Or can they? Facebook founder and CEO Mark Zuckerberg told Fox’s Dana Perino that Twitter made a mistake in imposing fact checks on its most famous customer and biggest draw. Social media platforms can’t set themselves up as the “arbiter of truth,” Zuckerberg says, even when pressure to corral Donald Trump’s stream-of-consciousness expressions continues to build:

“We have a different policy than, I think, Twitter on this,” Zuckerberg told “The Daily Briefing” in an interview scheduled to air in full on Thursday.

“I just believe strongly that Facebook shouldn’t be the arbiter of truth of everything that people say online,” he added. “Private companies probably shouldn’t be, especially these platform companies, shouldn’t be in the position of doing that.”

Zuckerberg made the comment after President Trump warned social media giants that the federal government could “strongly regulate” or “close them down” if they continue to “silence conservative voices.”

“I have to understand what they actually would intend to do,” Zuckerberg said in response to the president’s warning. “But in general, I think a government choosing to to censor a platform because they’re worried about censorship doesn’t exactly strike me as the the right reflex there.”

Jazz and John both wrote about the rumored EO and what its impact might be. Zuckerberg’s warning makes some sense here, but perhaps more to social media platforms themselves than to the White House. As my friend and colleague Katie Pavlich points out in the introduction of this clip, social-media platforms have consider legal immunity over content issues on the basis that they do not exercise editorial judgment over what gets published. Go too far down this road, and suddenly libel and slander attorneys are going to see gold mines in the deep pockets of the social-media platforms, including Twitter and Facebook.

Facebook’s not immune to that either, despite its CEO’s protestations. Zuckerberg also made the same argument to CNBC’s Andrew Ross Sorkin in a clip aired this morning on Squawk Box, but added some nuance to that position. “There are lines,” Zuckerberg adds, “and we will enforce them”:

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

Although Facebook does use independent fact-checkers who review content on its social networks, the point of the fact-checkers is to “really catch the worst of the worst stuff,” Zuckerberg said.

“The point of that program isn’t to try to parse words on is something slightly true or false,” he said. “In terms of political speech, again, I think you want to give broad deference to the political process and political speech.”

However …

The company, however, does have lines that no one, including politicians, is allowed to cross, Zuckerberg said. No one is allowed to use Facebook to cause violence or harm themselves, or to post misinformation that could lead to voter suppression, Zuckerberg said.

“There are clear lines that map to specific harms and damage that can be done where we take down the content,” he said. “But overall, including compared to some of the other companies, we try to be more on the side of giving people a voice and free expression.”

No one will dispute prohibitions against violence and self-harm, but those don’t cross First Amendment lines anyway. What, though, constitutes “misinformation” and “voter suppression”? Can’t Twitter argue that they are enforcing these same ambiguous standards? They are also setting lines, and then enforcing them … in a weenie-ish fashion, perhaps, but still.

That’s why Trump’s EO will take aim at the legal-immunity clause of Section 230 as a result of the exercise of these editorial functions:

President Trump is preparing to sign an executive order Thursday that could roll back the immunity that tech giants have for the content on their sites, according to two people familiar with the matter.

Trump’s directive chiefly seeks to embolden federal regulators to rethink a portion of law known as Section 230, according to the two people, who spoke on the condition of anonymity to describe a document that could still evolve and has not been officially signed by the president. That law spares tech companies from being held liable for the comments, videos and other content posted by users on their platforms.

The law is controversial. It allows tech companies the freedom to police their platforms for abuse without fear of lawsuits. But critics say those exceptions have also allowed some of Silicon Valley’s most profitable companies to skirt responsibility for the harmful content that flourishes on their online platforms, including hate speech, terrorist propaganda and election-related falsehoods.

The order would prompt federal officials to open a proceeding to reconsider the scope of the law, the people familiar with the document said. A change could mean potentially dramatic free-speech implications and wide-ranging consequences for a broad swath of companies reliant on doing business on the Internet.

This strikes me as both a bad idea and unconservative in the traditional sense, but also a strategy that was doomed to be tried in an environment where Big Tech chooses political sides. A far smarter and more conservative approach would have been an application of anti-trust enforcement before Big Tech companies consolidated their economic and political power, but conservatives have been blind to the risks of laissez-faire anti-trust policies for decades now. Now that the political and economic risks have become apparent and acute, it’s too late to use anti-trust regulation, so we get back-door efforts like a Section 230 EO to force them into either retreat or bankruptcy. That heavy-handed regulatory brushback pitch will only last as long as a Republican administration remains in place, however, and this will give Big Tech even more reason to stick its thumbs on the scale to prevent that outcome.

At least Zuckerberg seems to have gotten enough of the message to get out in front of the EO and claim it shouldn’t apply to Facebook. That’s a reaction to incentive, and a signal that Trump’s EO might actually have some bite. Perhaps the other platforms will dial back their intrusiveness, but I suspect that they have put resources aside for precisely this fight. They knew that this was inevitable too, and probably for longer than the Trump administration has.

Update: I have to say that this point slipped my mind earlier, but Ben Shapiro is correct about the impact of playing with Section 230:

Here's the inevitable effect of destroying §230 of the CDA: all comments sections will be taken down. No website has the resources to actively edit all comments in order to shield themselves from liability, and no website is willing to leave comments entirely standards-free.

— Ben Shapiro (@benshapiro) May 28, 2020

I think you can even extrapolate it to saying that it will destroy all social media eventually, including YouTube and Facebook, where users provide the content. That’s why Congress included Section 230 in the first place.

Update: If you want a rational rundown of Section 230, its intent, and how this EO is likely to either fair or make things worse, don’t miss this threat from our friend Gabriel Malor:

I expect we'll be talking a lot about this in the next few days, so here's a head start: there is no platform/publisher distinction.

All CDA § 230 does is protect a website from liability for user content & user moderation. It doesn't matter if the website is also a publisher.

— Gabriel Malor (@gabrielmalor) May 28, 2020

That's all CDA § 230 stands for: a website or web service cannot be held liable for the content or moderation of its users.

There is no "non-partisan platform" requirement in the law. And all you had to do to find that out is read the very short operative section of the law: pic.twitter.com/iAATKLSDGh

— Gabriel Malor (@gabrielmalor) May 28, 2020

Read the whole thing, while we still have comboxes.