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Just Published: Twitter Was Right to Ban Trump, Even Though It Violates the Spirit of the First Amendment

I'm a First Amendment scholar – and I think Big Tech should be left aloneTwitter’s ban of Trump has concerned free speech advocates across the political spectrum. Jaap Arriens/NurPhoto via Getty Images
Paul Levinson, Fordham University

Twitter’s banning of Trump – an action also taken by other social media platforms, including Facebook, Instagram, YouTube and Snapchat – has opened a fierce debate about freedom of expression and who, if anyone, should control it in the United States.

I’ve written and taught about this fundamental issue for decades. I’m a staunch proponent of the First Amendment.

Yet I’m perfectly OK with Trump’s ban, for reasons legal, philosophical and moral.

The ‘spirit’ of the First Amendment

To begin, it’s important to point out what kind of freedom of expression the First Amendment and its extension to local government via the Fourteenth Amendment protect. The Supreme Court, through various decisions, has ruled that the government cannot restrict speech, the press and other forms of communications media, whether it’s on the internet or in newspapers.

Twitter and other social media platforms are not the government. Therefore, their actions are not violations of the First Amendment.

But if we’re champions of freedom of expression, shouldn’t we nonetheless be distressed by any restriction on communication, be it via a government agency or a corporation?

I certainly am. I’ve called nongovernmental suppressions of speech to be violations of “the spirit of the First Amendment.”

Every time CBS bleeps a performance of a hip-hop artist on the Grammys, the network is, in my view, engaging in censorship that violates the spirit of the First Amendment. The same is true whenever a private university forbids a peaceful student demonstration.

These forms of censorship may be legal, but the government often lurks behind the actions of these private entities. For example, when the Grammys are involved, the censorship is taking place out of fear of governmental reprisal via the Federal Communications Commission.

When governmental suppression is sanctioned

So, why, then, am I OK with the fact that Twitter and other social media platforms took down Trump’s account? And, while we’re at it, why am I fine with Amazon Web Services removing the Trump-friendly social media outlet Parler?

First, a violation of the spirit of the First Amendment is never as serious as a violation of the First Amendment itself.

When the government gets in the way of our right to freely communicate, Americans’ only recourse is the U.S. Supreme Court, which all too often has supported the government – wrongly, in my view.

The court’s 1919 “clear and present danger” and 1978 “seven dirty words” decisions are among the most egregious examples of such flouting of the First Amendment. The 1919 decision qualified the crystal-clear language of the First Amendment – “Congress shall make no law” – with the vague exception that government could, in fact, ban speech in the face of a “clear and present danger.” The 1978 decision defined broadcast language meriting censorship with the even vaguer “indecency.”

And a government ban on any kind of communication, ratified by the Supreme Court, applies to any and all activity in the United States – period – until the court overturns the original decision.

In contrast, social media users can take their patronage elsewhere if they don’t approve of a decision made by a social media company. Amazon Web Services, though massive, is not the only app host available. Parler may have already found a new home on the far-right hosting service Epik, though Epik disputes this.

The point is that a corporate violation of the spirit of the First Amendment is, in principle, remediable, whereas a government violation of the First Amendment is not – at least not immediately.

Second, the First Amendment, let alone the spirit of the First Amendment, doesn’t protect communication that amounts to a conspiracy to commit a crime, and certainly not murder.

I would argue that it’s plainly apparent that Trump’s communication – whether it was suggesting the injection of disinfectant to counteract COVID-19 or urging his supporters to “fight” to overturn the election – repeatedly endangered human life.

Be careful what you wish for

Given that Trump was still president – albeit with just a few weeks left in office – when Twitter banned him, that ban was, indeed, a big deal.

Jack Dorsey, co-founder and CEO of Twitter, appreciated both the need and perils of such a ban, tweeting, “This moment in time might call for this dynamic, but over the long term it will be destructive to the noble purpose and ideals of the open internet. A company making a business decision to moderate itself is different from a government removing access, yet can feel much the same.”

In other words, a company that violates the spirit of the First Amendment can “feel much the same” to the public as government actually violating the First Amendment.

To be sure, I think it’s concerning that a powerful cohort of social media executives can deplatform anyone they want. But the alternative could be far worse.

Back in 1998, many were worried about the seeming monopolistic power of Microsoft. Although the U.S. government won a limited antitrust suit, it declined to pursue further efforts to break up Microsoft. At the time, I argued that problems of corporate predominance tend to take care of themselves and are less powerful than the forces of a free marketplace.

Sure enough, the preeminent position of Microsoft was soon contested and replaced by the resurgence of Apple and the rise of Amazon.

Summoning the U.S. government to counter these social media behemoths is the proverbial slippery slope. Keep in mind that the U.S. government already controls a sprawling security apparatus. It’s easy to envision an administration with the ability to regulate social media not wielding that power to protect the freedoms of users but instead using it to insulate themselves from criticism and protect their own power.

We may grouse about the immense power of social media companies. But keeping them free from the far more immense power of the government may be crucial to maintaining our freedom.

Paul Levinson, Professor of Communication and Media Studies, Fordham University

This article is republished from The Conversation under a Creative Commons license. Read the original article.

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Your Honor 1.7: Cranston and Stuhlbarg Approaching Pacino and De Niro

Let me start off my review of Your Honor 1.7 by saying the scenes between Cranston and Stuhlbarg -- the Judge and the mobster -- were so good, they could have been between Pacino and De Niro.  Two outstanding actors acting their hearts and souls out in this one-of-a-kind drama, playing two fathers, one who wants at all costs to protect his son, the other wanting both revenge for the son who died and protection for the one who has just been arrested for murder.

The Judge again shows himself adept and quick-witted when the situation calls for it.  Why didn't you turn yourself in, Baxter asks the Judge.  I was going to, I was at the police station, the Judge replies, and then I saw you.  The best lies are the ones closest to the truth in these one-on-one situations, and the Judge was indeed in that police station, ready to bring in his son Adam.

I don't get Baxter's strategy in another scene, though,  Why not give Big Mo her $150,000 back?  Why say she has to eat it, and risk a war, right when he's trying to get his son Carlo out of justice's way, and get back to making the Judge pay?  He doesn't want to appear weak, I know, but he's not as smart as any of the lead mobsters in the Godfather or Goodfellas.

Adam, however, is as sharp as his father.   He doesn't believe the Judge's story.  He wisely has not told him that he and Fia are falling in love, and you know that's going to have a decisive role in how this brilliant series ends.  The Judge is a master strategist.  He managed to get Sarah off the Carlo case by feeding her single malts in the bar.  But he can't control everything, and it's still an open question of who will be left alive, who will be left out of prison, when this series concludes.

I'm very glad there are three more episodes.

See also Your Honor 1.1: Taut Set-Up ... Your Honor 1.2: "Today Is Yesterday" ... Your Honor 1.3: The Weak Link ... Your Honor 1.4: The Dinner ... Your Honor 1.5: The Vice Tightens ... Your Honor 1.6: Exquisite Chess Game

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Lupin, Part 1: Suave Crime

Lupin's five episodes -- Part 1 -- were easy to binge last night on Netflix.  The French series is a perfect caper revenge story, with elements ranging from Bondian combat on a train to Mission Impossible masks to the dynamics of any number of French cop series such as Spiral.

Omar Sy is the suave, brilliant Assane Diop, determine to seek revenge for his father Babakar, found hanging when Diop was a teenager.   The villain is Pellegrini, a millionaire wheeler and dealer, who is responsible for Babakar'a death, and may have killed him.  He's not taking Assane's capers lightly, and in fact has sent a hitman after him.

The third element in this narrative are the Parisian police.  On the one hand, they're after Diop.  On the other hand, they have a varying series of motives, ranging from wanting to nab Diop as a con man to working for Pellegrini.   Diop has to stay one step ahead of all of that.

His allies and family (wife and son) are also in the sights of Pellegrini's hitman.  Diop's smile and smarts can get him into all kinds of places, and out of all kinds of predicaments, but they're not as effective against a cool, professional killer.   Part 1 ends with a double cliffhanger -- about which I'll say no more -- but I will mention I would've liked to see Part 2, and am not a fan of Netflix's occasional practice of splitting up a TV series season into two parts, as it did for the revived Unsolved Mysteries.

I'll be back here with a review of Part 2, as soon as it's up on Netflix.

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Podcast: Insurrection, Trump, Impeachment, More

Welcome to Light On Light Through, Episode 164, in which Captain Phil on WUSB-FM Radio (Stony Brook, New York) interviews me about last week's storming of the U.S. Capitol, Donald Trump, the prospects of his impeachment, and more.

 

 

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Insurrection, Trump, Impeachment, More

Welcome to Light On Light Through, Episode 164, in which Captain Phil on WUSB-FM Radio (Stony Brook, New York) interviews me about last week's storming of the U.S. Capitol, Donald Trump, the prospects of his impeachment, and more.

 

 

Check out this episode!

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Your Honor 1.6: Exquisite Chess Game

The exquisite chess game ramped up in Your Honor 1.6, making it one of the best shows -- the most tightly and harrowingly plotted -- ever seen on television.

Here's what happened, and where the story now stands:  The Judge cleverly tracked down his blackmailer, and had a plan to keep him quiet, without killing him -- and without the Judge knowing that he was being followed by Baxter and his hit-man.  At the same time, Lee got testimony and DNA evidence that Carlo killed Kofi in prison, and let's the Judge know about this.  When Baxter is about to kill the Judge, he tells Baxter that his surviving son is about to be arrested for murder and the Judge can help.  Baxter thinks it over and kills the blackmailer (not because he's a blackmailer, but because the Judge tells Baxter the blackmailer knows "everything").

What a series of moves!  The blackmailer dead is better for the Judge than the plan he had worked out, where the blackmailer could have changed his mind at any time, despite what the Judge told him.  So where do we go from here?

Baxter still think the Judge killed his son.  Adam and Fia are falling in love.   Fia doesn't know yet that Adam is the Judge's son, that her father thinks the Judge killed Rocco, but in fact it was Adam behind the wheel on the terrible morning.  Meanwhile, let's not forget Big Mo, who is getting into a drug dead with Carlo, and won't hesitate to kill Carlo or his father if she gets a clear chance that won't stick to her.  That's a pretty good asset for the Judge, which he doesn't yet know about.

One of the excellent things about this narrative is how every time the deck is even slightly cleared, there's even more simmering, more bombs waiting to go off, than before.  See you back here next week, when we'll see what's standing.

See also Your Honor 1.1: Taut Set-Up ... Your Honor 1.2: "Today Is Yesterday" ... Your Honor 1.3: The Weak Link ... Your Honor 1.4: The Dinner ... Your Honor 1.5: The Vice Tightens

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Unknown: Fast Moving and Effective

I noticed that Unknown, a 2011 movie, is on Netflix's top 10.  My wife and I saw it a few nights ago, and very much enjoyed it.

Liam Neeson plays a professor (Martin) who gets separated from his wife Elizabeth (Mad Men's January Jones) and then loses part of his memorable when he's in a car accident.  He has enough of it to know he is married and to whom, but when he meets up with his wife, he finds she's with another man, who has Martin's name, and the couple claim to have no idea who the Neeson Martin is.

That's a good set-up for an action adventure, and Unknown follows through very well.  The action takes place in Germany, and Martin, wanting to find out what's going on with his wife, stays one step ahead of being killed.  Diane Kruger plays Gina, who becomes an ally of Martin's, and the narrative is peopled with oddly memorable characters, including a hotel factotum and a former East German member of the Stasi.

[spoilers ahead]

Unknown also does a good job of sprinkling in clues which are foundations for the surprise ending.  For example, Martin seems to be a very sharp fighter and driver for a professor, and that's because ... as revealed at the end, he's a secret agent not a professor.

The action is non-stop and effective, there's no telling who will live or die, and I very much recommend Unknown.

 

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The View Looks Better from Here

I wrote here the morning after the election in November that there were grounds for optimism -- Biden was gaining in Wisconsin, Michigan, and Arizona, which provided enough votes to win in the Electoral College. The last stage of that anachronistic, indirectly democratic process, but the only process we have right now, was completed last night.

I don't like Vice President Pence in the least.  He's enabled and promoted four years of Trump's fascist regime.  But, in the end, he did his job in Congress certifying the electoral vote yesterday.  It's a measure of how far we've gone away from decency and integrity in the Trump regime that a Vice President deserves praise for doing his job, but there you have it.

Yesterday also brought the news that the Democrats will control the Senate, and therefore both houses of Congress.  Warnock's and Ossoff's victories in George are profound game changers, which will open the way for Biden with Harris's help to enact all the major components of his rebuilding a better America. (In addition what needs to be done in making health care universal, countering racism, gun control, protecting the environment -- I've also long yearned, on a relatively minor, personal level, for a rail system in the United States as high-speed and effective as the ones in Europe and Japan, and I think that will now finally happen.)

There's still an enormous amount of danger to be dealt with, ranging from every minute Trump is still in the White House to the tap root of fascism Trump called forth to the still-raging pandemic.  But we've finally reached the light at the end of one of the long, deep tunnels we've been struggling the navigate, and the view looks better from here.

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3022: Worthy Entry in a Bleak Genre

For some reason, 3022 is the second movie I've seen in as many weeks about astronauts stranded in deep space, unable to return to an unexpected dead or dying Earth. The Midnight Sky was the first, and both reprise Arch Oboler's (great name) masterful Night of the Auk from the 1950s.   I loved Oboler's play, but I'm generally not a fan of these apocalypse astronaut scenarios.   But like The Midnight Sky, 3022 gave me some reasons to like it.

First and foremost, Omar Epp's performance as John Laine, captain of one of the crews out there in the solar system, was really excellent.  So was Kate Walsh as Jackie Miller, engineer and in a romantic relationship with Laine.  Believability, dependent on actors providing the requisite range of human emotions, is essential in these kinds of life-and-death stories in outer space, and Epps and Walsh are up to the task.

Now one of the reasons I generally don't care for these end-of-the-world astronaut stories is that scant or no reason is given for why the Earth is kaput.  The Midnight Sky didn't, and neither did 3022.  Night of the Auk, by the way, did -- nuclear war.

So with the action on Earth a fait accomplis, we're left with the people in space in 3022 to tell us a captivating story.   The usual narrative, which we've seen many times, are the long-term effects life in space has on the body and mind, and even the soul.  We get a good rendition of this in 3022, with happy astronauts evolving towards falling to pieces.

I won't tell you the very end, which we get in the very last minute.  But I will recommend 3022 as a worthy entry in a bleak genre.   Good writing by Ryan Binaco, good directing by John Suits, as well as the fine acting.

first starship to Alpha Centauri ... and they only had enough fuel to get there

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Podcast Review of Bridgerton: Alternate Jane Austen

Welcome to Light On Light Through, Episode 163, in which I review Bridgerton, and say it's an alternate history Jane Austen story.

Read this review:  Bridgerton: Alternate Austen

 

 

 

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