Opinion: Twitter waited three years too long to enforce its rules on Trump

President Trump has finally goaded Twitter into starting the fight that Trump has been itching to have. Unfortunately for the social media giant, it’s a fight Twitter cannot win anymore — and one that Trump and his allies do not want to end.

Over the course of his term, the president has flouted Twitter’s terms of service countless times with impunity as he’s used the platform to launch personal attacks and wildly mislead the public (often with bold but false assertions that he eventually deletes). On Tuesday, Twitter — whose leadership moves with tectonic speed — finally called him on it, flagging two of his posts about vote-by-mail fraud in California as potentially misleading.

Naturally, Trump responded with outrage, accusing Twitter of trying to sway voters:

On Wednesday, Trump showed more of his cards. By pushing back against his tweets on voter fraud, Trump argued, Twitter was confirming its bias against conservatives:

The rhetorical jujitsu on display is, you have to admit, masterful. As is the case with so many of those who defy Trump, Twitter is playing checkers and Trump is playing “Warzone.”

For starters, Twitter singled out the wrong tweets. As distorted and factually wrong as Trump’s tweets about California’s mail-in voting system were, they weren’t the ones that had provoked a groundswell of public outrage. Those would be the smear campaign Trump was simultaneously waging against MSNBC’s Joe Scarborough, vaguely accusing the former congressman of having been involved in the death of a staffer 20 years ago. The staffer’s widower asked Twitter to take those tweets down, and Twitter refused.

More important, though, was the timing. Twitter has ignored Trump’s line-crossing for so long that any move it makes now invites an accusation that it’s trying to influence voters. Had it taken action the first time the president abused its platform, it would have set a precedent that no one was above Twitter rules. By waiting until now, it has delivered exactly the opposite message.

Some readers might argue that the public has an interest in hearing whatever the president wants to say, on any platform. That’s nonsense. The president has a unique platform of his own that he can use at any hour of any day. When he ventures onto Twitter, Facebook or any other nongovernmental space, he is leveraging someone else’s resources to broadcast his thoughts. He has no entitlement to do so — no one does.

Under a provision of federal communications law known as Section 230, Twitter has a clear right to enforce its terms of service against any user who violates them. And given that it’s a private company,and not an arm of government, there are no 1st Amendment issues in play. In fact, Twitter has its own 1st Amendment speech right to mark offending tweets as it sees fit.

But conservatives have campaigned steadily in recent years to turn those rights into liabilities, arguing that Twitter, Facebook, YouTube and other online powerhouses have been biased against their tribe. Never mind that the supposed targets of this alleged bias have been extremists like Alex Jones of Infowars (and Nation of Islam Minister Louis Farrakhan, not exactly a Republican). The point is to play the victim card over and over, so that Twitter and company will hesitate to act even against obviously improper posts.

The fact that it took Twitter until Tuesday to act — and that it used the blandest possible language in flagging Trump’s tweets — shows how well conservatives have worked the refs.

So what might Trump’s “big action” be? He can’t simply create a new watchdog to oversee the tech giants because, again, they are protected by Section 230. But there may be a legislative play; some Republicans (and some Democrats) are trying to weaken or even undo that shield because they believe it protects too much bad behavior. That’s why Congress carved a hole in Section 230 two years ago in the name of fighting sex trafficking.

Sen. Josh Hawley (R-Mo.) has been in the vanguard of the effort to neuter Section 230, pushing a bill that would force tech companies to “earn” the law’s liability shield by proving to a supermajority of the Federal Trade Commission every two years that “their algorithms and content removal practices are politically neutral.” It’s a ridiculous idea that would defeat the whole purpose of Section 230, which was to enable companies to enforce their terms of service. Not only do we not want a political body to decide what is and isn’t politically neutral, but any objective measure could be easily gamed. If Twitter removes 100 tweets by neo-Nazis but only 10 by communists, does that mean that Twitter is biased against the far right? Or that neo-Nazis simply spew more hate on the platform?

The bill would put so much power into the hands of a minority of the members of the FTC that it seems unlikely to obtain the bipartisan support needed to make it through the Senate. But as Trump shows, the point here isn’t to change the law. It’s to be able to complain, continually, that the deck is stacked against Republicans — and by doing so, making sure that few if any cards get played.