First amendment freedoms remain under stress

Published May 6, 2021

By Rick Henderson

In a bit of a surprise, the Facebook Oversight Board refused to restoreDonald Trump’s Facebook account. It was suspended after the former president posted comments on Facebook and Instagram encouraging the insurrectionists who looted the Capitol January 6. The comments and videos violated Facebook’s Community Standards, grounds for blocking Trump’s account.

The oversight board agreed that Trump violated those standards when he “praised and supported people involved in a continuing riot where people died, lawmakers were put at serious risk of harm, and a key democratic process [certification of electoral votes] was disrupted.”

But Facebook made a mistake when it made the suspension indefinite. Facebook must provide “an opportunity of rehabilitation,” or disable Trump’s account permanently. Since it did neither, Facebook must return to the board in six months and reinstate the former president or kick him off permanently, and defend its decision.

Trump, who launched his own website Tuesday (so much for cancellation), said Facebook’s move violated his free speech rights.

“These corrupt social media companies must pay a political price, and must never again be allowed to destroy and decimate our Electoral Process [sic],” he posted. 

House Minority Leader Kevin McCarthy, R-California, issued a warning.

"Facebook is more interested in acting like a Democrat Super PAC than a platform for free speech and open debate. If they can ban President Trump, all conservative voices could be next. A House Republican majority will rein in big tech power over our speech.May 5th 2021."

Right-wing talk-show host and TurningPointUSA leader Charlie Kirk showed his ignorance of civics with this tweet:

"The US Supreme Court should overturn the Facebook’s “Oversight Board’s” “ruling” which upholds the outlawing of the 45th President of the United States from social media. This is a big tech, corporate oligarchy without standing and it’s gone too far. Enough is enough."

How these threats and bluster square with the First Amendment, which prevents Congress rather than private entities from limiting speech, is anyone’s guess. It’ll make great copy for the social-media and cable outrage machines. It’s content, baby!

Some North Carolina lawmakers may need a First Amendment refresher course of their own.

On Tuesday, Rep. Jake Johnson, R-Polk, chairman of the House Appropriations IT Committee, filed House Bill 832, the Social Media Impartiality Act. Co-sponsors include fellow House committee chairs Jerry Carter, Frank Iler, Keith Kidwell, Jeff McNeely, Dennis Riddell, and Larry Strickland.

The bill says, “‘Big Tech’ companies are a business [sic] like any other as described in current election law.” As such, the bill would regulate them as potential corporate players in campaigns.

H.B. 832 continues. Corporations “cannot give direct contributions or in-kind contributions to political candidates or campaign committees.” 

Meanwhile, “unmerited censorship of one candidate who has officially filed is by default an in-kind contribution to that candidate's opponent.”


So, the bill says, any candidate who 

"is censored on a social media platform or online interactive service by the company providing the service, the company shall submit, in writing, to the State Board of Elections the reason for censorship within three calendar days of censoring the candidate. The State Board of Elections shall then hold a hearing within three calendar days from the date of the required submission from the company to determine if the company's actions were justified according to the terms and agreements that the candidate agreed to upon formation of the candidate's social media page. Terms and conditions of the candidate's official social media page shall not be modified to exclude any rights guaranteed by federal law."

Civil penalties range from $250 to $250,000 “each day the candidate unable to access the social media platform.”

In other words, the State Board of Elections is expected to become North Carolina’s Internet Nanny. If a candidate is “deplatformed,” and complains, the elections board has to decide if the move was legit. The Joint Legislative Commission on Government Operations would hear appeals.

I asked Johnson if he consulted any First Amendment experts before filing the bill. In an email, he didn’t say. Instead, he sees the bill as a simple extension of campaign finance law. “This bill is an effort to make sure all sides are being treated equal on the big tech platforms.”

I think the answer to my first question was no.

The bill covers a lot more than Facebook and Instagram, says Shoshana Weissmann, senior manager for digital media at the R Street Institute, who deals daily with attempts to regulate online speech. 

“This is another unconstitutional bill focused on the current moral panic [over] social media, while trying to infringe on the rights of private actors,” she said. The bill would cover “Twitter, dating apps, and even the comments section of your mom’s blog.” 

All these platforms are covered by Section 230 of the Communications Decency Act. Section 230 gives First Amendment protections to online content providers, including social media outlets. 

"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," Section 230 says. 

As the Electronic Frontier Foundation suggests in its page on Section 230 protections, H.B. 832 wouldn’t stand a chance in court. For one thing, the CDA

preempts any state laws to the contrary: 

"[n]o cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section." The courts have repeatedly rejected attempts to limit the reach of Section 230 to "traditional" Internet service providers, instead treating many diverse entities as "interactive computer service providers."

Yes, that includes Twitter, dating apps, and the comments section of your mom’s blog.

Weissman added the section about modifying terms and conditions is unclear. Could the platform modify its terms without violating the law? Could the candidate?

The bill’s a mess. But it offers more evidence that First Amendment freedoms remain misunderstood and under stress, even (or especially) by those sworn to uphold them.