Daily Archives: January 23, 2021

Re Money (and the lack of it) talks, Shirley Leungs Jan. 12 front-page commentary: Corporate campaign contributions have been blessed by the Supreme Court as free speech and justified as a legitimate expression of corporate values. But theyre fundamentally different from the small contributions we make to candidates who reflect our values and aspirations. Big money is about a different set of values and aspirations influence and control. To ignore this, as the Supreme Courts Citizens United decision did, is to give license to expensive speech in the name of free speech.

If withholding money from the worst actors in Congress surrounding the events of Jan. 6 is all that we do, shame on us. We need an examination of the role that money plays in politics, and that role is corrosive.

Basic fact: To serve in Congress, you need to spend hours daily reaching out to potential donors. Both parties have call centers the sites were recently targeted for pipe bombs near the Capitol so that their members can take a break from being our voices in Washington to fuel campaigns and to gain influence because of the size of their war chest.

Elections require an end to the pay-to-play disenfranchisement of the many by the few. Elections are a public good worthy of protection from those who would bend it to their interests.

Jay Kaufman

Lexington

The writer is a former member of the Massachusetts House of Representatives and founding president of the nonprofit Beacon Leadership Collaborative.

Link:
We still give license to expensive speech in name of free speech - The Boston Globe

As the new Biden-Harris administration assumes power, the most basic American freedom of speech and expression is under unprecedented threat.

For the first time ever, I am concerned about my freedom to do my work, to run a policy institute addressing issues of culture, race and poverty from a conservative perspective.

Technology the internet which was largely nonexistent just 25 years ago, now plays a huge role in our lives as a tool of communication.

In a survey just published by the Pew Research Center, 86% say they often or sometimes get their news from a digital device smartphone, tablet or computer. This compared with 68% who say they often or sometimes get their news from television, 50% who get it from radio and 32% who get it from print publications.

According to Statista.com, the United States has 223 million Facebook users, almost the size of the entire U.S. population over age 18. Per Pew, 22% of U.S. adults use Twitter.

These developments have put enormous power at the disposal of technology firms over what we see and read.

Power alone doesnt worry me. Exclusive power, power to control, does.

The decision by Twitter to kick the president of the United States off of Twitter, disconnecting him from the 89 million who follow him, is mind-boggling.

President Trump has noted, with total legitimacy, that he turned to social media as his platform of preference to communicate with the country because of widespread bias in the mainstream media.

What gives the technology companies so much discretion over communication, the oxygen of our free country?

This comes from a provision of the 1996 Communications Decency Act that was passed to set the ground rules for the powerful new technologies that were emerging. Technology companies are protected from liability for the content they carry: The liability exists with whomever provided that content. But they were also given discretion over what they choose to carry.

The discretion part comes from logic that the operators of these platforms should be able to refuse truly inflammatory, dangerous content. But what about content that is normally protected by the First Amendment?

Jack Dorsey, CEO of Twitter, appointed himself judge and jury, deciding that President Trump incited the assault on the Capitol building and banning the president from Twitter for life.

We know that President Trumps own words were that the demonstration on Capitol Hill should be peaceful. The point is, if Donald Trump broke the law, this should be determined through legal channels, not by the subjective decision of a businessperson with a net worth of some $12 billion accrued because of American freedom.

I produce a weekly television talk show, CURE America with Star Parker. The show was booted off Vimeo because the far-left Southern Poverty Law Center identifies one of our Christian advertisers as a hate group and one pastor said that homosexuality is a sin.

Now quoting the Bible, expressing views of a believing Christian, is out of bounds banned from the nations major media platforms?

We must recognize that our nations most precious commodity, our freedom to speak, to act and to assemble, is seriously being threatened.

Because those controlling these technology companies disproportionately have political sympathies to the left, it is the freedom of conservatives that is most seriously under siege.

Fortunately, many are now concerned.

The argument is made that First Amendment speech protections only pertain to government action, not private companies. But technology has enabled a concentration of private power not previously imagined.

The Communications Decency Act could be amended such that speech on technology platforms receives the same protections as all speech protected by the First Amendment.

Another possibility would be to amend the Civil Rights Act to include those with religious conviction based on teachings of Judaism and Christianity as a protected class.

Conservatives must push for new law and new platforms.

Star Parker is president of the Center for Urban Renewal and Education and host of the new weekly news talk show CURE America with Star Parker.

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Conservatives worry about threat to free speech - Boston Herald

It seems likely that if and when President Trump is put on trial in the Senate for high crimes and misdemeanors, his lawyers will argue that the president was exercising his First Amendment right to free speech in the weeks after the electionand, as a consequence, his words cannot form the basis of an impeachable offense. Senators should not take this argument seriously.

By the time of a Senate trial, it is possible that the House of Representatives will have adopted additional articles of impeachment. But it is notable that the article of impeachment that the House has adopted thus far focuses on things the president has said:

In the months preceding the Joint Session, President Trump repeatedly issued false statements .... Shortly before the Joint Session commenced, President Trump, addressed a crowd at the Ellipse in Washington, D.C. There, he reiterated false claims .... He also willfully made statements that, in context, encouragedand foreseeably resulted inlawless action at the Capitol ....

President Trumps conduct on January 6, 2021, followed his prior efforts to subvert and obstruct the certification of the results of the 2020 Presidential election. Those prior efforts included a phone call on January 2, 2021, during which President Trump urged the secretary of state of Georgia, Brad Raffensperger, to find enough votes to overturn the Georgia Presidential election results and threatened Secretary Raffensperger if he failed to do so.

At least some of the speech included in this article of impeachment would be constitutionally protected under the First Amendment if said by a private citizen. Some scholars have argued that, as a consequence, this speech cannot be a constitutionally valid foundation for a House impeachment or a Senate conviction, and that the president has a reasonable legal defense in his impeachment trial that his alleged actions were protected under the First Amendment. Even if senators are inclined to acquit the president, they should forcefully reject this line of defense.

The House can impeach and the Senate can convict an officer for engaging in lawful conduct. The constitutional impeachment standard of high crimes and misdemeanors is not limited to criminal conduct under ordinary criminal statutesthough many ordinary criminal acts, if committed by a federal officer, may be impeachable. The impeachment power is given to Congress to address myriad cases of noncriminal, political misconduct. The fact that an action is lawful is no defense to impeachment and conviction in the Senate.

It is possible that at least some of the actions alleged in the article of impeachment are also criminal acts punishable in the ordinary courts. The Constitution specifically allows for criminal prosecution for the same underlying acts that were considered in an impeachment trial. Nonetheless, the criminal case is not an easy one, in part because the presidents actions might not meet the statutory conditions for a criminal offense. It is also possible that the president would have a valid free speech defense for some potential criminal charges. The Supreme Court understands the First Amendment to put severe limits on what speech can be prosecuted for inciting a riot or encouraging seditious activity, and with good reason. But the Senate need not question those First Amendment protections against criminal prosecutions in order to convict the president of impeachable offenses.

Assume for the sake of argument that the president has a valid First Amendment defense against criminal prosecution for anything included in the article of impeachment. Does that also mean the president has a valid First Amendment defense against an impeachment?

The First Amendment does not shrink the scope of the impeachment power or alter what conduct would fall within the terms of high and misdemeanors. When drafting the Bill of Rights, James Madison took care to include only provisions that he thought were compatible with the existing body of the Constitution drafted in 1787. The adoption of the First Amendment, from Madisons perspective, would reaffirm what was already true about the Constitution, not carve out new exceptions to it. It is inconceivable that Madison would have thought that his proposed affirmation that the freedom of speech may not be abridged by the new federal government meant that an exception was being carved out of the power of Congress to impeach and remove officers for high crimes and misdemeanors. That which was impeachable before the adoption of the First Amendment was still impeachable after.

It is worth noting, as Jonathan Adler and Ilya Somin have, that government employees and political leaders have limited First Amendment protection for things that they say on the job or that affect how they can function in their job. When job security rather than criminal prosecution is on the table, the Supreme Court has long recognized that government employees can be removed from their positions for engaging in speech that would be lawful and constitutionally protected if uttered by a private citizen. In Pickering v. Board of Education, the Supreme Court held that a public school teacher could not be terminated for writing a letter for newspaper publication so long as the letter did not affect his functioning in the workplace. In Garcetti v. Ceballos, the Supreme Court upheld the termination of a deputy district attorney for speech made in pursuance of his duties as a government employee. As the court has long recognized, public employment comes with some restrictions on the exercise of constitutional rights. Government employees and public officials have public responsibilities that dictate that they not behave in the same way as private citizens and that they not exercise the full scope of the liberty that is allowed to the private citizen.

If a civil service employee in the Department of Justice had done the things contained in the article of impeachment, he could be justly terminated from his federal employment despite the First Amendment. If the attorney general had done the things alleged by the House of Representatives, the president could justly fire him despite the First Amendment. There are many things that could get a government employee or a Cabinet secretary fired that would not rise to the level of impeachable offenses, but there is nothing that would otherwise be an impeachable offense for which the First Amendment would shelter an officer from Senate conviction and removal.

There is only one impeachment power and one standard for impeachment. That standard for impeachable offenses applies equally to all the government officials subject to it, whether judges, executive branch officers or presidents. It is best to be careful not to deform the scope of the impeachment power by bending it to account for the specific behavior of a particular individual. Of course, judges and presidents have different job responsibilities and adhere to different standards of behavior, and the House and the Senate have traditionally recognized that distinction by following the principle that impeachable offenses involve charges of misconduct incompatible with the official position of the office holder. If a judge acted like a president, she could and should be impeached. But if a president has a First Amendment defense against impeachment charges, then there is no reason to think that other officers cannot take advantage of the same argument. The relevant question in an impeachment should never be whether the actions under scrutiny are constitutionally protected by the First Amendment but whether they are high crimes and misdemeanors when committed by this individual holding this office in this context.

Imagine that a sitting federal judge told flagrant public lies about the fairness and outcome of a federal election or made false statements that could foreseeably lead to mob violence. Is there any doubt that such a judge could be impeached and removed from office? It would not matter if a judge made such pronouncements from the bench or on social media or at a lectern. Those statements would be grossly incompatible with the judges office. Imagine, for example, a sitting federal judge who said in a television interview that the Republican Party is a seditious conspiracy and deserves to be wiped out and its members jailed or shot. There is no doubt that such a judge could no longer be trusted to faithfully perform his duties in the public trust. Imagine a sitting judge accompanying the incumbent president on the campaign trail and delivering speeches urging voters to reelect the president and to vote against all the members of the opposition party. Such a judge would be subject to impeachment and removal. The fact that such speech is protected by the First Amendment would be no defense. Such actions are impeachable, and the Senate could appropriately conclude that such a judge deserved condemnation and conviction and removal in an impeachment trial.

The Senate could likewise conclude that the constitutionally protected speech of Donald Trump is deeply inconsistent with the nature of his office and the public trust and appropriate grounds for impeachment and removal. It is true that there was not much movement in the House to contemplate a second impeachment of Trump until his words helped spur a deadly mob to storm the Capitol to prevent the counting of electoral votes. But the House did not need an actual riot to justify taking the presidents words seriously. Violence is not a necessary predicate for impeaching officers for their speech, nor need speech be the proximate cause for violence to be condemnable through the mechanism of impeachment.

As is often the case, impeachment should be a last resort. There might be other political tools available that could effectively counter disturbing presidential speech. But there are also occasions in which impeachment and removal ought to be on the table.

Trump has often operated close to that line. In 2017, I called attention to early speech acts of the president that broke norms of presidential behavior to a greater or lesser extent. Trumps rally speeches comparing immigrants to animals who would slice and dice American teenage girls, or his using his platform at a Boy Scout jamboree to denounce his political predecessors, were surely offensive and inappropriate for a presidentbut probably not the kind of speech for which impeachment would ever be an appropriate response. By contrast, the presidents urging American troops to take political action in support of his policy agenda; his public condemnation of military personnel facing court martial; his questioning whether federal judges of particular ethnicity or background could be trusted to act in good faith; his telling police to get rough with suspects; and his telling border patrol agents that they should defy judicial orders are closer to the lineespecially as these utterances became part of a pattern of behavior and not simply a one-time error in judgment.

It is not hard to imagine examples of speech that would be constitutionally protected if uttered by a private citizen but that could and should be grounds for impeachment and removal if uttered by the president of the United States. Speech that is divisive, intolerant, reckless or dangerous could become the foundation for an impeachment effort even if perfectly lawful. Imagine if Trump were to appear at the White House press briefing room in blackface and perform a minstrel show. Imagine if Trump had responded to the Charlottesville riots not with a series of ambiguous and contradictory statements but with an impassioned speech in defense of white nationalists and the need for street justice against left-wing protestors. Imagine if the president had responded to the video of the killing of Ahmaud Arbery, a Black jogger pursued and shot by three white men, with a public statement declaring that the victim deserved his fate and used racial slurs in saying that such people needed to learn to stay in their own neighborhoods. Imagine if the president invited leaders of white nationalist groups to join him on stage at a rally and gave his own version of Confederate Vice President Alexander Stephenss cornerstone speech declaring that the American government is founded upon the great truth that the negro is not equal to the white man; that slavery, subordination to the superior race is his natural and normal condition. Imagine if the president told a public audience that it would be fitting and proper if House Speaker Nancy Pelosi and Chief Justice John Roberts got what was coming to them, which was a bullet between the eyes. Imagine if the president had borrowed a page from Socialist leader Eugene Debs and proclaimed to a crowd of supporters that some of them would lack the fiber to endure the revolutionary test but that they should be willing to fight for them; go to jail or to hell for them and shed their heroic blood to lay the foundation of the first real democracy that ever drew the breath of life in the world. Imagine if a president spoke from the Resolute Desk in the Oval Office to inform a television audience that the members of the opposition party are vermin and should be eradicated by patriotic citizens and to celebrate the fact that the members of the presidents own party had more rough guys who were well armed and could play it tough.

Such a president should be hastily impeached and removed precisely because such a president would be engaged in behavior fundamentally incompatible with the high office that he held and subversive of the ideals and functioning of the American republic. One would not need to demonstrate that such speech had led to violence to conclude that it would be intolerable for a sitting president to engage in such speech, that such speech is, in the most fundamental possible sense, unpresidential. That such speech is in and of itself an assault on the constitutional order when uttered by a sitting president.

Josh Blackman and Seth Barrett Tillman have argued that Americans should not forget the free speech lessons from President Johnsons impeachment trial. Indeed, we should not. As they note, among the articles of impeachment adopted by the House against Andrew Johnson was one that charged him with giving a series of inflammatory speeches that tended to bring Congress into hatred and contempt by denouncing it as despotic and illegitimate. Johnsons defenders argued that the president has the right to make foolish speeches just like anyone else, including members of Congress. Johnson was, by the slimmest of margins, ultimately acquitted in his Senate trial.

I would draw a different lesson from the Johnson experience, as I have argued at some length. It is, of course, true that the impeachment power can be abused and that there are examples of presidential speech that are not very presidential but that should not be impeachable. If Johnson were a modern president, nobody would be particularly surprised by inflammatory rhetoric calling Congress into disrepute. But within the norms of the 19th century, such rhetoric had long been viewed as the kind of tool of a demagogue that could threaten the very survival of a republic. Presidents from George Washington to Abraham Lincoln had taken great care not to give inflammatory public speeches or speeches questioning the authority or wisdom of Congress. Johnson was a dramatic norm-breaker, and Republican politicians at the time thought this was a norm that needed to be protected.

Norms are not always permanent. For better or for worse, the prohibition on foolish speeches is an aspect of the American constitutional order that has not been retained. But the important point is that earlier generations of Americans understood that some forms of constitutionally protected speech by presidents were too transgressive to be tolerated. Americans today might disagree with them about what kinds of speech are intolerable, but we should share with them the view that it is not anything goes when it comes to presidential rhetoric.

Moreover, there is an important context and undertone to Johnsons speech that should not simply be ignored. It might seem quaint that a president might be impeached and nearly convicted for giving speeches that called Congress into disrepute, but for many Republicans it seemed like a matter of life or death at the time. Johnson, of course, assumed office in the aftermath of a presidential assassination and a bloody civil war. Many people feared that Johnson had colluded with the assassins and that he was too sympathetic to the former rebels. Washington, D.C., was aflame with rumors that Johnson might launch a new civil war, declare martial law, disband Congress, and arrest Unionists. When Johnson told audiences that the Republicans were running a rump Congress that was illegitimate and did not represent the nation, he was amplifying the arguments of the former secessionists that helped justify violent resistance to Reconstruction and federal authority in the South. Johnson told audiences that he had stood up to traitors who sought to destroy the government and the Constitution in 1860, and as president he would turn round at the other end of the line and resist the traitors who sought to destroy the government and the Constitution from the halls of Congress in 1866. He told audiences why dont you hang Thad Stevens, the Radical Republican who would later lead the impeachment effort in the House of Representatives. It is no surprise that Congress might think a president should be impeached and removed for such rhetoric, even if mobs had not yet stormed the Capitol chanting hang Thad Stevens. People today might think the same.

Trump liked to assert that he was totally vindicated by the Mueller report and the first impeachment verdict. Few neutral observers would agree with that characterization of those events. Johnson did not have the advantage of Twitter, but he might have said the same after his narrow acquittal in his Senate impeachment trial. But few neutral observers would have thought he was vindicated either. It is certainly true that generations of Southern apologists denounced the Johnson impeachment as misguided, but that judgment has not aged well. More to the point, no one at the time thought that Johnsons conduct had been vindicated. Republican politicians overwhelmingly thought Johnsons speech was unpresidential, inappropriate and dangerous. For more than a generation, subsequent presidents took care not to engage in similar behavior and instead worked to return to the rhetorical norms that had guided the nation since its founding. Johnson was allowed to serve out the final weeks of his term, but the impeachment was successful in its most important task of marking off some presidential behavior as intolerable. Johnson was not a model to be followed. He was a warning of what was to be avoided.

Earlier impeachments had served a similar function of telling government officials that they should watch what they say and how they say it. When the Jeffersonians impeached federal district judge John Pickering and Supreme Court Justice Samuel Chase, Pickerings and Chases speech was front and center. Whether from alcoholism or dementia, the Federalist Pickering had let loose a politically charged tirade from the bench. Chase had more systematically taken the lead in opposing those creatures called democrats and the rise of the mobocracy both before and after the election of 1800. The Jeffersonians likewise charged him with inflammatory rhetoric unbecoming of a sitting judge. Pickering was convicted and Chase was nearly so, but again, judges got the message. No future federal judge thought it proper to follow Chases example of going on the campaign trail to stump for an incumbent president or denouncing a political party from the bench. The impeachment laid down markers of unacceptable speech for a government official, even when that speech was protected by the First Amendment.

The proper lesson of such past impeachment experiences is not that free speech is a perfectly adequate defense to impeachment charges, but that the impeachment process is an effective instrument for identifying and reinforcing fundamental norms of political behavior, including behavioral norms regarding speech. It is certainly true that the Chase and Johnson impeachments were largely partisan affairs. Some Democrats found it acceptable that the president would call Republican congressional leaders traitors, and some Federalists thought it admirable that a Supreme Court justice would campaign for President John Adams. They did not have the better side of that argument. Today, Americans tolerate, and even expect, sitting presidents to engage in fiery partisan rhetoric in a way that our 19th century forebears would have found shocking. We judge modern presidents by our standards, not those of our ancestors.

But some presidential rhetoric remains beyond the pale. It is easy to imagine an impeachment based on inflammatory rhetoric that would be an abuse of the impeachment power. The fact that a power can be abused, though, does not mean that the power does not exist. Legislators should be cautious about impeaching on the basis of speech, but that does not mean they should set aside all judgment in order to recognize a blanket First Amendment defense to inflammatory rhetoric by government officials.

If what the president is alleged to have done in the article of impeachment adopted by the House does not rise to the level of a high crime and misdemeanor, that would be one thingthough it easily does. But if the Senate finds that the president has committed a high crime and misdemeanor, the fact that his actions might be covered by the First Amendment is not a defense that should prevent his impeachment and removal. When but my free speech is the last line of defense against conviction in an impeachment trial, conviction should be assured.

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Is There a Free Speech Defense to an Impeachment? - Lawfare

Last week, as Twitter permanently banned Trump from its platform, critics from the right have been quick to blame a leftist culture within tech companies for a crackdown on free speech. That is not without its contradictions many people have expressed concerns about the decision, including Alexei Navalny and Angela Merkel. But it does raise an uncomfortable issue: in recent years, the conversation around free speech and arguments to protect it have been dominated by the right.

So what do experts make of it and should liberals try and reclaim the value for themselves? We asked five defenders of free speech to weigh in.

Is Trump a good example of where free speech should be limited? One of the challenges about free speech is that almost everyone thinks they know what it means; theyre sure it applies to their own speech; and equally sure that it doesnt apply to speech they consider offensive or dangerous. But when we talk about free speech as a regulatory matter, someone has to be the great arbiter. People pointed to the rise of a bigot like Trump as a justification for curtailing free speech, while ignoring the reality that if we did begin to roll back first amendment rights, Trump would be at the top of the enforcement structure.

So you dont think Trump should have been banned from Twitter sooner? If Trump had only communicated to the public through White House press channels that were heavily edited, redacted and managed, we would have known a lot less about who he was. His visceral, impulsive tweets ended up being important evidence in lawsuits that we (the ACLU) and others brought against him. We were able to show courts that the motivations behind his policies were not what his lawyers pretended they were. [Keeping him on Twitter for so long] was really in the public interest.

How do we move forward? Facebook has 2.5bn users. If it had 2m users, I wouldnt care about its moderation policies. If it was just for people who were very interested in yarn, there would be no basis whatsoever for me to tell them what their standards should be. But the fact that it has become the dominant platform for certain kinds of debate means we all have a stake. We need to use the law to prevent companies from consolidating that amount of power over our public discourse. That does not mean regulation of content. It would mean enforcing our anti-trust laws in the US. We should never have allowed a handful of companies to achieve the market dominance they have over such important public spaces.

How do you feel about social media platforms having the right to decide who says what? While I believe the government should not be legislating what can and cant be published on a platform like Twitter, we need far more robust protections for the public in terms of transparency: how these decisions are made, what the rules are, what the basis of adjudication is in an individual instance.

If you have a valid claim that you shouldnt have been kicked off, there really is no recourse; often an appeal can go into a black hole, people cant get answers and dont even know what rule they are accused of violating. There needs to be a robust process accessible to people in real time.

How involved should the government be, exactly? One analogy is financial regulation, where there are elaborate disclosure agreements. These are private companies investment banks, commercial banks but there are meticulous obligations in terms of public accountability. Social media companies should be required to make public how their algorithms are configured, what kinds of content is disappearing and when, what gets amplified and propagated across the network and why.

Do people know what free speech is anymore? I worry that many Americans are confused and under-informed. You see people arguing that Tumps ban from Twitter, or not publishing Josh Hawley, constitutes first amendment violations but thats just completely baseless. People tend to be unfamiliar with what the exceptions and limitations are to the first amendment, and in many ways have lost sight of why we protect free speech.

Which is ? The contention between opposing ideas is a catalyst to get to the truth. If people can call into question your claims and bring to light contrary evidence, that pushes forward debate. Free speech promotes tolerance and civil engagement. It is part of individual autonomy and how each of us expresses our identities. Its an underpinning for artistic achievements, for scientific progress, for economic prosperity.

Whats the leftwing case for free speech? Censorship and any type of oppression, really always begins by targeting particularly unsympathetic people, those who it is uncontroversial to censor. But once you set that precedent, inevitably, the bounds of what is considered acceptable or wrong always ends up expanding.

Those censoring are liable to political pressure. They may want to temper criticism or ingratiate themselves with a new regime. When Facebook started factchecking due to concerns about fake news, some of the fact checkers that got on board were from rightwing news outlets like the Weekly Standard, a long-standing neo-conservative magazine, and the Daily Caller, Tucker Carlsons old media entity.

There were several instances where fact checkers from those outlets factchecked stories where there was strong disagreement [about their conclusions]. And in 2017, when Germany purged some violent far-right websites, it also took off a leftwing website because it was an anti-capitalist website. Thats an attempt to look even handed so it does not look like you are merely prosecuting the right.

So how should we feel abut the Trump twitter ban? Trump didnt really incite the violence via Twitter he tweeted, but people saw that speech on TV. There is so much focus on social media companies, when arguably the media most important for Trumps rise was television and the massive amount of earned media and free media he got in 2015 and 2016. . It was on conservative news outlets that he said the election was being stolen. Even without a Twitter account, the president is going to be able to go on TV. So, if we believe he should be banned from Twitter surely he should be banned from TV too?

How is the curtailment of free speech used against minorities?Look at how hate speech has been used against Palestinians, who are agitating for their rights and freedoms against the Israeli government. That has been very cynically used people have been claiming antisemitism or saying that the speech is violent or out of bounds. In the same way there have been people on Facebook who were taken off social media for expressing they didnt do anything language around the police which came across as violent or threatening. Similar hate speech laws or legislation have been used against people of color if they say something offensive to a police officer.

Is free speech the preserve of the right? No, but the courts have shifted to the right so it seems that way. The first amendment libertarian justices are enthusiastic about is much more concerned with the rights of, for example, corporations and political donors than it is about the rights of political dissidents or whistleblowers.

So the right doesnt support all versions of the first amendment? Many on the left see the first amendment as not protecting them. When it came to the Black Lives Matters protests, the first amendment seemed to do very little to prevent government officials making their lives difficult and even dangerous; it seemed to be absent when journalists were arrested during those protests and yet it is available to neo-Nazis who want to hold a rally in Charlottesville. Thats not an entirely unjustified critique.

What would life look like without the first amendment? As terrible as Trumps administration has been for the first amendment, things would have been immeasurably worse without it. There were lines he couldnt possibly cross lines that dont exist elsewhere. Trump says journalists are enemies of the state; the next step in other countries is they can be rounded up and arrested for their journalism. This cant happen here. When he kicked reporters out of the White House press briefing, the supreme court ruled he violated the first amendment. We take that for granted, and we shouldnt.

Does Trump being banned from Twitter have anything to do with free speech?

Its a different question than free speech. Any hesitation from platform companies realizing what it is that they have built and the years of focusing on growth over community protection and safety has led us here. Any attempts to disrupt the infrastructure that this Maga movement has built is so they cannot mount a second attack during the inauguration this is big, this is different. This moment is going to be one of the most important moments in internet history because it only happened through years of inaction.

Its about prosecuting crimes? Yes. Alongside the imagery of guns and talk of this being our 1776, [the attack on the Capitol] was a direct threat to journalists and Congress members.

Many years ago, I was part of a punk rock message board where someone said they wanted to kill George Bush. The FBI showed up to his little apartment. That was the reality back then. If you threatened somebody online and the FBI found out about it, you got a personal visit. So there is reason for alarm when platforms consider [threats of violence] to be within the realm of free speech. Fantasizing that Mike Pence would be arrested and executed that should have consequences.

How do you balance the rights of people over the need to hear from the president?Trump is the sitting president, so hes not some private individual who is using social media to say we need to hold these corrupt governors and politicians to account. He is a politician and there are many avenues through which he can seek legal recourse for the allegations [that the election was fraudulent] and he did all of that, and lost. Platform companies provide anyone and everyone with the infrastructure to reach potentially millions all at once. When that power is utilized by people with enormous political importance [to overturn an election], it is oppression.

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Should we celebrate Trump's Twitter ban? Five free speech experts weigh in - The Guardian

That dismays Republicans who cheered Reagans move and say the current GOP proposals look a lot like a Fairness Doctrine for the internet.

I am a big Trump supporter, but I totally disagree with the approach here, said Mark Fowler, a Reagan appointee who led the charge for rolling back the doctrine as chair of the Federal Communications Commission. I think its a blunderbuss, kind of a Panzer, heavy-handed approach to trying to control the press.

Then-FCC Republican Mike ORielly expressed similar misgivings last summer after the president proposed a wide-ranging regulatory and legislative crackdown against bias in social media. I shudder to think of a day in which the Fairness Doctrine could be reincarnated for the internet, especially at the ironic behest of so-called free speech defenders, ORielly said in a speech in July. (Days later, Trump rescinded his nomination for a new term on the commission, forcing him to leave in December.)

Retired Rep. Greg Walden (R-Ore.), a former chair of the House Energy and Commerce Committee, told POLITICO last month that he too wants to keep government agencies away from social media speech. That puts him at odds with both Trump and Washington state Rep. Cathy McMorris Rodgers, who's now the top Republican on the panel.

"Go back to the Fairness Doctrine how did that work out?" Walden said. "It was a disaster for free speech and, actually, stifled speech on broadcast airwaves. And it wasn't until it was repealed, that like it or not, we saw more vigorous speech on the publics airwaves."

A generation after Ronald Reagans regulators killed the Fairness Doctrine, the Trump-era Republican Party is fired up over what it sees as anti-conservative bias in companies like Twitter. | Justin Sullivan/Getty Images

Supporters of Trumps efforts reject any comparison between their proposals and the doctrine that Reagans FCC vanquished. But the shift toward favoring government action against ideological bias by private companies is a notable trend among several of the most outspoken GOP voices in Congress, including potential presidential contenders like Sens. Josh Hawley of Missouri, Tom Cotton of Arkansas and Ted Cruz of Texas.

The main focus of the Republicans efforts has been to pare back or repeal Section 230 of the Communications Decency Act, a 1996 law that gives online companies broad legal immunity for how they police their users content. Those calls escalated last week, after Twitter shuttered Trumps account following the deadly Jan. 6 rampage at the Capitol.

Im more determined than ever to strip Section 230 protections from Big Tech, Sen. Lindsey Graham (R-S.C.) vowed last Friday on Twitter.

The Fairness Doctrine, a set of FCC regulations dating to 1949, stemmed from concerns that echo todays debates about Silicon Valleys stranglehold on the public discourse.

In the mid-20th century, a handful of powerful broadcasters controlled much of that discourse, inspiring fears that they could use their slices of the scarce, publicly owned airwaves to bombard Americans with one-sided content. To counter that, the FCC policies required radio and television stations to treat controversial subjects in a balanced and equitable way, which broadcasters said infringed on their ability to cover the news.

Critics of big tech companies say titans like Facebook, Twitter and Google pose a similar danger. Those companies don't have government-issued broadcasting licenses, but critics say they enjoy undeserved federal protections thanks to Section 230.

"In a country that has long cherished the freedom of expression, we cannot allow a limited number of online platforms to hand-pick the speech that Americans may access and convey on the internet," Trump said in a May executive order that called on several agencies and Congress to crack down on biased social media companies. He added, "Twitter, Facebook, Instagram, and YouTube wield immense, if not unprecedented, power to shape the interpretation of public events; to censor, delete, or disappear information; and to control what people see or do not see."

At a postelection hearing on alleged censorship by big tech companies, Cruz asked congressional Democrats: "Do you really want to submit total control of the public debate to a handful of Silicon Valley billionaires, modern day oligarchs? With money and power and no accountability?"

Back in the 1980s, Fowler recalled, even many Reagan supporters needed convincing about leaving decisions about fairness and balance up to the free market.

A host of top conservatives advocates, from Phyllis Schlafly to Pat Buchanan to Reagans White House advisers, feared that wiping out the Fairness Doctrine could unleash radio and television stations to criticize the president. But Fowler, who viewed the issue as one of First Amendment freedoms, convinced Reagan that repealing it would unleash a broader array of voices.

Fowlers views won the day, the rollback was completed in 1987, and stations freedom to air ideologically pointed programming led to the rise of conservative broadcasting stars like Rush Limbaugh who has repeatedly warned against any hint that Democrats were plotting to revive the doctrine or extend it to the internet. (When the Fairness Doctrine existed, there wasnt any controversial programming at all, Limbaugh said on his show in 2007.)

Over the decades, Reagans approach to broadcasting became the GOP orthodoxy. But Republicans views on social media have shifted in recent years, in response to conservative accusations that platforms like Facebook, Twitter and Google-owned YouTube systematically censor, block and filter right-leaning messages while letting liberals run free. (The companies deny the accusations, and Democrats including President-elect Joe Biden blasted the same platforms for giving Trump a megaphone to broadcast false and threatening messages.)

The result has been a series of bills that would make it easier for consumers to sue the companies either by repealing Section 230 entirely, as Trump has demanded, or by limiting the companies ability to qualify for legal immunity.

Repealing the law could subject every company with an online presence to lawsuits for just about anything their users post, making it difficult for Facebook and Twitter to stay in the social media business at all. (Twitter may be a private company, but without the governments gift of Section 230 they would not exist for long, Trump said in a Jan. 8 tweetstorm that the company immediately pulled down.)

Other legislative proposals would condition the legal protections on the companies ability to show good behavior, including in some cases ideological even-handedness.

One bill by Hawley, the Ending Support for Internet Censorship Act would deny the protections to companies that cant prove to federal regulators that their content decisions are politically neutral. Trump similarly asked the FCC to weigh in on stripping the immunity from companies that dont make such decisions in good faith.

Trumps ideas about reining in social media won't be departing D.C. anytime soon, especially amid conservative anger over Silicon Valleys shuttering of his online accounts and the GOP-friendly platform Parler.

Rep. Jim Banks (R-Ind.), the new chair of the Republican Study Committee, has said he plans to make the debate around overhauling the liability shield the key centerpiece of our work in the new Congress. He suggests that one GOP-backed bill to narrow the protections the Stop the Censorship Act would be a good start.

Banks said he sees a party that has never been more unified on these issues.

Its less to do with President Trump and more to do with the Republican base, Banks said in an interview. The Republican base is too familiar with Big Tech censorship and they expect the Republican members of Congress to be on the side of reforming Section 230. ... This is what the Republican Party base is demanding."

He said hes also watching the courts, noting a recent set of written comments in which Justice Clarence Thomas urged the Supreme Court to look for an opportunity to weigh in on Section 230. Thomas noted that many courts have construed the law broadly to confer sweeping immunity on some of the largest companies in the world.

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That trend shows no signs of fading even as the president leaves office.

I definitely think this is going to persist beyond Trump, said Rachel Bovard, a senior director of policy at the Conservative Partnership Institute whom the White House had considered last year when looking to fill a slot in the FCC. These companies in particular have crossed the Rubicon on so many different issues.

But the GOP bias complaints face a hard sell with congressional Democrats, who have their own changes in mind for Section 230 and say their main concerns about social media involve hate speech and misinformation ills demanding more moderation, not less. Democrats derided Trump's attempted crackdown, saying the president was just lashing out at companies that fact-checked him during his reelection campaign.

Banks acknowledged that Republicans thinking on the issue has evolved. But he said the current GOP efforts dont aim to impose any regulations instead, theyd be removing a special liability carve-out that only online companies enjoy.

Weve all come full circle on this subject, moving from seeing this as a free market issue to seeing this more as a deregulatory effort to take away the sweetheart deal that Section 230 gives to Big Tech, the GOP lawmaker said. What was a fringe issue four years ago is now, I believe, a widely accepted part of the Republican Party platform at the moment in support of Section 230 reforms.

That would be a mistake, said Fowler, the former FCC chair, even though hes no fan of the way social media titans like Facebook CEO Mark Zuckerberg wield their power.

We may not like it as Republicans I dont, said Fowler, whos now retired and living in Florida. But I like more the idea of free markets, with free marketplaces of ideas. And that really is the higher value. That is really what Republicans are missing in all this.

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How Trumps fights with tech transformed Republicans beliefs on free speech - Politico

By Mackubin Owens| The Providence Journal

Before last years election, I posted something on Facebook in support of an action by President Trump for which a complete stranger berated me. While I had no problem with his disagreement, I was appalled by something that he wrote in conclusion: that my Facebook posts had revealed my true colors and that I would be held accountable for them in the future.

I didnt serve in the Trump administration, although I supported Trump when I thought he was right. But according to this individuals barely concealed threat, I should expect my views to be scrutinized in the future to determine ... what?

Since the election, we are beginning to understand what such a threat entails: the possibility that those of us who hold certain views may be denied certain benefits of citizenship. Do I exaggerate? Ask those who have served in the Trump administration and are now being advised that their prospects for future employment are in jeopardy. Ask those whose Twitter and Facebook accounts have been suspended. Ask those whose online fundraising sites have been closed.

Free speech has long been understood to be a cornerstone of free government. Freedom of speech is not a right granted by the Constitution. It is a natural right that the Constitution protects, transcending the First Amendment, which only prohibits Congress from passing laws that limit free speech.

But what about truth? Did not Trump and many of those who worked for him lie to the American people? Are we not obligated to suppress falsehood? In hisAreopagitica, John Milton provided the best rejoinder to this argument:Let [Truth] and Falsehood grapple; who ever knew Truth put to the worse in a free and open encounter? Her confuting is the best and surest suppressing.

Of course, the very concept of free speech has been under assault for some time. It began in the universities but has spread to corporate America and popular culture. The concept of political correctness, the very negation of free speech, which has long infected academia, can be traced to the late Marxist philosopher,Herbert Marcuse, who among other things advocated something called repressive tolerance.

In classic Orwellian double-speak, Marcuse, a German migr who is seen as the godfather of the 1960s counterculture, argued that tolerating all ideas the essence of reasonable discourse that traditionally has defined the mission of the university was in fact repressive, since it did not privilege the correct ideas. True tolerance, Marcuse argued, would mean intolerance against movements from the Right and toleration of movements from the Left.

When Marcuse penned these words, most Americans, even those who had actually heard of him, would have dismissed them as the work of a crank. But thanks to what the 1960s German radicalRudi Dutschke called the long march through the institutions, Marcuses vision has come to pass in America. We see it in everything from university speech codes to calls for truth and reconciliation commissions to deal with those who served in the Trump administration or even citizens who may have committed the crime of supporting his policies.

As Michael Walsh, a prolific writer on culture and politics, has explained: Dissenters from the new orthodoxy will not only be kicked off social media, theyll be branded as ideological lepers and denied further employment. Anyone so much as associated with or supportive of the Trump administration will henceforth be deemed an outcast, and headed for the re-education camps or worse.

If anyone wants a sense of the dystopia that such actions portend, they should watch the great film, "The Lives of Others." Or they might examine Chinas emerging social credit system, which grades the behavior of Chinese citizens or more properly subjects. Imagine what its like to have ones very ability to earn a living, open a bank account, or travel, depend on whether one behaves in the approved manner or in accordance with accepted ideas. You may believe that those who supported Trump deserve this sort of treatment, but someday the powers that be will be coming for you.

Mackubin Owens of Newport, a monthly contributor, is a senior fellow of the Foreign Policy Research Institute in Philadelphia.

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Opinion/Owens: The end of free speech and the coming dystopia - The Providence Journal