Are Twitter's Policies an Affront to our First Amendment Rights?

 

I never thought I would agree with a Tweet published by Donald J. Trump, Jr., but it is true that we are, in fact, entering into an Orwellian future where it will be much more difficult to express our own point of view.

Before anyone misconstrues this post as a moral defense of President Trump, let me state for the record that the President is clearly a traitor to our Constitution who is guilty of sedition for organizing the storming of the Capitol and should be convicted and hung from the neck until dead. In spite of that, and in spite of the fear that he may foment additional unrest, his speech is protected by the First Amendment and the Twitter ban runs afoul of those rights. He should be allowed to say whatever he wants right up to the moment that the rope snaps his neck.

So, Twitter is already censoring free speech by suspending his account, and one could argue that as a private company Twitter may have the right to moderate all uses of their platform. And, this could be okay if people know clearly upfront that Twitter is not a free speech platform. Twitter is like a private meeting hall and technically the company has the right to kick people out if they want to. However, this won’t stop those people from going to a different meeting hall that is friendlier to them. In fact, this is exactly what is happening. Parler (https://www.parler.com/) is a web application similar to Twitter launched by well-heeled Trump supporters such as the Mercers (https://en.m.wikipedia.org/wiki/Rebekah_Mercer). However, in a clear sign of things to come, the Parler app has been banned by Apple and Google and Amazon Web Services has canceled their hosting contract.

The next front in the war to regulate Trumpian speech will center on Section 230 of the Communications Decency Act (https://en.m.wikipedia.org/wiki/Section_230). At the heart of Section 230 currently are protections of free speech:

"No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider."

However, there are efforts afoot to strip companies like Twitter and Facebook of these protections which would make them potential targets of lawsuits designed to squelch certain points of view. Ironically, President Trump has called for these protections to be removed and even vetoed the Defense Spending Bill to emphasize the point (the veto was overturned). If these protections are revoked, companies will be forced to ramp up the moderation of the content providers and will be much faster to suspend accounts that are seen to be spreading polemical views. In other words, absent Section 230, Trump would have faced a Twitter ban years ago.

Additionally, the FCC has publicly affirmed its authority to interpret Section 230 as they deem fit (The FCC's Authority to Interpret Section 230 of the Communications Act | Federal Communications Commission), stating that the FCC can feel confident proceeding with rulemaking to clarify the scope of the Section 230 immunity shield. How might this translate into policy? That will depend entirely on the discretion of the FCC Commissioner who acts at the pleasure of the President of the United States. For example, could the FCC remove Section 230 protections from any Twitter posts that are deemed to be based on inaccurate information? How about ad hominem attacks that could be construed as slander? All of these things are possible, and they would subject the host (i.e. publically traded companies like Twitter and Facebook) to massive civil liability.

Do we want to give an appointed public servant the power to restrict wide swathes of previously accepted speech? Do we want to give a U.S. President this authority? Even this blog could wind up getting deleted if Google determined that something that I have written potentially exposes them to liability under a new interpretation of Section 230.

How far this goes is hard to predict, but I can envision a future where search engines like Google or Bing are held liable for linking to websites or commentary that has been previously flagged by the FCC as being unprotected speech out of a fear that the act of serving pages with questionable content could, in and of itself, expose the company to liability.

All of this will have an extreme, Orwellian, chilling effect on freedom of expression on the Internet, and the freedoms enshrined in the First Amendment in general. It will force commentators with viewpoints far diverged from the mainstream into a virtual cyber "wilderness" where they will be all but impossible to find.

What can be done to fix this?

• Pass legislation to prevent Google and Apple from blocking applications for political reasons.
• Pass legislation SEPARATE from the Communications Act of 1934 to enshrine the protections from liability present in Section 230, thereby taking the issue out of the hands of the FCC.

Remember, as John Adams so eloquently stated, "Liberty, once lost, is lost forever." If we are going to err in this, we must err to the conservative and protect the vibrant (and sometimes ugly) online debate forums that now exist.

To further explain how important Section 230 is, and why it needs to be protected, I offer the following infographic (courtesy of the EFF):