Twitter seems much calmer and saner without Trump, doesn't it? And the country seems calmer without him asserting all that self-serving distorted propaganda. I'm glad Twitter kicked him off... mostly glad. It also makes me a little nervous that a quasi-monopoly can decide which politicians can and can't be heard on their platform. If Trump is an anomaly, fine. They shut down Georgia Q-Anon freak-show Marjorie Taylor Greene the other day too-- but then rescinded the order and let her back on. She's still spreading hatred, lies and conspiracy nonsense to her 288 thousand followers and her feed is basically a call for insurrection. I think I'd be more comfortable with Congress doing something about her-- like expulsion-- than to see a social media corporation silence her... although, there must be some kind of limits.
Robert Hockett was a Rhodes Scholar who teaches financial law and philosophy at Cornell. Yesterday, Forbes published an essay he wrote about this slippery slope, which has the Republicans making arguments you;'d expect to hear from liberals and Democrats making conservative arguments. After all, normally Republicans are very protective of corporations "freely exercising their oligopoly powers" while Democrats, "traditionally associated with calls to break up oligopolies and curtail corporate prerogatives, now turned to crowing that 'de-platforming' by private sector firms was within those firms’ legitimate discretion. 'That’s capitalism,' they observed, and social media de-platforming in any event wasn’t wasn't 'state action' of the sort requisite to trigger First Amendment scrutiny. It’s simply 'how things work' in a privately ordered, non-state-planned economy."
Hockett doesn't seem at all happy that "the inevitable conclusion now [seems to be] that where one stands on social media privilege must depend on one’s attitudes toward the content of would-be speech rather than any content-neutral principles that might guide the hosting of speech." He contends that "the irony of the past three months’ role reversals stems from our long ago having lost sight of that form of deliberative democracy that our Constitution both constitutes and vouchsafes. We have forgotten, in other words, what our Founders actually founded in founding our democratic republic, and hence what they had in mind when they acted to safeguard the 'freedom of speech' in the First Amendment to the same.
He began his argument with a reminder of what the Founding Fathers founded that makes the U.S. special. It isn't complicated but it requires a little bit of attention:
Our Constitution constitutes us-- the citizenry of the United States-- as a democratic republic, or res publica. ‘Res Publica’ in the original Latin means ‘public thing,’ a thing of the public. It is, in other words, a thing that we all own and manage, in our shared public capacity, in order to enable ourselves better to flourish in our private capacities. A republic accordingly presupposes both a ‘public sector’ that can act on behalf of us all, and a public space open to public deliberation by all in deciding how to act-- what to do-- as a polity.
A democratic republic presupposes, in other words, means and mechanisms of shared rational discussion through which we can all propose things to one another and give reasons for what we propose-- to ‘reason together.’ Think of these as virtual counterparts to the ‘meeting halls’ in which those quintessentially American institutions of shared public deliberation-- the ‘New England town meetings’-- take place. Virtuality of the town hall becomes necessary the moment the ‘town’ becomes a full continent-spanning nation state.
What this means for present, nationwide purposes is that we have to preserve public media space, and public media oversight, in the name of that shared public deliberation which is effectively the neural process of any republic. The ‘public mind,’ so to speak, needs good neural wiring just as each ‘private’ mind does. If public deliberation is our nation’s ‘software,’ its media platforms amount to the ‘hardware.’ And just as with computing power, so with deliberating power, a hosting hardware can be well designed and adapted to the purposes of the software, or can be poorly designed for those purposes.
Now at the time of our democratic republic’s founding in the 18th century, ‘media’ meant mainly pamphlets and newspapers, along with literal ‘town halls’ and ‘public squares.’ In the 21st century, it also means cable, spectrum, and broadband, among other things. Public cable, spectrum, and broadband must be publicly guaranteed, maintained, and overseen if our public deliberations are to be, in fact, both public and deliberative rather than balkanized and manipulative. It is really that simple. And it bears implications for both how to understand the First Amendment and how to structure our national communications infrastructure-- which, again, should be understood as deliberation infrastructure.
Enter the First Amendment. This first of our Bill of Rights constrains how our deliberative infrastructures are overseen. It prohibits content-discrimination so long as the content in question occurs within the bounds of fundamental-rights-respecting deliberative democracy itself, which again is precisely what our Constitution constituted in constituting a democratic republic.
And this means, roughly, that the Constitution protects what you say so long as what you say is not to the effect that the Constitution itself should be ignored where your fellow citizens’ rights are concerned. Lawyers will recognize this principle as a variation on the venerable ‘clean hands doctrine’ developed by the courts of equity centuries ago: roughly, you ‘will not be heard’ to demand rights that you yourself would deny to others. Saying ‘rights for me and not for thee’ is simply out of bounds-- it isn’t a recognized move in the game.
That phrase I just used in describing our polity-- a ‘fundamental-rights-respecting deliberative democracy’-- accordingly yields helpful guidance in understanding what might justifiably, and what might not justifiably, have been impeded on public platforms over the last several months. Bigoted ‘expression’ like that of white ‘supremacists' does not respect the fundamental rights vouchsafed by our Constitution. Calls to ignore electoral rights and election results are not democratic as required by our Constitution. And incitement to political violence is not deliberative as also prescribed by our Constitution.
It is accordingly fitting and proper that social media ‘canceled’ these forms of ‘expression.’ That is so not because it is social media oligopolists’ absolute prerogative to discriminate against speakers on the basis of speech content, but because our society is committed to fostering and safeguarding rights-respecting deliberative democracy, which again bigotry, manipulation, and incitement all undermine.
But now note that this observation on when the First Amendment permits speech regulation tells us little about what an optimally designed national ‘public square’ would look like. Twitter’s rightfulness in de-platforming white supremacists does not entail its rightful enjoyment of oligopoly status, nor does it entail that Twitter as currently run is an optimal ‘town square’ for a rights-respecting deliberative democracy.
...It is no accident that the likes of Rush Limbaugh, Alex Jones, Fox ‘News,’ ‘Newsmax’ and so on became national phenomena only after the Fairness Doctrine was rescinded. Probably no single change of law in the past 50 years has done more to degrade and corrupt our national deliberation infrastructure than this one. Restore, then, the Fairness Doctrine. And apply it not only to old media spaces, but also to new ones that have emerged in the meanwhile.
Relatedly, we should condition continued broadcasting licensure of media conglomerates on at least some degree of good faith on the part of broadcasters. Spectrum, again, is a public resource. The private sector firms that we license to use it effectively hold it in trust. They are accordingly subject to fiduciary duties of good faith and fair dealing just as are corporate fiduciaries, and in any event must certainly not act in manners that undermine our republic-- their licensing authority-- itself. But what are daily and nightly amplifications and propagations of outright lies concerning election results and electoral fraud but subversive activities tending to undermine, if not indeed aimed at undermining, the legitimacy of our republic-- the trustee and manager of our public spectrum-- itself?
And if that is the case, why not recognize that there is no public obligation to afford a national megaphone to those who routinely make inherently incendiary claims, to the truth of which they themselves are demonstrably indifferent? And why not also recognize not only that there is no such obligation, but also that there is every imperative to inoculate against this form of deliberative degradation? Of course any such regime would be vulnerable to abuse by authorities, but that is true of all forms of regulation, and we have accordingly developed safeguards against it over our life as a republic.
One safeguard works through what lawyers know as jurisprudential ‘presumptions.’ It is to resolve doubtful cases in favor of accused offenders. Only falsehoods propagated in clearly bad faith would imperil a firm’s or propaganda network’s broadcasting license. Another is to assure bi- or multi-party management of the relevant regulatory body-- in this case, the FCC, which is kept divided between Democratic and Republican Commissioners.
Whatever we ultimately decide, the hour has obviously come in which we will have to decide. The Constitution, it often is said, is not a suicide pact. But it is not only ‘not that.’ It is also an affirmative imperative to constitute something-- a deliberative democratic republic. First Amendment ‘absolutism,’ which entails a read of the Constitution fundamentally at odds with the Founders’ actual vision, is as politically suicidal a doctrine as can be imagined right now.
Of course, there's always a more natural way for this to go. CNN Business reported yesterday that "Many once-loyal members of Mar-a-Lago are leaving because they no longer want to have any connection to former President Donald Trump, according to the author of the definitive book about the resort. 'It's a very dispirited place,' Laurence Leamer, historian and author of Mar-a-Lago: Inside the Gates of Power at Donald Trump's Presidential Palace, told MSNBC host Alex Witt on Weekends with Alex Witt Saturday. He said members are 'not concerned about politics and they said the food is no good.' Leamer said he spoke to a number of former members who 'silently walked out' after Trump left office... [W]ithout the cachet of the sitting president of the United States working at the estate, guests are finding Mar-a-Lago lost a step. There isn't any entertainment on the property during the pandemic, and Leamer added, 'It's a sad place ... it's not what it was.' Disgruntled members might lead to a smaller paycheck for Trump. When Trump was president, many people paid up to $200,000 for Mar-a-Lago memberships, Leamer pointed out, and he said they don't think they'll continue paying that price. Mar-a-Lago has long been ridiculed by critics as a stodgy, stuffy club filled with Trump memorabilia-- some of it fake. 'Even here, people don't like him,' Leamer said, referring to residents of Palm Beach-- many of whom voted for Trump in hopes of lower taxes and a booming stock market. 'It's just another measure of how his power has declined.'"
And let's end with another Alex Witt interview over the weekend, this one with New York Times financial investigative reporter Dean Enrich, author of Dark Towers: Deutsche Bank, Donald Trump, and an Epic Trail of Destruction.