Before It's Too Late: The Public Square Must Be Saved From Twitter & Facebook

Last week Twitter & Facebook decided they would stifle the speech of the leader of the nation that gave them birth and allowed their owners to become billionaires many times over. We’re not of course talking about the oppressive China and Chairman Xi… No, we’re talking about the United States and President Trump. Think about that. The duly elected president of the United States is no longer able to communicate to supporters and opponents alike via the biggest microphones on the planet because of the decision of two unelected billionaires, Jack Dorsey and Mark Zuckerberg.

This is a watershed moment in modern American history. As a virulent capitalist I believe that private businesses should be allowed to do what they want, and that includes Twitter and Facebook and Apple and Google et. al. As long as they don’t infringe on the rights of others. This is particularly true as it relates to the 1st Amendment. The Amendments limit the actions of government, not private industry. As such, they should be exempt…

Except, however, when they shouldn’t be. In 1996 Congress passed the Communications Decency Act which included this language in Section 230: “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." Publishers exercise editorial control over what they publish, which is why if the New York Times printed “John Smith is a bank robber” John Smith could sue for defamation, and if he proved the statement was false, he could be awarded damages. Indeed, 230 was written specifically to give Internet firms protection from such circumstances. It was the result of an early ISP, Prodigy, being sued for defamation by Jordan Balfor – the guy Leo DeCaprio made famous in “The Wolf of Wall Street” – after someone on a Prodigy-run message board had accused Stratton Oakmont of fraud.

The author of the legislation, then Washington Rep. Ron Wyden, was concerned that if Internet companies were treated as publishers they would be sued into oblivion, killing the baby of the Internet in its crib. If a tech company was financially liable every time an Internet troll called someone a liar or a Nazi or claimed Jim Jones was cheating on his wife we’d never have Facebook or Twitter or YouTube or Yelp or customer reviews on Amazon or doctor reviews on Healthgrades.com or memes on Instagram or virtually anything involving user input.

But we do have Facebook and Twitter and YouTube and Amazon and Apple. Using the shield of 230 these companies grew not only to become the biggest and most valuable companies on the planet, but they also became the most powerful companies in the everyday lives of Americans as it relates to free speech and the exchange of ideas. Americans barely read newspapers anymore. In 1995 the year before 230 was written, 23% of Americans read a newspaper on a daily basis. Today that number stands at 8.3%. In 1995 0% of Americans used Facebook or YouTube or Twitter on a daily basis… because they didn’t exist. Today 74% of Americans use Facebook every day, 51% use YouTube and 42% use Twitter. Overall in 2019 Americans spent an average of 395 minutes on the Internet verses 11 minutes reading newspapers. They are no longer “as the publisher” they are publishers.

Essentially, social media has become the de jure American town square of the 21st century. That is where we get our information, where we exchange ideas and where we interact with one another. And they became that because of 230, based on the premise that they did not exercise editorial control.

But now today, when they have become the modern equivalent of the town square they’ve decided they do indeed have editorial control over their platforms. They most certainly have that right, but their choosing to do so should remove from them the shield of 230.

Of course all of this comes down to the 1st Amendment and the right of Americans to speak out without censorship or coercion by the government. But Twitter and Facebook aren’t the government you say. That’s true. But they have become so ubiquitous, so dominating, so central to an American’s freedom of speech that they are actually more powerful than the government. Not sure about that? Take a look at Knight First Amendment Institute v. Trump where President Trump tried to block from following him on Twitter accounts with whom he disagreed. In forcing Trump to unblock the unwanted followers the court said Trump’s account bears “all the trappings of an official, state-run account” and is “one of the White House’s main vehicles for conducting official business.”

So, if these social media giants have become the modern town square for the exchange of American ideas, if they are violating the spirit of the law that provided them with the ability to successfully become such, and if a federal appeals court agrees that their platform is “one of the White House’s main vehicles for conducting official business.” they should no longer the protections 230 accorded. They should be treated as the publishers they have willingly become and should be at risk for all the liabilities, financial and otherwise that come with that.  

That does not necessarily mean that 230 should be eliminated. On the contrary. Its protections can and do function as intended, allowing small online firms to give users platforms to exchange ideas without fear of being financially ruined because of a content that someone doesn’t agree with.

But for those tech companies who violate the premise of lack of control of editorial content 230 should no longer apply. They could of course step back and adhere to the idea of not exercising editorial control, but they won’t. It’s no longer about building a successful company or getting rich for Jack Dorsey and Mark Zuckerberg. They both have that in spades. No, now it’s about power, and their power to remake America (for now) into what they think it should look like. They want Donald Trump on their platforms not because of what he says or who he is. They want Donald Trump off their platforms because his words resonate with so many regular, blue collar Americans, because he inspires patriotism in America and because he wants Americans to be free of the yoke of government control over virtually every aspect of their lives.

At the end of the day, it’s not Donald Trump they fear. It’s freedom of thought. It’s freedom of expression. It’s ideas they can’t control that they fear. And most of all, it’s you and your desire to live your life as you see fit. In a free market they’re welcome to go out and build any kind of platform they want and use editorial control to stifle as much speech on it as they wish. But they can’t do that behind a government provided shield of protection. It’s one or the other. They can’t have it both ways.

We've already seen the kind of damage such information control can do to our social cohesion and our political process.  Do we need to wait until America is plunged into a full scale civil war before we realize that allowing a tiny minority of tech oligarchs to control our speech forums is probably not conducive to a free society?  

The Day Freedom Died: The Republic of the United States: June 21, 1788 – January 6, 2021

My earliest memory of being an American was when I played Abraham Lincoln in the bicentennial play at Braddock Elementary School in Annandale, VA. I don’t remember much other than my fake beard and the top hat and everyone in the school had matching red, white and blue bicentennial tee shirts. I didn’t exactly understand the concept of nation, but I understood that I was somehow connected to Lincoln and the Founding Fathers on that stage.

From there I went on to spend the formative years of my life living in the American base at Guantanamo Bay Cuba. It was as close to Americana as you could get… this was back in the late 70’s and early 80’s. Our 4th of July parades were spectacular. They involved everything from tanks to horses to 57 Chevy convertibles with pretty girls waving. The parades were followed by a day of adventure on the midway with cotton candy, motocross races and karate tournaments, all topped off with a concert and fireworks. You couldn’t help but feel like you bled red, white and blue there.

After college I enlisted in the Army for two years and served in West Germany as a company clerk and Battalion Commander’s driver. While there I was part of the honor guard who would bury American soldiers who died there, almost all of whom were WW II veterans who had married German women. It was always heartbreaking when you would hand that folded triangle of the flag to the family…

But despite all of that, the sad truth is, for the first three decades of my life I knew I was an American but never had to think about it and what it meant. I didn’t really understand it. I’d been taught American history, particularly as a Political Science undergrad, but I had studied to pass the test rather than actually learn the information. It was only after September 11th that I began to focus on that identity, that history and began to understand what it really meant.

I discovered for the first time exactly how courageous men like John Hancock, Thomas Jefferson and John Adams were. I discovered for the first time exactly how groundbreaking the American Constitution really was. For the first time I really appreciated the fundamental difference between a Republic and a Democracy, between a nation of laws vs. a nation of men. Perhaps most of all, I stopped taking for granted the freedoms we have, the Constitution itself and finally began to understand exactly how fortunate Americans are in an extraordinarily flawed world. For the first time I recognized that the ideas in the Declaration of Independence were not natural to man, that the rights articulated (and implied) in the Bill of Rights were not present everywhere at all times, like gravity… Intellectually I’d known all this, but in my heart I’d never really felt it.  It’s funny… freedom and liberty turn out to be like so much else in life, we often don’t recognize their value, their importance until we are faced with losing them.

While September 11th slowly faded into the shadows over the last two decades my new found appreciation for freedom never waned and indeed my reverence for the font of our liberty, the Constitution, grew day after day. But I was still blind. Not to the gifts fortune had bestowed on America and Americans, but rather to the ignorance of a growing number of Americans about those gifts and what goes into keeping them. My guess is it has to do with war… As the generations of soldiers and citizens who fought in WWII, Korea, Vietnam and lived through the Cold War age and die, what’s left are Americans who’ve only really known mostly peace and prosperity and have only the vaguest of ideas where it comes from and how to protect it.

Yes, there was September 11th, but it turned out to be but a moment in time, and other than a couple of months of heightened cable news coverage, it touched relatively few lives. During the four years of World War II 16 million Americans wore the uniform (out of a population of 132 million – 12%) and virtually everyone else was involved in supporting the war effort. By contrast, during the 18 or so years Americans were fighting in Iraq and Afghanistan a total of 2.4 million soldiers served (out of a population of over 300 million – under 1%) while the rest of the population focused on learning how to shop on Amazon, do practically anything on their iPhones, harass people on Facebook and share far too much information on countless apps.

My blindness left me sanguine that somehow Americans were different and would withstand the nature of man which tends to have people choose security over risk, comfort over work and most of all, rule of man (or mob) over rule of law. Despite all evidence to the contrary over the last 30 years, I believed that Americans were indeed a sufficiently unique breed as to understand their special place and would vote to continue to bend the ark of history upward as they inspired the world with the relentless pursuit of freedom and prosperity, with Donald Trump leading the way.

They did, but by a sufficiently narrow margin that fraud in half a dozen counties around the country could steal their victory. Yesterday the GOP failed to live up to its Constitutional duty and allowed the theft to succeed. And because of their abdication of their duty, the Republic ended yesterday. Going forward elections will be fiction, courts will become legislatures unto themselves and the regulatory state will become a boa constrictor around the neck of liberty and prosperity. Freedom will become that rapidly shrinking landmark in the rear view mirror of history. That landmark is a headstone which reads: RIP:  The Republic of the United States: June 21, 1788 – January 6, 2021.

What dystopia lies ahead? Who knows. But author G. Michael Hopf distilled it down to near perfection in Those Who Remain: “Hard times create strong men. Strong men create good times. Good times create weak men. And, weak men create hard times.” Hold on for some hard times…

A New Declaration for American Citizens Empowered by an Old Constitution

In America, January 2nd, 2021

In this, the Declaration of the seventy five million Americans who sought to have their votes count, who sought to be governed by the United States Constitution, who sought to live free in a nation of laws, we borrow from the words from our Founding Fathers:  When in the Course of human events, it becomes necessary for one people to dissolve the political bonds which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.--Such has been the patient sufferance of these Citizens; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present Government of the United States is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over American Citizens.

To prove this, let Facts be submitted to a candid world.

Certain members of the United States Congress, current and former members of the Executive Branch and sympathetic members of various agencies of the United States Government did impede the good working order of the United States government and undermine the respect of law among American Citizens by spending years and precious resources proffering a known fiction of treason against the American President and in doing so inhibiting his ability to govern the Nation in good order.

Government officials from across the United States have exaggerated and exploited the threat of a virus to eviscerate the natural right of American Citizens to live their lives as free men and women and pursue the ability to provide for their families and serve their communities.

The American Government has expanded its control over American Citizens far beyond anything for which it was rightly empowered in the Constitution of the United States.  By establishing an ever growing unaccountable bureaucratic leviathan which seeks to control the lives of Citizens the Government has eliminated the accountability which is inherent in a Government that derives its just powers from the consent of the governed.

And most destructively of all, enemies of freedom, along with their Press brethren and tyrannical Social Media enablers did conspire to deprive the American Citizens of their right to keep their government accountable by thwarting the honest and fair election for the President of the United States of America, thereby rendering all future elections moot, rendering toothless all procedures for limiting Government, rendering the Constitution of the United States to the dustbin of History. 

A government no longer accountable to those whom it governs has become by definition a tyranny. 

In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by ridicule, repression and indifference unworthy of a government empowered by its citizens. 

Nor have We been wanting in attentions to our Government overseers.  We have warned them from time to time of their attempts to extend an unwarrantable jurisdiction over us. We have reminded them of the circumstances of the Rights and Freedoms enumerated in the Constitution of the United States.  We have appealed to their native justice and magnanimity, and we have conjured them by the ties of our common kindred to disavow these usurpations, which, would inevitably interrupt our connections. They too have been deaf to the voice of justice and of consanguinity. We must, therefore, acquiesce in the necessity, which denounces our Separation, and hold them, as we hold the rest of mankind, Enemies in War, in Peace Friends.

We, therefore, the freedom revering Citizens of the United States of America, appealing to the Supreme Judge of the world for the rectitude of our intentions, do solemnly publish and declare, That a Government of the United States headed by an interloper is not representative of the will of the People, is illegal and against the Constitution of the United States and therefore all political connection between them and the free citizens of the United States ought to be totally dissolved. 

We beg that this dissolution be remedied before it ever comes to fruition by an honest accounting of the most recent Election for President of the United States of America by the Congress and the inauguration of the rightful victor as the next President of the United States. Senators and Representatives swear an oath that begins:  "I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same;” They have sworn to defend the Constitution and the Republic from enemies who would usurp the power of consent of the Citizens of these United States. 

We Respectfully beg they do that which they have sworn and remedy this usurpation before calamity befalls the Nation and the Freedoms endowed by the Creator and guaranteed by the Constitution become mere historical anomalies in the long march of Human Civilization.