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Social Media – Colliding with Liability

Posted on Thursday, March 4, 2021
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by AMAC, Robert B. Charles
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58 Comments
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After a point, “admiring the problem” gets you nowhere. You need solutions, and so – this analysis lays out the problem and solutions – to social media’s runaway political bias.

We know the problem: Social media has unprecedented power to control public dialogue – personal, political, cultural – in modern America. They manage entry and exit, not just speech but people and their political, business, and cultural viewpoints.

They run the globe’s electronic “public square,” adjudicating who can say what, when, where, with which words, what presumed intent, subject to cancellation, removal, reputational damage.

Due to their size, reach, economic power, and government protection – notably, Section 230 of the 1996 Communications Decency Act – they operate with near impunity.

These companies have overstepped.  They continue suppressing disfavored views. They have changed a legal shield into a sword. They claim the right to censorship, viewpoint suppression, disenfranchisement of conservative voices, emasculating dialogue, impugning people. That is about to change. They have no right to trash First Amendment rights.

Six observations. 

First, social media’s reliance on Section 230 to justify aberrant behavior, including nod-and-wink censorship under government protection, may soon end.  Whatever Congress does with Section 230, the First Amendment is not so easily skirted.

To date, cases have been sidelined by Section 230, but most were in the liberal 9th Circuit, none yet hit the Supreme Court. See, e.g., https://www.theverge.com/2020/5/27/21272066/social-media-bias-laura-loomer-larry-klayman-twitter-google-facebook-loss. They will, just wait.

Companies claim they can violate the First Amendment, since they are private. But not so fast: If the government shields them, they may lose that private status.  The government cannot outsource censorship, any more than it can contract to shut down churches or confiscate guns.

Whatever Congress’ intent in 1996, Section 230’s protection is thinning. Used to suppress conservative viewpoints, it becomes unconstitutional.  Section 230 reads: “No … interactive computer service shall be held liable on account of . . . any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.”

But that text does not trump a constitutional right.  No time, place or manner restriction justifies political bias – any more than “cruel and unusual” punishments can be legislated over 8th Amendment protections. Whether “liability” refers to damages or guilt, whether “good faith” or with bias, whether blocking “material” or people, monopolies or not, whatever “objectionable” means, social media cannot hide behind government protection and shoot at constitutional rights.

The comeback is that the “Commerce Clause” allows regulation of commerce – but not open-ended authority to suppress viewpoints, push political prejudice, ban websites, organizations, and people on matters of public concern in a public forum. While the clause has been stretched, it was never meant for throttling the First Amendment, or censoring political opponents.

Cases can be imagined in which damaged, disenfranchised, removed individuals, companies, organizations, and politicians claim the government has sanctioned social media to act as an agent of political censorship, punishing viewpoints, violating the Constitution. Ultimately, no statute protects social media from owning that liability.

Third, social media – if ever immune – has graduated. They are not “common carriers,” but exercise “editorial control.” They are a “public forum,” government-protected venue for free speech, debate, and assembly. As such, they are on a collision course with general liability. The Supreme Court has foreshadowed this. See, e.g., https://www.freedomforuminstitute.org/first-amendment-center/topics/freedom-of-speech-2/internet-first-amendment; https://www.merriam-webster.com/legal/public%20forum; https://www.law.cornell.edu/constitution-conan/amendment-1/the-public-forum; https://www.law.cornell.edu/supremecourt/text/15-1194.

Fourth, antitrust laws – reigning in monopolies – are being trained on social media, companies censoring, limiting competition, colluding, being predatory, erecting barriers to entry. Antitrust laws assure competition, bar unfair advantage, level the field. Already, 46 states have filed antitrust suits. The Federal Trade Commission filed for “illegal monopolization.” See, e.g., https://www.cbsnews.com/news/facebook-antitrust-lawsuit-ftc-46-states-instagram-whatsapp/; https://www.ftc.gov/news-events/press-releases/2020/12/ftc-sues-facebook-illegal-monopolization.

Fifth, tort liability is expanding. Class action and individual suits are lining up, asserting tortious violations from defamation and invasion of privacy to economic torts. Expect more. See, e.g., https://www.foxnews.com/opinion/social-media-and-trial-lawyers-a-match-made-in-tort-hell;

Sixth, Congress is not the only body looking at regulation, or passing laws that promote lawsuits against social media. States are saying “enough.” High tech has run out their leash. https://www.wsj.com/articles/social-medias-liability-shield-is-under-assault-11606402800; https://arstechnica.com/tech-policy/2021/01/facebook-and-twitter-could-be-sued-for-censorship-under-proposed-state-law/.

Social media has overstepped. If 2020 made them look untouchable, 2021 will change that narrative. America has had enough, wants remedies, is sick of citizens being suppressed, foreign influence advanced, and lack of accountability. Stay tuned, pendulums always swing back. See, e.g.,  https://m.theepochtimes.com/big-tech-aiding-beijing-in-its-push-for-global-dominance-sen-blackburn-says_3713135.html; https://www.wsj.com/articles/the-constitution-can-crack-section-230-11611946851

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Malaki Kerr
8 months ago

I just like the helpful information you provide in your articles

Myrna S Wade
Myrna S Wade
3 years ago

The prediction is that censorship will hit a wall. I hope so.

‘Nonymous
‘Nonymous
3 years ago

With the quality in our congress, I’m not holding my breath in anticipation of the constitution being upheld.

Elizabeth Evans
Elizabeth Evans
3 years ago

Ok article, nothing new! What is so disturbing is that every facet of life now revolves around politics. Education, media (both left and right) , etc. My granddaughter is being kept in a Christian school to keep her in an educational environment and not a political one. What a culture we have created. We need change not more words. Action needs to be in the forefront! We are a country of talking heads and little action!!!

Dan
Dan
3 years ago

An optimistic view with a alot of ammo.

So far, the best money I have spent anywhere on services has been AMAC. Keep up the great job of defending our freedoms. AMAC for Americans of every generation!

CLIFFORD GERACI
CLIFFORD GERACI
3 years ago

Most of the damage has already been done, by manipulating the viewpoints of voters in the last election. I remember social media sites saying that they were influencers during the 2016 election, but they didn’t do enough. They proved how powerful they can be with the last.

Mark
Mark
3 years ago

All well and good. However, as long as the Socialists keep the fence and military around our country’s capital there is a clear and present ideation of control and suppression. When looking at the photos of our military and fencing in DC it clearly reminds me of cold war Russia.

Edward B. Irvin
Edward B. Irvin
3 years ago

Seems like a year too late.

Brian w
Brian w
3 years ago

Unless people stand up and say no more this will continue to happen and will get worse. Unfortunately, the number of people that want this type of government is growing while the rest just sit on there hands.

LK Horton
LK Horton
3 years ago

To take a stand against socialist activity, agendas, and programs STOP USING them! If we say we disagree with socialistic activity, agendas, and media programs and continue using them, we are endorsing them and their propaganda. We survived generations without any of the technical forums that are now available because of cell / smart phones, ipads, computers, etc., and we can certainly find ways to communicate / stay in touch without resorting to the socialistic propaganda apps and / or tools.

M. Beaumont
M. Beaumont
3 years ago

Good article, except I fear social media giants can fund the blocking of any action by conservatives. When we lose all of the Bill of Rights it will be time to fight for our country unless you want to live in the Soviet Union or China. Where are our elected representatives who took oaths to protect and uphold the Constitution?

hoser
hoser
3 years ago

I have no faith in the SCOTUS at all. Other than Thomas and Alito, they have been compromised

Stephen Russell
Stephen Russell
3 years ago

Social Media is Censorship plain & simple
Bust up Big Tech or lose 2022.
Only way to bust up unless Revoke Section 230 shakes up Big Tech

Thomas F. Olszewski
Thomas F. Olszewski
3 years ago

I never signed up for space book and never will. SCREW THEM.

Brenda Blunt
Brenda Blunt
3 years ago

How dare social media decide what is best. They are NOT dictators and should NOT be allowed to become one!! I am very capable of making and deciding on my own!!! They NEED to be held accountable and responsible just as I would be if I was spewing untruths and was taken to court!!

Felix
Felix
3 years ago

Thank you Bobby for all the legal mum bo jumbo, it is evident that the Federal Government does not honor our Constitution and the House and Senate, Executive and sadly the Judicial branches all do what is right in their own eyes, and ignore the Constitution, and are getting away with it. Just look at the last election and all the fraud committed by state governors, AG’s and judges, The HR1 bill to take election laws from the states, Biden telling boarder control, to ignore immigration laws, the proposed attack on the 2nd amendment and so on! The 10th amendment give the power back to the states and the people. The web site “convention of the states action” is set up to motivate the states and people to give us back the power to rein in the Feds. Check it out.

Barry Courtnay
Barry Courtnay
3 years ago

As I listen to a talk radio host this morning, he warned about what the Banks are doing to stop the middle class. He said this will be the biggest threat that we as Americans will face. I think that Facebook, Amazon, Twitter pretty much all high tec is and will be involved. As I said a couple of weeks ago they are keeping the people’s minds on everything but what we need to be involved in. Like, cancel culture, Dr. Seuss, what the stage looked like at Cpac. We need to be on top of what they are doing in Washington. This administration will do whatever they need to, to push their agenda through. Some states are taking measures to try to stop or at else slow down this assault. I hope all the Democrats that voted for Biden will be some of the first ones to feel this hate against America that their party has created. All this is moving very fast. WE need to make as much noise that is humanly possible. I believe Mr. Biden has lost all respect that he might have, Neandertal is not what a man wanting to unite the country should be calling many Americans.Kudos to Texas, South Dakota, Mississippi. Let the people that live in your state make decisions on how best to fight this FLU. Not government! Keep informed don’t let your guard down. PLEASE PRAY that this administration fails and fails soon.

Fairfield 59
Fairfield 59
3 years ago

Thankfully Parler is back up and now working on my phone. We have brought this on ourselves – trading liberty for security was not the way after 9-11 and it has ballooned into every aspect of society. American’s are risk takers, and we will step forward when we need to. Right now we need to very quickly. Enough is Enough!

Chuck
Chuck
3 years ago

Anyone know how to make bombs and use them?

Steve
Steve
3 years ago

Step out of the pot and fire and join together with like groups and form your own . You telling me a dope head college kid can run facebook . Even Uncle Joe’s gotta scream Come On Man !!

Eamonn Thomas Smyth
Eamonn Thomas Smyth
3 years ago

just remember Big Brother is watching you,George Orwell saw this comming!.

Art A
Art A
3 years ago

The under educated lemming masses stampeding off of the cliff. NO BRAIN–NO PAIN!! Stick a cell phone up my butt or in my ear and I am an expert spreader of ideas. The bricks are telling the construction folks how to pave a road. Too many low level conspirators. I’m so dumb that my brain is numb.

Hal Balthrop
Hal Balthrop
3 years ago

I wonder how long or to what extent the Biden sidin’ Dumbocrats will go to stiffle free speech (that they don’t like). AMAC better be careful … they are now a target for these criminal libtards.

Ron Howard
Ron Howard
3 years ago

There are so many solutions to many of our problems that we for some reason ignore, or don’t act on. There is much said about our problems, and questions about what to do about them, and little, or nothing done to take advantage of solutions right in front of our faces. Is it that complaining is so easy, while actually taking action on available solutions is too inconvenient? For example, Convention of States (Article V of the Constitution) could solve most problems with out of control government, placed there by the Founding Fathers as a solution to out of control government. It seems that most citizens know little about Article V, or are not very interested in pursuing it. Another example, just to name a couple, is that Violation of the Oath of Office is a Federal Crime. Every government office holder from state to federal takes the oath to “pr9tect and preserve the Constitution of the United States of America” yet members of Congress and the Senate violate that oath frequently, passing bills that are in violation of the Constitution, then relying on the courts to determine if they are Constitutional. Why are those who violate the oath of office never prosecuted? The law is there. It is up to those of us who are doing the complaining to utilize the solutions that are there for us. Government will not police themselves. it is up to the people to do it. I think more people doing the complaining, without researching and offering solutions, should spend more time finding and utilizing he solutions in front of our faces, don’t you?

AMAC censors comments that post links, although their articles are full of links, or I would include some here, but you can still go online with a subject matter and find links to many solutions to problems.

HocasPocas
HocasPocas
3 years ago

And swing back hard, they do

Jodi R
Jodi R
3 years ago

It’s about time. I don’t know how many of my own posts have been removed because they didn’t like the content. Of course it was about how poorly biden is doing compared to how Trump did in this amount of time in office.

Cynthia Howe
Cynthia Howe
3 years ago

I hope you are right

Harold Altman
Harold Altman
3 years ago

“We The People” must rise up and refuse to comply with some of the corrupt laws being passed or proposed by the Democrats…HR1 is going to the Senate floor so we must message our Senators and insist they vote that bill down…if they allow it to pass it will take control of elections from our state and allow the Democrats to have full control … please contact your Senators!

AValkyrie21
AValkyrie21
3 years ago

Revamp the Patriot Act! Edward SNOWDEN knew that this act was being used vis BIG TECH/FEDGoverment to SPY, on USA CITIZENS under Obama and continues NOW with 11 chosen BIG TECHEES on his Cabinet ‼️

John A. Fallon
John A. Fallon
3 years ago

It is time to remind our representatives who is the government, if they fail to honor thier oath of office and support the corrupt, greedy, treasonous actions of this ILLEGAL COMMUNIST REGIME then “WE THE PEOPLE” need to RECALL, REPLACE, INVESTIGATE AND PUNISH THE CORRUPT, SELF SERVING SWAMP RATS AND PUT THE LEGITIMATE PRESIDENT AND CONGRESSMEN IN OFFICE THAT WERE CHEATED OUT OF THIER VICTORIES!!!! MAGA!!!!

BAE
BAE
3 years ago

Why do the Republicans allow Facebook, Tweeter, etc. to get away with this bias? What do our politicians do for the American tax payer? Hmm, they get money and power to take care of themselves!!!

Danny Estridge
Danny Estridge
3 years ago

Don’t know much about this $tuff but know congress needs to get rid of 230. When congress actually becomes Congress, then I will start doing the capital “C” thing. You have to earn respect, not order it.

William Deroy
William Deroy
3 years ago

What bothers me is I read articles from major newspapers that use social media and like to express my opinion in the Comment Sections. But now I noticed there are no more comment sections on Yahoo News, Google News, Washington Post, NY Times, ect, ect, ect.. So if I cannot make a comment on any article that some reporter writes for a newspaper or cable news networks, what’s the sense of reading any of these articles these media outlets post? It is a waste of time.

William Deroy
William Deroy
3 years ago

Another point that gets me. Why can’t American Citizens ask Senators and Representatives from different states a question about something concerning their views, and why they voted a certain way on a bill? Americans can only ask their own states 2 Senators and the Representative from their own district questions. Doesn’t The Congress of the United States of America work for all the American people?

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