inaction on Trump posts

Could anyone tell us why Facebook employees think that Mr. Trump's demand that order be restored is inciting violence? Protest is OK, to be sure, but violence is not, or at least it was not OK some decades ago.

Some Facebook employees staged a virtual walkout on Monday to protest CEO Mark Zuckerberg's decision not to take action on a series of controversial posts from President Donald Trump last week, a person familiar with the plans told CNN Business.

As part of the walkout, employees took the day off work. Managers at Facebook have been told by the company's human resources department not to retaliate against staff who are planning to protest, or to make them used paid time-off, the source told CNN.
The New York Times first reported the protest.
The walkout comes alongside a rare wave of public dissent from Facebook employees on Twitter. Jason Stirman, a design manager at Facebook, said he disagreed with Zuckerberg's decision to do "nothing" about Trump's recent posts. "I'm not alone inside of FB. There isn't a neutral position on racism," he wrote in a tweet on Saturday.

June 2, 2020 2:08 PM

You were timely. Everyone is shredding social media. Worm barrels have been overturned.

June 3, 2020 2:48 PM

Your solution may or may not be mainstream, but these people agree with yo uthat something msut be done.

You might expect to have your speech suppressed in Communist China. But in the United States? That should be unthinkable. Unfortunately, it now happens every single day in the digital public square.

The targets are usually conservatives, and we can and must fight back by reforming an outdated law adopted long before the rise of social media.

When President Trump thumped Hillary Clinton in 2016, Big Tech companies like Google, Facebook and Twitter came under immense pressure from left-wing activists, who blamed them for enabling his election. These activists demanded that firms implement much tougher content-moderation standards, ­including the removal of any user posts deemed to be false, misleading or “hateful.”

Tech honchos like Twitter’s Jack Dorsey caved to these demands. The results: YouTube ­demonetizing and limiting reach for conservative content; Google rigging its search results to suppress conservative views; Twitter banning Senate Majority Leader Mitch McConnell for posting a video of lefty protesters threatening violence against him; TikTok banning influential pro-life accounts; and Facebook blocking all “misinformation” related to COVID-19, including a Post op-ed arguing that the virus may have escaped from a Chinese lab.

Now, Twitter has even begun “fact-checking” the leader of the Free World and restricting access to his tweets, raising serious concerns of election meddling.

Big Tech companies occasionally reverse course on these decisions, but only when the victim is someone with influence. For most people, it’s tough luck. In 2019, the White House announced it had received more than 16,000 credible reports of online censorship.

But it gets even worse: Our government effectively subsidizes these firms. Thanks to Section 230, a provision in the 1996 Communications Decency Act, Big Tech companies enjoy near complete immunity from civil liability. That special protection would make more sense if these platforms were providing a public square, allowing users free speech and free expression. But instead, they appear to be dead-set on picking winners and losers, promoting the speech they like and suppressing the viewpoints they don’t.

If that’s so, why provide an anti-lawsuit subsidy at all? What’s in it for the American people?

Trump has called on Congress to amend Section 230. The 25-year-old law doesn’t function as it should today, especially as it relates to Big Tech.

My organization, the American Principles Project, has released a blueprint for Section 230 reform. We argue that Section 230 should be amended to incentivize Big Tech companies to provide an authentic digital public square, where free speech is cherished. Our proposal maintains Section 230 immunity for most Web sites but makes it conditional for the largest, market-dominant platforms.

Consider a company like Google, which owns more than ­90 percent of the global market share for online search. That kind of power over the free flow of information is incredibly dangerous. With a single algorithmic tweak, Google could change the course of events.

That should frighten us all. But Google, like any Big Tech platform, relies heavily on Section 230 to protect itself from legal exposure. It’s a benefit that bolsters its near $1 trillion market valuation. Google needs that subsidy, and we need to prevent the information game from being rigged.

So, let’s make a deal.

Our proposal is simple: Attach strings to the subsidy. Market-dominant companies would receive immunity as long as they allow speech on their private platforms that would be otherwise constitutionally protected on a public sidewalk.


June 15, 2020 2:35 PM
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