Trump, Social Media and The First Amendment

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Apologies for the delay in Wednesday’s commentary. Taxes. Returning Friday.

On January 6, the day the 2020 presidential election was set for certification by the Congress, Donald Trump gave a speech in front of the White House that became a drumbeat of rebellion built on lies, and conspiracies. It was a speech that whipped-up thousands of angry supporters to fury resulting in an assault on the Capitol building.

“… our election victory stolen by emboldened radical-left Democrats. …they rigged an election. They rigged it like they’ve never rigged an election before. We will not let them silence your voices,” Trump said. “We’re not going to let it happen. … Our country has had enough. We will not take it anymore… we will stop the steal. … This is a time for strength…. You will have an illegitimate president, that’s what you’ll have. And we can’t let that happen. …  We’ve amassed overwhelming evidence about a fake election…  we fight. We fight like hell. And if you don’t fight like hell, you’re not going to have a country anymore.”

And thousands of supporters shouted their support, “Fight for Trump!”

Of course, Trump’s attorneys and others use the fallback argument: it’s protected free speech, and he did not “intend” that anyone would attack the Capitol. That’s how they play it. That’s how they always play it, because it’s practically impossible to determine someone’s intent.

Suppose several neighbors witness an individual lighting matches near a house. Moments later, the house is burning. Who would you most likely suspect is the arson?

How about this scenario. Suppose those same neighbors witness that same individual shouting at the house, “There’s a thief living in there. It’s a disgrace. We won’t take it anymore.”

Moments later, the house is seen burning. Who would you most likely suspect is responsible?

Let’s take it one step further. Same man standing in front of the same house, shouting: “There’s a thief living in there. We’ve got to fight like hell. We’re not going to let that happen anymore. I’m not going to let that happen anymore.”

Now the neighbors across the street are yelling. “We’ve got to fight like hell.”

Moments later, the man is gone but the neighbors are seen by police attacking the house. Does the first man bear any responsibility?

While Trump may not have intended that supporters attack the Capitol, it doesn’t relieve him of the responsibility for the consequences of his words.

Even Republican Senate leader Mitch McConnell blamed Trump. “There’s no question, none, that President Trump is practically and morally responsible for provoking the events of the day. The people who stormed this building believed they were acting on the wishes and instructions of their president,” he said, “and having that belief was a foreseeable consequence of the growing crescendo of false statements, conspiracy theories and reckless hyperbole which the defeated president kept shouting into the largest megaphone on planet Earth.”

Of course, those words came after McConnell voted to acquit Trump of insurrection in his second impeachment trial.

Donald Trump’s words have been an ignition switch to anger and bigotry from the moment he announced his candidacy, and over the last 4 years they have only become more strident, more angry, and more provoking.

Nonetheless, Donald Trump’s biggest megaphone is social media. It’s a platform that he used regularly to anger and incite, not thousands, but millions of followers that retweet, re-energize, re-anger “his false statements, conspiracy theories and reckless hyperbole.”

In the aftermath of the Capitol attack, Facebook took the unprecedented action of suspending and ultimately banning Trump from using their platform. Other social media companies followed. Trump claimed the ban is a violation of his First Amendment rights. Is it?

In thinking about the question, it’s hard to detach oneself from all the denigrating, and angry rhetoric and the response by supporters. It’s hard not to be biased based on our own eyes and ears.

However, there’s a bigger question. Should social media platforms permanently ban anyone from their site if there is no specific regulation in place that defines such words leading to violent actions? Is such a ban a violation of that individual’s free speech rights?

After reviewing the Trump ban, Facebook’s oversight board said in a statement, “It is not permissible for Facebook to keep a user off the platform for an undefined period, with no criteria for when or whether the account will be restored.

“Facebook cannot make up the rules as it goes…  Having clear rules that apply to all users and Facebook is essential for ensuring the company treats users fairly. This is what the Board stands for. … Within 6 months of today,” the Board wrote, “Facebook must review this matter and decide a new penalty that reflects its rules, the severity of the violation, and prospect of future harm.”

But that still leaves the question: is Facebook and other sites violating Trump’s First Amendment rights?

Part 2 Wednesday.

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