Opinion / Politics / Technology

Social Media – Colliding with Liability

social mediaAfter 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://ringdom.ru/wave-of-lawsuits-against-high-tech-companies-too/; 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

If You Enjoy Articles Like This - Subscribe to the AMAC Daily Newsletter
and Download the AMAC News App

Sign Up Today Download

If You Enjoy Articles Like This - Subscribe to the AMAC Daily Newsletter!

Sign Up Today
Read more articles by AMAC, Robert B. Charles
Subscribe
Notify of
57 Comments
Newest
Oldest Most Voted
Inline Feedbacks
View all comments
William Deroy
7 months 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?

William Deroy
7 months 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.

Danny Estridge
7 months 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.

BAE
7 months 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!!!

John A. Fallon
7 months 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!!!!

AValkyrie21
7 months 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 ‼️

Harold Altman
7 months 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!

Cynthia Howe
7 months ago

I hope you are right

Jodi R
7 months 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.

HocasPocas
7 months ago

And swing back hard, they do

Victoria Johnson
7 months ago
Reply to  HocasPocas

We can only hope under the Biden/Harris Justice Dept.

Ron Howard
7 months 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
7 months ago
Reply to  Ron Howard

I agree Ron. Convention of States is coming to the aid of the American citizens and Soros and friends are trying to interfere in their actions to keep American citizens pinned down by the government and their elite financial backers who are pushing for communism

Dave
7 months ago
Reply to  Ron Howard

A Constitutional Convention is a VERY DANGEROUS THING!!!
Regardless what you may be told, once a Con-Con is opened, it is IMPOSSIBLE to limit what clauses in our Constitution could be changed or eliminated.
Please do tell me, WHO in Washington DC would YOU trust to have UNLIMITED ABILITY to rewrite or even DELETE any clause in our Constitution???
I can’t think of ANYONE I’d trust with that power.

There is ABSOLUTELY NOTHING WRONG with our Constitution as it is written.
All that needs to happen is for ALL legislators, judges, or other officials ABIDE by the Constitution TO THE LETTER, PERIOD!
ANYONE who proposes or supports a bill that conflicts with a SINGLE PHRASE in the Constitution, should be prosecuted and held accountable for their crime.

John
7 months ago
Reply to  Dave

Article V in The Constitution and calling a Convention of States with the required number of states participating is not a Constitutional Convention.

The current goal of Constitution of States initiatives is specific to the following:

Our convention would only allow the states to discuss amendments that, “limit the power and jurisdiction of the federal government, impose fiscal restraints, and place term limits on federal officials.”

The trick is that all participating states must pass their COS resolutions and submit to Congress with the exact same wording.

This ensures that only the specific items on the passed resolutions are discussed.

Harold Altman
7 months ago
Reply to  John

I certainly agree and thank you for clarifying the intent of Article V. I do pray that the states join in and subdue our runaway federal government…

Kathleen Keegan
7 months ago
Reply to  Ron Howard

I agree with you completely but HOW do we do this or anything with a corrupt government like we have now.

Sharon
7 months ago

Yes, what do we as Patriots do?

JoEllen Clayton
7 months ago
Reply to  Ron Howard

Article V

Article V Annotated

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

Hal Balthrop
7 months 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.

Art A
7 months 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.

Eamonn Thomas Smyth
7 months ago

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

Steve
7 months 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 !!

Chuck
7 months ago

Anyone know how to make bombs and use them?

Fairfield 59
7 months 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!

Barry Courtnay
7 months 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.

TERRY K HURLBURT
7 months ago
Reply to  Barry Courtnay

Since they own both houses of congress, there will be NO peaceful means of removing the tyrants from office. OPEN DEFIANCE and NON COMPLIANCE with UNLAWFUL ACTS, EO’S, & so called “LAW” is the most effective without violence. REFUSE TO BE GOVERNED by the tyrants.

Felix
7 months 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.

Dave
7 months ago
Reply to  Felix

I agree with most of your points, but a Constitutional Convention is a VERY DANGEROUS THING!!!
Regardless what you may be told, once a Con-Con is opened, it is IMPOSSIBLE to limit what clauses in our Constitution could be changed or eliminated.
Please do tell me, WHO in Washington DC would YOU trust to have UNLIMITED ABILITY to rewrite or even DELETE any clause in our Constitution???
I can’t think of ANYONE I’d trust with that power.

There is ABSOLUTELY NOTHING WRONG with our Constitution as it is written.
All that needs to happen is for ALL legislators, judges, or other officials ABIDE by the Constitution TO THE LETTER, PERIOD!
ANYONE who proposes or supports a bill that conflicts with a SINGLE PHRASE in the Constitution, should be prosecuted and held accountable for their crime.

Felix
7 months ago
Reply to  Dave

I love the constitution and think if it was adhered to it would be great. The biggest flaw is not having term limits for the House and Senate, by not having term limits creates a petri dish for unlimited power to grow and grow through these politicians being under the thumb of lobbyist, case in point the teachers union, . As far as WHO in Washington do I trust, there are very few, but that is the point of a convention of the states is to take some of the power from Washington and bring it back to the people and the states. Congress needs to be reigned in!

Brenda Blunt
7 months 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!!

57
0
Would love your thoughts, please comment.x
()
x