Perhaps the most jarring aspect of the Amy Coney Barrett Senate confirmation hearings was the contrast between Judge Barrett and the man who nominated her to the Supreme Court.
Yet after a few days of Trump acolytes praising Barrett for her originalist understanding of the Constitution, they immediately took a contradictory tone as soon as the news cycle presented them with the opportunity to own the libs—crafting a phantom version of the First Amendment in which government has the power to regulate speech on social media platforms if Republicans disagree with a private corporation’s decision to ban content harmful to Democrats.
On Wednesday, Senator Josh Hawley sent a letter to the Federal Election Commission (FEC) asking whether Twitter and Facebook had committed “egregious campaign-finance violations benefitting the Biden campaign” after they both blocked users from sharing a New York Post story of dubious plausibility.
In any sane non-election world, the FEC’s response would be three words long: “No. Seriously. No.”
But we are in the feverish last three weeks of a presidential election, so Team Red Hat is suddenly trotting out the idea that federal regulators should punish private companies both for what they choose to publish—or, in this case, what they choose not to publish—on their platforms.
Hawley’s decision was immediately cheered by Trump sycophants like Rep. Matt Gaetz (R-Florida), who claimed Twitter is “engaged in domestic election interference.” Former Wisconsin Governor Scott Walker said that Twitter’s and Facebook’s decisions to ban the New York Post link were “much like Communist China,” ironically using Twitter to call Twitter Communists.
Gaetz’s tweet now has over 100,000 likes. Downright Stalinesque, right?
The Post story in question purported to show former Vice President Joe Biden’s son, Hunter, had set up a meeting between then-VP Biden and officials from Burisma, a Ukrainian energy firm that employed Hunter Biden. The story was based on emails of suspicious provenance. Twitter and Facebook blocked links to it, suggesting it might be derived from “hacked” material. As New York magazine’s Jonathan Chait put it, while Rudy Giuliani, who brought these emails to light, “has not previously demonstrated any deep network of contacts in the Delaware computer-repair world, he has a long-standing string of contacts in the Russian intelligence world.”
Let there be no doubt that what Twitter and Facebook did was immensely stupid, giving Republicans a talking point for days, if not weeks, leading up to the election and shining an even bigger spotlight on the dubious report. Hunter Biden’s actions are virtually irrelevant to the current election; had the companies simply allowed the story to run its course, it would have died out.
But now the social media platforms are the ones on trial in “the discourse.” And that trial is revealing how thoroughly Trump has corrupted the traditional conservative brain.
For years, conservatives cheered the Citizens United Supreme Court case that held that corporations have the same free speech rights as individuals. But since the 2010 decision, liberals have wailed that “corporations aren’t people,” complaining that big businesses shouldn’t be able to exercise their speech rights to affect campaigns.
But since Trump has taken over, that formulation has flipped completely. Hawley and other government-forward Republicans have urged more regulation of corporations like Twitter and Facebook, alleging bias among their content gatekeepers (of which there is ample evidence).
Hawley and his ilk have taken aim at Section 230 of the Communications Decency Act, which essentially provides immunity for platforms that allow users to post content. These platforms are allowed to bar “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable“ content, even if it is otherwise constitutionally protected.
The act, however, does not require platforms to be “unbiased.” They are still corporations that can decide what to allow on their site and when.
But not according to the new nationalist-oriented conservatives, who want the government to be able to instill a “fairness doctrine” for privately owned corporations—or at least open up social media platforms to lawsuits for the things users post on their services.
This would effectively mean the end of social media—no firm would open itself up to lawsuits based on intemperate comments made by their platform’s users, which may include a deranged U.S. president.
For instance, members of SEAL Team Six might be inclined to sue Twitter any time Donald Trump retweets an insane conspiracy theory suggesting Barack Obama and Joe Biden ordered their assassination because they mistakenly killed Osama bin Laden’s body double.
Late on Thursday, Federal Communications Commission Chairman Ajit Pai said the FCC would be taking actions to “clarify” Section 230 in advance of the election. FCC Commissioner Jessica Rosenworcel immediately criticized the decision, saying “The FCC has no business being the President’s speech police.”
The idea that law enforcement can—or should—tell publishers or platforms (some of which are both) what they can or can’t publish in the months leading up to a campaign is a lefty fantasy that has migrated to the right now that the Republicans’ ox is being gored. The ramifications would be horrifying—virtually every decision made by a newspaper or cable news station regarding what to print or say would be subject to a review to determine whether it “helps” a campaign or not.
Further, these newly defined conservatives are evidently unable to see any further than the length of their own noses. They are suggesting granting the executive branch a whole host of new powers just before an election in which it looks like the White House might be changing parties. They appear unaware that the censorship powers they now want may soon be in the hands of Joe Biden and Kamala Harris.
This may come as a shock to Republican senators, but a freshly empowered Biden/Harris FCC will not likely make content moderation determinations premised on what produces the largest font of liberal tears.
In short, the idea that the FCC (or for that matter the FEC or FTC) should micromanage political speech leading up to an election is pure constitutional fantasy, driven by emotion and not law.
And if Republicans want verification on this, they could have just asked the woman sitting in front of the Senate Judiciary Committee on whom they have spent the week appropriately lavishing praise.