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Trump wants a crackdown on Twitter, Facebook, but the law protects them. Is that a good thing?

Nathan Bomey, USA TODAY

Should social media companies bear responsibility for the content that people post on their platforms and should they be allowed to correct what politicians say?

Debate over those questions is reaching an inflection point, as President Donald Trump retaliates against Twitter for fact-checking his tweets.

After threatening to "strongly regulate" social media companies or "close them down," Trump signed an executive order Thursday directing the federal government to review its authority to strip internet companies of their legal protection from liability for content posted on their platforms.

The legal protection stems from a 1996 law called the Communications Decency Act, which treated internet companies like telecommunication companies, not publishers. Much like telecom companies can't be held responsible for what people say on their phone lines, social media companies can't be held responsible for what people post to their platforms.

That provision has enabled them to grow into financial, technological and social powerhouses. But critics say it has come at the expense of serious damage to American democracy in the form of rampant misinformation and uncivil discourse.

Trump is angry about Twitter's decision to post links to fact-checking material alongside his misleading tweets about the reliability of mail-in voting.

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The president, ironically, has been one of the biggest beneficiaries of a system he now seeks to constrict. He has racked up more than 80 million followers on Twitter, where he regularly blasts critics, makes announcements and recirculates often unreliable or false information. In recent tweets, he has promoted, without evidence, a conspiracy theory regarding MNSBC host and former Congressman Joe Scarborough and a claim that mail-in voting will lead to fraud.

Can the president change the law? 

To be sure, experts say Trump likely does not have the authority to cancel legal protections embedded in law. To do that, Congress may need to replace the Communications Decency Act with superseding legislation that would require the president's signature, or government agencies like the Federal Trade Commission would need to interpret the law vastly differently.

But any attempt to circumvent the current law would likely run into opposition in federal court. Trump's administration also reportedly threatened to sue the social media companies, while he said he would seek legislation in addition to his executive order.

Washington, D.C., lawyer David Balto, a former policy director with the Federal Trade Commission and former trial attorney for the Department of Justice's Antitrust Division, said the executive order would amount to “usual bluster by the president” and would have little bite.

“Trump’s efforts aren’t going to go far with trying to take Potemkin-like enforcement efforts with these agencies,” Balto said. “The agencies are extraordinarily well aware of the limits of the law, and any investigation or challenge would receive stiff retribution from a federal court.”

Twitter CEO and co-founder Jack Dorsey

The reality is that the tech companies have vast authority to run their platforms as they see fit due to the Communications Decency Act and the First Amendment, said Philip Napoli, a public policy professor at Duke University and author of Social Media and Public Interest: Media Regulation in the Disinformation Age.

“These platforms have exerted a fraction of the authority they’re entitled to,” he said.

Napoli said the federal government cannot prevent Twitter from adding fact-checking language alongside the president’s tweets.

That’s “not censorship – it’s counter-speech, which is fundamental to how our First Amendment works,” Napoli said. “A corporate entity like Twitter can’t infringe on anyone’s First Amendment rights – only the government can do that.”

How does this executive order change things? 

The president's action casts a spotlight on a burgeoning conflict over whether social media companies should censor certain content, especially political posts, photos and video of a political nature.

While benefiting from the fact that federal law does not allow them to be blamed for content on their platforms, social media companies are expected to argue that they have a First Amendment right to remove content or place fact-checking information alongside content when they want to.

But how can companies that benefit from a law that doesn't treat them as publishers also seek the same First Amendment rights as publishers?

For years, Facebook CEO Mark Zuckerberg said that his company was not a publisher and thus would not take responsibility for the content on the site, as long as it did not violate laws or qualify as dangerous for some reason. In the aftermath of the 2016 election, however, Facebook began taking various steps to reduce the visibility of conspiracy theories and false news articles on its platform.

But on Thursday morning, Zuckerberg told CNBC that he does not believe social media companies should step in to block politicians from speaking their minds.

“I don’t think that Facebook or internet platforms in general should be arbiters of truth,” Zuckerberg said. “Political speech is one of the most sensitive parts in a democracy, and people should be able to see what politicians say.”

Twitter CEO Jack Dorsey said late Wednesday in a tweet that the company is not an "arbiter of truth." He added: "Our intention is to connect the dots of conflicting statements and show the information in dispute so people can judge for themselves. More transparency from us is critical so folks can clearly see the why behind our actions."

The comments by Dorsey and Zuckerberg came after Trump on Wednesday threatened to crack down on social media companies, hinting at the executive order to come.

"Republicans feel that Social Media Platforms totally silence conservatives voices," Trump said on Twitter. "We will strongly regulate, or close them down, before we can ever allow this to happen."

Bipartisan support for change

While Trump's comments have been met with criticism from his opponents, he is not alone in attacking the social media companies.

Indeed, the effect of social media on politics has created a peculiar alliance of sorts between Republicans and Democrats who both have directed their ire at the tech platforms, albeit for mostly different reasons.

“It goes with the territory of companies that provide such a valuable service to the public at large that people poke at them from different sides,” Balto said.

For example, Sen. Elizabeth Warren (D-Mass.), a fierce critic of Trump, has repeatedly criticized Facebook and Google and proposed to break up the companies. She has accused them have having too much power and wielding user data improperly.

U.S. Rep. Alexandria Ocasio-Cortez (D-N.Y.), said Thursday on Twitter that Zuckerberg is "worried that Facebook’s PR operation is falling apart as it’s exposed that their platform relies on white supremacists & disinformation peddlers to be successful."

That there is a common degree of consternation among Republicans and Democrats over social media companies is the principal reason an agreement to regulate them remains a possibility.

How would it work? 

Actually implementing a successful regulatory regime remains fraught with issues.

For starters, regulation risks throttling innovation, which could hamper the American economy. Also, regulating algorithms – which decide what people see on the Facebook News Feed, for example – will be extremely difficult for bureaucrats who move at a slow pace compared with the lightning speed of Silicon Valley.

Part of the problem is that the algorithms that decide what search results you see on Google or the types of posts you see on Facebook are extraordinarily complex.

“There’s no one person within these companies really that has a full grasp of how these things work,” Napoli said.

Napoli said one proposal that could be successful is some form of independent auditing board that would monitor the algorithmic decisions made by the social media companies.

“I think the algorithm coming under regulatory oversight is a distinct possibility,” he said.

Complicating matters in the president's push to crack down on social media companies is that “traditional conservatives” won’t support burdensome regulation due to their free-market sensibilities, Balto said.

And while proposals to break up the tech companies have proven popular among certain Democrats, it’s unclear whether such a move would help improve the facticity of social media or eliminate debate over platform censorship, Napoli said.

“Is there any perfect solution? he said. "Not that I can see."

Follow USA TODAY reporter Nathan Bomey on Twitter @NathanBomey.

This article originally appeared on USA TODAY: Trump attacks social media: Can Twitter be blocked from fact checking?