Last month, a federal judge blocked the Biden administration, as well as some government agencies and officials, from communicating with social media companies about certain content. The White House indicated that it would appeal the decision, but it puts into question how Truth Social, the social media platform that is owned by former President Donald Trump could fit into the equation.
Could Trump continue to maintain the platform as he faces numerous criminal indictments, while at the same time, he is running for president?
“I doubt that former President Trump will be forced to shut down or transfer ownership of Truth Social. Trump is not known for following rules, let alone conventions,” explained Colin Campbell, associate professor of marketing at the University of San Diego’s Knauss School of Business and editor-in-chief of the Journal of Advertising Research.
There is also a very valid concern that this could further erode what little trust remains of the mainstream media.
“People generally see most media as being very partisan. This makes it challenging to agree on common realities and feeds into the notion that facts are malleable,” added Campbell.
Truth Social And The Legal Cases Against Trump
It could further be argued that no criminal defendant in the history of the United States—and perhaps even the world—has ever maintained their own private media network that can respond almost in real-time during a trial.
Yet, Professor Jane Kirtley, director of the Silha Center for the Study of Media Ethics and Law, at the University of Minnesota Law School, said that Trump will not likely be forced to shut down Truth Social.
“Social media platforms are not regulated or licensed—as broadcast TV/radio stations are—by the federal government. And even for those licensed entities, the FCC doesn’t absolutely prohibit issuing licenses or renewing them for felons, much less someone who has only been indicted,” Kirtley suggested.
However, it is still possible that what Trump actually posts on the platform could be problematic.
“Some speech is not protected by the First Amendment: incitement to violence, true threats, obscenity are some of the most common examples,” noted Kirtley. “Libelous falsehoods can invite a civil suit, but there are strong protections for opinion and the broad category of ‘political speech.’ Because of Section 230 of the Communications Decency Act, platforms aren’t responsible for the content of user-generated material, though they are required to remove material that violates copyright law or face possible aiding and abetting actions for copyright violations.”
A separate issue is whether any of his posts might potentially violate any “gag orders” promulgated by the judges in his various cases.
“The judges seem to be treading very carefully here because of First Amendment concerns, but again, ‘true threats’ would be actionable against anyone who posted such material,” added Kirtley.
That could include whether Trump violates an order, for example, engages in witness tampering. In such a case, Kirtley said the former president could be held in criminal contempt.
Another question that hasn’t been addressed is whether a politician—or candidate—can own a media platform, especially one where it could essentially censor any content it disagrees with. However, there is another consideration, namely the financial interest that Trump has in Truth Social.
“Generally speaking candidates are not supposed to have financial interests in companies while in office,” said Campbell. “The reason for this is that it creates a conflict of interest with executive duties. How can laws and the use of public lands and funds be decided when there’s a risk that actions are self-serving? For this reason, politicians generally abdicate management of their finances to a third party who agrees not to tell them how it is invested.”
Of course, Trump infamously didn’t do that.
As Politico.com reported in 2020, Trump had been accused of essentially “fusing his private business interest with America’s highest public office.” Critics called it deeply disturbing, and it isn’t likely to change in the run-up to the 2024 primaries.
“Court filings also show that in many cases Trump’s businesses benefited directly from his actions while in office. I expect such behavior to continue with Truth Social,” warned Campbell.
Truth Social And The 2024 Election: Trump’s Own Broadcast Platform
As it currently stands there are no restrictions on a candidate owning a social media platform either from the Federal Communications Commission (FCC) or Federal Election Commission (FEC).
“However, for broadcast outlets, during the run-up to elections, the various political advertising and equal opportunity rules come into play,” said Kirtley. “It’s worth noting that bona fide ‘news’ appearances do not trigger equal opportunity rules. But again, these rules don’t apply to social media platforms, which, are not regulated.”
As a result, 2024 could be the first time any political candidate has control of a platform to communicate directly to potential voters.
Even if Trump doesn’t win, it could still be good for Truth Social, said Campbell.
“As the primaries heat up, Trump will not only lean on Truth Social as a way to communicate directly with his supporters,” Campbell continued. “But also to use the primaries as a way to repeatedly market the platform and encourage new users.”