Social Media vs the Constitution

Yves here. While I philosophically favor what Ilargi is saying, it doesn’t fly in the US legal system. The US has regularly supported censorship despite our First Amendment pretenses. The list on this site is far from complete but includes noteworthy past episodes. For instance, by odd happenstance, I had a drink with Dan Rowan of Rowan & Martins’ Laugh-In fame.on his houseboat in Paris. Rowan told what I am sure were favorite stories of his about his regular fights with censors over what they planned to air. And my recollection is he was often dealing with government officials directly, as opposed to in-house minders at NBC.

By Raúl Ilargi Meijer, editor at Automatic Earth. Originally published at Automatic Earth

An ancient Latin saying goes: “Quod licet Iovi, non licet bovi” (what is permissible for Jupiter, is not for an ox). It feels very much on topic when social media are concerned. And as the heat over their censorship is turned up, it may well be the decisive factor.

Reuters reiterates today that on May 23, Manhattan US District Judge Naomi Reice Buchwald ruled that Donald Trump’ Twitter account is a public forum and blocking Twitter users for their views violates their right to free speech under the First Amendment. The same, says the ruling, applies to other government officials’ accounts.

On August 10, the Knight First Amendment Institute at Columbia University sent the Justice Department a list of 41 accounts that remained blocked. Since, at least 20 have been unblocked. Interestingly, the same Justice Department has stated that the ruling was “fundamentally misconceived” arguing Trump’s account “belongs to Donald Trump in his personal capacity and is subject to his personal control, not the control of the government.”

Potentially even more interesting is that “the Internet Association, a trade group that represents Twitter, Facebook Inc,, and Alphabet Inc, filed a brief in the case earlier this month that did not back Trump or the blocked users but urged the court to “limit its decision to the unique facts of this case so that its decision does not reach further than necessary or unintentionally disrupt the modern, innovative Internet.” “

Yeah, they would like that, to make this about Trump only. But that would be strange, because the First Amendment doesn’t only apply to Trump (and/or government officials). It applies to everyone, including Twitter, Facebook, Amazon, and Alphabet. Or does it? Well, not according to the Internet Association:

“Despite any First Amendment status that this court might find in the ‘interactive spaces’ associated with President Trump’s account, Twitter retains authority to revoke access to both his account and the account of any user seeking to comment on President Trump’s account.”

Hmm. So Trump can’t block people from his own Twitter account, but Twitter can do whatever it wishes to that same account. Apart from, you know, banning him, even though many in the ‘left-leaning’ company would like to do just that. Then again, Trump’s 54 million followers make it a profitable account for Twitter. Still, this can obviously not stand. There are no different constitutions for different parties. And they’re not done:

“..there is a considerable risk that any decision that may recognize isolated public forums on Twitter will be misunderstood to hold that Twitter, too, can be subject to First Amendment scrutiny. …Twitter itself is not a state actor when it blocks or withdraws access to its account-holders or users, and it is therefore not subject to the First Amendment’s restraints.”

See? According to the Internet Association, the First Amendment doesn’t apply to its ‘members’, it applies to state actors only. It feels encouraged to make such statements directly by the wording of Judge Buchwald’s ruling. Put differently, Donald Trump’s Twitter account is a public forum but all the rest of Twitter is not (except for other officials).

Now, I’m not a lawyer, but it seems obvious that these people may well be shooting themselves in the foot after first having put it in their mouths. To date, the Internet Association’s members have been able to picture themselves as private enterprises not under the same rules as public ones.


But how much longer is that a feasible attitude? As I said recently, Twitter and Facebook have become the no. 1 warning system in cases of emergencies and disasters, and banning or blocking people from it is as dangerous, life threatening even, as banning people from having radio’s, phones or TVs.

When the first radio’s, phones, TVs were introduced, other warning systems were in place. But over time they became the warning system. As I put it earlier, first you’re an entity, and then you become a utility. And the US judicial system has acted decisively on this in the past, though by no means perfectly.

Twitter, Facebook, Google seek to find the magic sweetspot where they can do whatever they damn well want while raking in billion after billion. But they’re as much behind the curve as the political and legislative systems are. They have already fallen victim to their own success, but they either don’t realize it or try to obfuscate it.

Meanwhile, they’re still banning, shadowbanning and blocking to their heart’s content. They should understand that cannot go on. They’re not some Harvard hobby club anymore. They’re killing off the very legal protection they claim to be protected by, because their position in society shifts. It takes a while, largely because their rise has been meteoric, but politics will catch up; it has to.

Former UK ambassador to Uzbekistan Craig Murray wrote yesterday:

Facebook has deleted all of my posts from July 2017 to last week because I am, apparently, a Russian Bot. For a while I could not add any new posts either, but we recently found a way around that, at least for now. To those of you tempted to say “So what?”, I would point out that over two thirds of visitors to my website arrive via my posting of the articles to Facebook and Twitter. Social media outlets like this blog, which offer an alternative to MSM propaganda, are hugely at the mercy of these corporate gatekeepers.

As for us, the Automatic Earth, Facebook closed our 9-year account a while back without one word of warning or explanation. We asked many times why, but never received an answer. Sent documents to prove who we are, nothing. Gone 1000s of followers, gone traffic, gone revenues. It’s simply too much power for a bunch of geeks, now aligned with the Atlantic Council, to have. It must be broken up.

Murray on the Atlantic Council: “..extreme neo-con group part funded by NATO and whose board includes serial war criminal Henry Kissinger, Former CIA Heads Michael Hayden and Michael Morrell, and George Bush’s chief of Homeland Security Michael Chertoff, among a whole list of horrors.”

The companies could try and hide behind the fact that they’re international, and can’t be defined by US law only, but that would be a risky proposition. Julian Assange has by and large been denied his First Amendment rights by the current administration because he’s not an American, while Christopher Steele was granted his despite not being an American. Wobbly ground, that.

But yes, stay American and Baby Bells loom in your future. Not that this is the only issue Silicon Valley’s legal teams will have to tackle with:

Sammy Ketz, AFP’s Baghdad bureau chief, wrote yesterday:

.. it is not the news organisations who reap the profits but internet platforms, which help themselves to our reporting without paying a cent. [..] The media have endured a lot of pain for a long time before reacting to the financial drain, struggling with the consequences rather than the cause. They have laid off staff almost to the point of absurdity. Now they are demanding that their rights are respected so they can carry on reporting the news. [..]

We can no longer swallow the lie spread by Google and Facebook that an EU directive on such rights would threaten people’s ability to access the internet for free. Free access to the web will endure because the internet giants, which now use editorial content for free, can reimburse the media without asking consumers to pay.

Difficult? Impossible? Not at all. Facebook made $16bn in profits in 2017 and Alphabet (Google’s parent company) $12.7bn. They simply have to pay their dues. That is how the media will survive and the internet titans will be contributing to the diversity and freedom of the press they claim to support.

The Internet Association members don’t appear to get it yet, but their opportunity windows are fast shuttering. There is no way for them to keep on doing what they have, as they have, for much longer. They’ve drawn the ire of Donald Trump, and though they may tend to focus more on denouncing him, they’d better pay attention.

Because they don’t hold the cards. Or rather, they’ve been overplaying them. We know they’ve been meeting with the explicit goal of coming up with a general strategy for the November US mid-term elections. We also know they are left-leaning. And that they’ve banned and blocked many accounts.

All it takes is for a judge or the president to label them a utility, and put them in the same legal frame as a phone company or broadcaster. Because if they can’t be objective, while they are the no. 1 source of news for many people, the potential influence of their secret algorithms and obvious political bias is just too great.

And that is obstruction of democracy, and in the end, justice. As I wrote last week in The Shape of Trump to Come:

Trump will end the ‘monopolies’ of Facebook, Google, Twitter et al. [..] .. you simply can’t have a few roomfuls of boys and girls ban and shadowban people with impunity from networks that span the globe and reach half of the world’s population on the basis of opaque ‘Terms and Conditions’ that in effect trump the US constitution the way they are used and interpreted. Whether they are private companies or not will make no difference in the end.

I have the impression that they think they can fight this. All those billions buy good lawyers. But in the end, you can’t have the president under one set of constitutional rights, and Jack Dorsey or Mark Zuckerberg under another.

Sure, the intelligence community may protest whatever ‘solution’ the White House or DOJ comes up with. But they, too, must realize that elections that are very obviously skewed towards one side are a huge danger to America. And social media have obtained the power to skew them. Much more than a few bucks worth of Russian ads on their podium, that whole story is entirely insignificant compared to America’s ‘own’ social media.

Trump can simply say: if my account must be open, let that be true for everybody else’s too. Forbid any and all banning and blocking unless and until a judge permits it on constitutional grounds, on a case by case basis.

Judge Buchwald has opened that door by declaring Trump’s Twitter account a public forum. That speaks to the status of Twitter -and Facebook et al- in American society. She can’t take that back.

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  1. YankeeFrank

    Okay, so let me get this straight: corporations “are people” ONLY insofar as that determination gives them autonomy to do whatever they want. It doesn’t constrain them from taking away the constitutional rights of other, actual people, or impose any duties of citizenship on them.

    Whatever relationship there once might have been between justice and the law…

    1. Pelham

      What’s more, consider this in regard to the Internet Association’s statement that “Twitter itself is not a state actor when it blocks or withdraws access to its account-holders or users, and it is therefore not subject to the First Amendment’s restraints.”

      That may be true. But when it does undertake such actions — doing anything at all that affects the content it carries — it becomes a publisher, not a platform. As a publisher, it has a right to monkey all it likes with its content, but it also becomes legally liable for that content. As such it should be subject to the same laws that apply to all other publishers, including newspapers. Of course, this would either destroy Twitter’s and Facebook’s business models or smother them under an avalanche of libel lawsuits.

      Either way, the world would be better off.

    2. Bobby Gladd

      See the recently re-introduced GOP “FADA” bill (First Amendment Defense Act).

      Thanks to Citizens United, money is now “speech” (One Dollar One Vote). Coming soon, evangelical-favored bigoted acts will be “speech.”

      A couple of weeks ago I heard some dude make the MEGO argument that his unfettered right to weaponry was not only a 2nd Amendment matter, his Jones for firearms was also protected under his 1st Amendment-protected “free speech.”

      Now, FADA, as currently drafted is a transparent attempt to overturn the SCOTUS marriage equality decision, VP Pence would surely favor expanding its scope against the secular civil rights of disfavored minorities (in particular those Icky Gays).

      Hit my link, read it. Y’all are smart people. Savor the possibilities.

    3. RBHoughton

      I think corporations have thought they could contract out of legal liability with those Lilliputian script light grey terms they require users to sign. Good to see that cannot really and legally be the case.

  2. Carolinian

    Presumably Facebook would say that if you don’t like our policies then start your own Facebook. And one should point out that it was the government itself in the person of Mark Warner who pushed Facebook toward the recent censoring. From a free speech standpoint enacting more government regulation could be out of the frying pan and into the fire. Will governments tell Facebook they should be open to all speech except “hate speech” which those governments will then proceed to define? Back during the Laugh In period the FCC was very much involved in what could or could not be said on television. The justification was that the broadcasters were making use of the public airwaves and that gave the government the right to regulate their behavior and even enforce the since repealed Fairness Doctrine that would ensure ideological even handedness.

    In other words it’s a complicated question like all free speech matters but certainly worth more discussion. Thanks for the above.

  3. Bill Smith

    “Julian Assange has by and large been denied his First Amendment rights by the current administration because he’s not an American, while Christopher Steele was granted his despite not being an American.”

    The claim on Assange is that the government has emails of his with more than one other person in which they claim he conspired to steal government secrets. That is he helped others decide what to steal. If true that’s quite different than what the First Amendment protect.

    But overall I agree with the post. These corporations are shooting themselves in the foot. Short term gain for a long term loss. Eliminate quarterly reporting? :)

  4. freedomny

    Twitter should be a public utility. Tweets are just “conversations” that others are invited to eavesdrop on…and comment if they so choose. What next – banning public discussions?

  5. RBHoughton

    Very refreshing read. Many thanks NC.
    May I please commend today’s Guardian to all for the review of Alan Rusbridger’s book which touches on the same matters.

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