There's a Future Where Trump is a Great First Amendment President—and Facebook Gets a Pulitzer | Opinion

By escalating his personal skirmish with Twitter into an all-out political war with the social media companies and their special legal protections, President Trump has inadvertently opened a path for America to repair the misinformation ecosystem on social media, including its most pernicious form - foreign governments promoting propaganda to interfere in our elections. He even may trigger a civic revival.

All that needs to happen now is for Democrats in Congress to take up Trump and his supporters on their complaints and push through a bipartisan repeal of Section 230 of the Communications Decency Act, which protects social media companies from most legal liability as publishers. As several commentators have pointed out, this may hurt Trump more than it helps him, which is a big motivator for Democrats. But more importantly, a repeal of Section 230 could start a domino effect that will end with a healthy reset on how those platforms are used and viewed by the country—and may even give an unexpected boost to real critical journalism.

The CDA currently supports an absurd distortion in how Twitter, Facebook and other social media platforms are characterized and therefore viewed by the public. By treating them more like phone companies than publishers or other media outlets, it makes sense that social media companies would take on little to no responsibility for the content of the conversations that take place there. This content agnosticism also happens to fit neatly with the social media platforms' simple and incredibly lucrative business model—the more data of any kind that goes across their platform, the more revenue they make.

Despite the outcry over foreign interference in the 2016 election and the unceasing partisan cries each accusing the other side of lies or "fake news," the federal government has backed off from any real change. Instead, the CDA framework continuously endorses the idea that each tweet, post, or link is just some amount of data traveling across a wire, with inherently equal content value.

Anyone in the marketing business, however, knows that framework is nonsense - content comes with the agenda of its creators. That agenda could be purely informational, but most of the time it has at least a partial financial, political, or other ulterior motive. These motives should inform how we characterize the social media platforms. When you say "happy birthday" to your friend using Facebook Messenger, then yes, Facebook is like a phone utility. But when an "influencer" with millions of followers posts about a product on Instagram, or the president posts political messages on Twitter, then those platforms are serving as what marketers recognize as "channels" – more like TV networks than phone systems, in the days when just a few networks ruled the airwaves.

With a repeal of Section 230, Congress will quickly improve our civic discourse on social media, in at least three important ways.

First, it will signal to the American public that there is no such thing as content neutrality just because the content exists on the Internet. We are long past any such utopian vision. Politicians posting on social media have political biases. Companies use it to advertise to us, sometimes with specious claims. Hostile foreign intelligence services are posting misinformation with the purpose of undermining us, or even controlling their own citizens.

Second, it will put the dominant social media platforms into their appropriate place as a cultural touchstone. They are businesses, in favor of whatever gets the most attention and drives revenue. More to the point, they are American businesses, dominating and making money from advertising and to some extent from subscriptions – much like the other media companies that preceded them.

Finally, it will force the social media platforms to fall back on the First Amendment for protection. Facebook, for example, already has argued that it deserves the legal protections of a publisher, without having the responsibilities of a publisher. Repealing the CDA will remove that contradiction. It will not destroy them or require them to censor content, but it will force Facebook, YouTube, and other dominant channels to implement changes to shield themselves from liability and become more responsible members of the wider media ecosystem.

The minute that CDA is repealed, the social media platforms will start posting disclaimers on their content that will remind users to view content with more skepticism. Twitter, for example, rather than trying to decide whether to "fact check" individual tweets from the president, would likely choose to display a disclaimer overlaying each of his posts or his entire account, reminding people to view it as political speech. They would need to do the same thing with the personal accounts of any other elected official or candidate who chooses to use Twitter as personal megaphones. Nothing would need be censored, it would just be labeled as political speech, just as when paid political ads appear on a television channel.

Facebook will stop dancing around the issue of its responsibility as a giant propaganda machine, and will likely implement a more comprehensive labeling system, clearly identifying videos as news only if they come from legitimate news outlets, providing more robust linking to those outlets (which will benefit their bottom line as well) and imposing stricter requirements identifying sources of ads. People will still spread misinformation, but it will become easier to trace the agendas behind them.

In time, these changes may encourage Facebook, Twitter, Google / YouTube and others to actually build out full-blown news and editorial departments, walled off from their advertising departments. One day we may see Instagram creating serious photojournalism, YouTube producing news documentaries, and (like Netflix winning its first Oscar) Facebook winning its first Pulitzer Prize.

Perhaps this will not be quite as convenient or lucrative a business model for the social media channels, but it will certainly be a healthier one for the country. It will also be Donald Trump's unintended legacy. If Congress repeals the CDA, then years from now the most divisive president in our history, who called the press "the enemy of the people," will get credit for a renaissance in real news and informed civic debate that brought the country closer together.

Keith Emmer is a lawyer and media consultant.

The views expressed in this article are the author's own.​​​​​