President Donald Trump sent out two tweets in May about voting by mail that Twitter later flagged for misinformation.

Since then, Trump and his allies have been fighting to stop social media platforms from doing so, but experts say there are legal challenges ahead and recent efforts have been aimed at the wrong organizations.

"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!"


Trump sent out those tweets on May 26, which Twitter labeled with an exclamation point and a link to “get the facts about mail-in ballots.”

But getting flagged by the social media platform only became a rallying cry.

On Sept. 2, Indiana’s Attorney General Curtis Hill, a Republican, and the attorneys general of Texas, Louisiana and Missouri sent a letter to the Federal Communications Commission “to help prevent the suppression of political speech on digital platforms such as Facebook, Twitter and YouTube.”

The attorneys general “take aim at immunity provisions" given to social media companies to maintain justifiable restrictions on speech. The letter states that “platforms may continue to preserve public spaces free of objectively obscene, harassing, and harmful material without unduly expanding immunity to conduct that tramples the core First Amendment speech.”

In response to make voting safer amid the COVID-19 pandemic, officials in California, the District of Columbia and Vermont have adjusted state statutes to allow for voters to receive ballots in the mail automatically, according to research gathered by The Brookings Institution.

Countless studies have found that there is no partisan advantage to either party and that there is little to no evidence of fraud when voting by mail, Marjorie Hershey, a professor emerita of political science at Indiana University Bloomington, previously said.

For example, a recent study reviewed mail-in ballots over a 10-year period and found that out of 2 billion ballots sent through the mail there were 142 incidents of fraud, Hershey previously said.

“These numbers are so small as to be insignificant,” Hershey said.

After Twitter flagged the posts, Trump signed an executive order stating a 1996 law – which states that internet service providers can’t be held liable for what users post – shouldn’t apply if a social network edits posts, like adding a label, said Anthony Fargo, the director of the Center for International Media Law and Policy Studies at Indiana University Bloomington.

Experts have since said that Trump’s executive order will face legal challenges and have called it unconstitutional.

The letter points to Twitter fact-checking Trump’s tweets and to YouTube and Facebook removing posts “by licensed physicians, that, in their view constitutes ‘misinformation’ about COVID-19."

Simply put, Fargo said, the letter does not have standing with the FCC.

“It’s problematic in a lot of different ways,” Fargo said.

The FCC can regulate how people connect to the Internet, but it does not have authority over what is posted online, Fargo said.

“It doesn’t appear likely that the FCC has the authority to do what Curtis Hill and others are asking it to do,” Fargo said.

Aside from that, Fargo said that an argument can be made that under the First Amendment social media platforms can add labels to posts or provide links to other sources similar to how legacy media select which letters to the editors to publish and to edit those letters.

But, there isn’t a whole lot that can be done to regulate misinformation on social media platforms, Fargo said. Any regulation that is perceived to go beyond managing misinformation will likely get challenged as a violation of the First Amendment and make its way to the Supreme Court, he said.

The Supreme Court is known to act based on precedents, or rulings from previous cases, and the last time there was an internet-related First Amendment case was in 1997, in which the court ruled – in the simplest terms – that the internet is a democratic place and “should have the most freedom possible,” Fargo said.

But, letters like the one signed by the attorneys general and Trump’s executive order is asking social media platforms to take down information that is offensive but without discriminating against some content, Fargo said.

“You can’t tell them to do both. It’s not consistent,” Fargo said.

Congress has tried to rework the 1996 law – which states that internet service providers can’t be held liable for what users post – to hold social media companies accountable for what is posted, Fargo said. But, with billions of users on Facebook alone, expecting social media companies to review each post and remove offensive content is impossible, he said.

Lake County Republican Party Chairman Dan Dernulc said that while the country has become “dangerously rude” on social media platforms, it would be challenging to regulate social media posts fairly.

If social media platforms start to fact check posts, “it better be with both” political parties, Dernulc said.

“You have to make sure fair across the spectrum. You still have to have that free speech element. It is in our constitution," Dernulc said. “The bottom line comes down to, we have to be careful. How that’s remedied, I don’t know.”

Still, Lake County Democratic Party Chairman James Wieser said “reasonable regulations are legitimate and almost necessary” given the increase in QAnon posts – a sprawling set of internet conspiracy theories that allege, falsely, that the world is run by Satan-worshiping pedophiles who are plotting against Trump while operating a global child sex-trafficking ring.

“I’m a strong proponent of free speech ... but those kind of things just don’t belong. They are not examples of free speech,” Wieser said.

Not to mention foreign interference and hacking attempts in the election process by Russia and China through virtual channels, Wieser said.

“That just begs to be controlled,” Wieser said.

Ultra-conservative attorney generals have been “stepping in where they don’t belong” and Hill specifically has been on the “wrong side on every issue,” Wieser said.

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