A complex story is unfolding – based on discovery of a hard-drive belonging to the son of former Vice President Joe Biden. On that hard-drive are emails that appear to confirm activities by both men – potentially criminal, at least highly untruthful. Revealed by a newspaper, the story was suppressed by social media outlets. See, e.g., https://www.breitbart.com/tech/2020/10/14/election-interference-facebook-suppressing-new-york-post-bombshell-story-of-damaging-hunter-biden-emails/.
Cries of foul by Trump supporters, who can see no legal basis for suppressing evidence of untruthfulness and potential criminality before an election have triggered an avalanche of pre-election activity.
First, the outcry to republish the facts continues. That outcry was met by counter-cries that emails could be true-but-hacked. The counter-counter-cry is that the source is known and honest, no evidence of hacking exists, and if even hacked, facts matter. The information is of enormous “public concern.” See, e.g., https://turcopolier.typepad.com/sic_semper_tyrannis/2020/10/yes-the-hunter-biden-emails-are-authentic-by-larry-c-johnson.html; and https://www.foxnews.com/politics/hunter-biden-emails-senate-homeland-security-committee-investigating-hard-drive-laptop.
Second, potential misuse of power and political bias by social media companies has inflamed the US Senate. Pre-election hearings are planned, letters to the FBI multiplying. Likely to focus on antitrust regulation and civil liability, they will delve into information suppression. See, e.g., https://apnews.com/article/election-2020-donald-trump-amazoncom-inc-media-misinformation-831341e1d56e48b5100375a2fd9d27b6; and https://www.foxnews.com/politics/senate-republicans-call-on-twitter-facebook-bosses-to-testify-amid-censorship-claims-say-subpoena-in-the-works; and www.dailywire.com/news/numerous-lawmakers-send-letter-to-fbi-director-demanding-answers-about-hunter-biden-laptop.
The backdrop for these hearings is a report – dating back months – calling for regulation of social media giants and ending liability exemptions in section 230 of the 1996 Communications Decency Act. The latest incident is salt in the wound, raising the stakes for social media outlets, suggesting a need for accountability. See, e.g., https://www.nationalreview.com/news/senate-republicans-take-aim-at-liability-protections-for-social-media-companies-ahead-of-november-election/.
Third, in concert with new civil liability – for libel, tort, contract, election law violations – the Republican National Committee is suing at least one social media outlet for “in-kind” political donations to Biden, via suppression of the incriminating emails. See, e.g., https://pjmedia.com/news-and-politics/tyler-o-neil/2020/10/16/rnc-files-fec-complaint-twitter-gave-in-kind-contribution-to-biden-campaign-n1064081.
Fourth, new evidence is emerging – suggesting the FBI may have had access to the incriminating hard-drive and emails in late 2019, as the impeachment process was unfolding. If incriminating emails were available, the source known, and they offered exculpatory material – which would have assisted in the President’s defense – the question is, why were they not made available at the time? See, e.g., https://www.foxnews.com/politics/house-gop-fbi-hunter-biden-laptop; and https://www.foxnews.com/politics/hunter-biden-emails-giuliani-attorney-fbi. At hearings – perhaps in other contexts – the FBI Director will have to answer.
Fifth, a wider question hangs over this entire discussion – like a giant umbrella. What role should increasingly powerful social media platforms play in the future. Should they be regulated, subject to civil lawsuits, antitrust law, broken up, held to a higher standard of care than at present?
Does exercising editorial control and manipulating third-party content change their legal status and obligations to the public? Should they remain exempt from civil liability as “interactive computer service” organizations – a provision intended to nurture a onetime fledgling industry – or have they outgrown that protection?
If they can selectively suppress information on matters of public concern, potentially influencing a presidential election by content control, what implications does that have? Where do they fit, if at all, into public forum law? See, e.g., https://mtsu.edu/first-amendment/article/824/public-forum-doctrine. They are not government, but their power is considerable, verging on monopoly or oligopoly.
Finally, in some ways, all these questions vector to a simpler question. What is social media? Is it more like television or telephone, newspaper editor or delivery boy, email domain or public bulletin board?
Has social media become so powerful that – in effect – it is a “public forum,” and must be managed that way, even though not formally part of the government? Is it like a public park – or use of private space for public speaking – and if so, what kinds of restrictions are reasonable? If it must block criminal activity, can it also block political opinions with which private owners disagree? Is that reasonable?
Unfortunately, just as we enter the swift current of an enormously important national election, these questions have popped again. They are legal, but also political – and not likely to be resolved before the election.
In time, the Biden story will be known, Senate hearings held, Section 230 scrutinized, election violations decided, antitrust regulation and civil liability reconsidered, FBI behavior reexamined, and social media put under bright lights.
What all this activity reminds us is that – like it or not – we live in a complex world, characterized by fast, concentrated, unaccountable, increasingly manipulable communications technology – on which we all depend.
Implications are social, professional, legal, and political. They raise profound questions of trust – in modern technology and who controls it, the integrity of our institutions and democratic process, as well as how we relate to each other.
In time we will sort these questions out. But presently, evaluating the Biden email revelations and what they mean – we are at a disadvantage. The law is unsettled, complex and needs to be resolved – but the election is just days away.
While the First Amendment is sacrosanct, manipulation of highly sensitive content – credible news that can affect an election – by powerful, unregulated, legally sheltered “interactive computer services” should be forbidden. Time is short. Facts matter. The full story should be out – and social media should help get it out.