Trump, Twitter & Turley take on Free Speech & the Media
(TLB) Staff: Below are two articles by Jonathan Turley looking at the bumpy road of Free Speech vs Government Regulation. At a time in history when we need ‘more debate’ and ‘less regulation’ as our Founding Fathers intended, Social Media and Government want their side to prevail through ‘control’ rather than allowing Truth and the Constitution to do their job!
Trump Threatens To “Shut Down” Social Media Companies
I have a column today criticizing Twitter for its labelling of tweets from President Donald Trump as presumptively false. [Article follows] Twitter has yielded to demands in Congress to censor and regulate political speech. In signature style, however, Trump promptly bulldozed the high ground in the controversy by threatening to close down social media companies through retaliatory regulations. The First Amendment was written to bar that very authority in either the President or Congress or both. The President cannot be the putative victim of private censorship while claiming the authority to engage in government censorship. In fairness however Democratic leaders have threatened such a regulatory crackdown in the past. The coverage on Trump’s threat telling omits the fact that Democratic leaders and presidential candidates have made the same threat in the past.
Trump went on Twitter to warn social media giants that the federal government could “strongly regulate” or “close them down” if they continue to “silence conservative voices.”
Some of us who have long criticized Twitter, Facebook and other companies for bias and speech regulation. However, such private speech regulation presents a difficult “Little Brother” problem under our Constitution, which is focused on state action. Ironically, Trump is suggesting a more chilling prospect of using government power to retaliate against companies due to their bias. That is neither nuanced nor difficult. It would constitute a core violation of the First Amendment.
The President tweeted “Republicans feel that Social Media Platforms totally silence conservatives voices. We will strongly regulate, or close them down, before we can ever allow this to happen. We saw what they attempted to do, and failed, in 2016. We can’t let a more sophisticated version of that happen again.”
Again, I have been a long critic of these companies and their policies. However, this threat is chilling and wrong. It is a circular call for retaliatory regulation to deter the viewpoint bias.
What is particularly bizarre is that the President was winning in this fight. Truth will out. Many commentators, even some opposed to Trump, raised concerns over the action. This is precisely what Justice Louis Brandeis meant in his concurring opinion in Whitney v. California (1927) when he declared “If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the process of education, the remedy to be applied is more speech, not enforced silence.”
The President has long struggled with the core values of the free press and free speech, even when those values work to his own advantage. His original objections against Twitter were well-founded and compelling. He then assumed the very same abusive position as the company in seeking to limit or regulate speech. The difference is that he was speaking as the head of the Executive Branch. That is precisely what the First Amendment was designed to protect against. That is not the “Little Brother” problem. That is the “Big Brother problem.”
Gander Meet Goose: Executive In Charge of Twitter Rule Enforcement Under Fire For Anti-Trump Postings
The attacks are numerous, raw, and offensive. However, conservatives calling for him to be fired or his tweets censored are reaching the wrong conclusion. The problem is not Roth but his role. He has a right to express himself. I have no problem with Twitter hiring people with such political views and I believe it is a good thing for people to express themselves on social media. Indeed, we have discussed the free speech concerns as private and public employers punish workers for their statements or actions in their private lives. We have addressed an array of such incidents, including social media controversies involving academics. In some cases, racially charged comments have been treated as free speech while in others they have resulted in discipline or termination. It is that lack of a consistent standard that has magnified free speech concerns. We have previously discussed the issue of when it is appropriate to punishment people for conduct outside of the work place. We have followed cases where people have been fired after boorish or insulting conduct once their names and employers are made known. (here and here and here and here and here and here).
Roth’s comments highlight how bias is always a concern for those who take it upon themselves to decide who can speak or who must be “corrected” in communications with others. Twitter is notorious for a lack of consistency and coherence in the enforcement of its rules. However, regardless of such enforcement, there remains a core free speech issue in the regulation of speech. I recently criticized the calls of Democratic leaders like House Intelligence Committee Chairman Adam Schiff for greater censorship of the Internet and social media. Such calls have been growing for years but leaders like Schiff are citing the pandemic as a basis for speech monitoring and censorship. Roth is merely the personification of the problem of such speech regulation. Again, the real problem is his role and Twitter’s rules.
(TLB) published these articles from Jonathan Turley with our appreciation for this perspective.
Professor Jonathan Turley is a nationally recognized legal scholar who has written extensively in areas ranging from constitutional law to legal theory to tort law. He has written over three dozen academic articles that have appeared in a variety of leading law journals at Cornell, Duke, Georgetown, Harvard, Northwestern, University of Chicago, and other schools.
After a stint at Tulane Law School, Professor Turley joined the George Washington faculty in 1990 and, in 1998, was given the prestigious Shapiro Chair for Public Interest Law, the youngest chaired professor in the school’s history. In addition to his extensive publications, Professor Turley has served as counsel in some of the most notable cases in the last two decades including the representation of whistleblowers, military personnel, judges, members of Congress, and a wide range of other clients.
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