Little Brother Or Big Brother: The Public Applauds As Free Speech Dies On The Internet

166px-Ad_apple_1984_2Below is my column in USA Today on the fight between Trump and Twitter. As discussed below, this is a fight not for free speech but who will control free speech. Democrats want speech controls through private companies while the Administration wants speech controls through government agencies.  The choice is between Little Brother and Big Brother.

Here is the column:

President Donald Trump’s executive order on social media has left more questions than answers on the ability of the government to regulate companies like Twitter. However, one thing is abundantly clear: the loser in this fight will be free speech. Indeed, the striking thing about this controversy is neither the Democrats nor the Republicans are actually advocating for free speech, just different forms of speech controls. Civil libertarians are faced with the “choice” offered by Henry Ford on colors for the Model T Ford “any color … so long as it is black.” In some ways, Trump and Twitter are offering a similar choice on the new model for free speech: Americans can chose between government censorship and private censorship.

The heart of the executive order is Section 230 of the Communications Decency Act. The 1996 legislation signed into law by President Bill Clinton was largely an attempt to regulate pornography and struck down in significant part as unconstitutional. Section 230, however, survived and grants any “interactive computer service” (including Internet and social media companies) immunity from most lawsuits over content posted by users. Courts have interpreted the provision to give sweeping immunity for companies like Twitter and Facebook because they simply supply a forum for others to express themselves.

For years, Democrats leaders have called for companies like Facebook and Twitter to monitor and delete material that they deem offensive, false, or misleading. Former Vice President Joe Biden declared in January, “Section 230 should be revoked, immediately should be revoked, number one.” In his view, the mere fact that Twitter is allowing others to speak freely is the same as “propagating falsehoods they know to be false.”

Congressional leaders like House Intelligence Committee Chair Adam Schiff have called for labeling and removal of material with some members directly threatening a legislative crackdown. This week, Speaker Nancy Pelosi denounced Facebook CEO Mark Zuckerberg for resisting speech monitoring and censorship as a matter of free speech. Pelosi lashed out that those who want to preserve a free speech zone are “all about making money,” ignoring free speech advocates who have no financial interest in these companies. Pelosi said that opposing such monitoring means that social media companies simply want “to make money at the expense of the truth and the facts” and are trying to “hide under the freedom of speech.”

Where Democrats want to either remove all protections or force private censorship, Trump seems to want to control protections and create a system of government censorship. Again, the choice allows citizens to select any option so long as it is censorship.

The ‘Big Brother’ problem

There are ample reasons why the executive order is unlikely to succeed in any meaningful way. While the scope of Section 230 is largely the result of judicial interpretation, even judges who have criticized the sweeping immunity have concluded that it must be treated as the intent of Congress, which has done nothing to change it. If the administration seeks to change the scope of this law through agency action at the Federal Communications Commission, it will be immediately and legitimately challenged.

Any attempt to unilaterally alter such a federal law is precisely what Republicans objected to in the Obama administration, when the president repeatedly ordered changes denied by the legislative branch. Such circumvention was unconstitutional under Obama and it would be unconstitutional under Trump. President Trump has declared that he will also be seeking legislative changes, a move that could negate some constitutional challenges. However, the elimination of all protection through legislation (as demanded by Biden) would likely trigger greater limits on expression.

The executive order also empowers the Federal Trade Commission to investigate bias in companies like Twitter removing or labeling material. Such investigations may not in themselves be unlawful, but any action taken against companies for their policies on accuracy would raise serious questions of government censorship, the ultimate scourge under the First Amendment.

Ironically, Democrats now defending Twitter are some of the same members who were previously calling for a possible government crackdown. Moreover, these members have long opposed the concept of free speech protections for corporations, recognized in such cases as Citizen’s United. Nevertheless, they would be on good ground to oppose unilateral executive action despite their silence when President Obama engaged in the same circumvention of Congress in areas ranging from immigration to the environment.

The Little Brother problem

The First Amendment is designed to address government restrictions on free speech. As a private entity, Twitter is not the subject of that amendment. However, private companies can still destroy free speech through private censorship. It is called the “Little Brother problem.” President Trump can be chastised for converting a “Little Brother” into a “Big Brother” problem. However, that does alter the fundamental threat to free speech.

What Twitter did on the Trump tweets — adding fact checking links — was wrong. It was intervening on a political statement to inject its views into the communications between President Trump and his roughly 80 million followers. It is precisely what Democrats have demanded for years and what civil libertarians have vehemently opposed.

Twitter is demanding immunity under Section 230 because it merely supplies a forum for the discussion of others. However, it now wants to be an active part of that discussion. Many disagree on the subject of mail-in voting and its potential for fraud. The warnings posted by Twitter (and deletions demanded by Democrats) invites arbitrary and biased monitoring. Twitter has not posted such warnings on the many false statements made about the Russian investigation or the Steele Dossier or other subjects.

Much of our free speech today occurs on private sites like Twitter and Facebook. The Democrats want private companies to censor or label statements deemed misleading. Such a system would evade First Amendment conflict but it would have an even greater likely impact on free speech than direct government monitoring.

Social media has long been one of the few areas of free and robust speech. While Trump and his critics are now in a fierce battle over the Twitter controversy, it is largely a battle over control of speech, not a battle for free speech. What is striking is how we have all become chumps in rooting for one side or the other when both would curtail our ability to speak freely on social media. It is like being offered the Matrix choice of a blue and red pill, but both leave you in Matrix.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and a member of USA TODAY’s Board of Contributors. Follow him on Twitter: @JonathanTurley

70 thoughts on “Little Brother Or Big Brother: The Public Applauds As Free Speech Dies On The Internet”

  1. You are SO RIGHT about the bias:
    Twitter has not posted such warnings on the many false statements made about the Russian investigation or the Steele Dossier or other subjects.

    They are no longer merely a platform, without liability.
    Flynn should sue them; also Carter Page and others who were defamed and libeled — with Twitters acceptance.

    And, as is shown by arrests and convictions, voter fraud is an actual, real problem. Lack of testing means we don’t know how bad it is.

  2. Google, Twitter, and Facebook can’t be accurately characterized as “Little Brother.” They are just as much “Big Brother” as the Government version of “Big Brother.” But Prof. Turley’s general observation seems correct that the current “differences” are “largely a battle over control of speech, not a battle for free speech.” In other words, it’s really a turf issue disguised to appear like a philosophical dichotomy. We’ve seen false dichotomies before. “Fascism and communism are not two opposites, but two rival gangs fighting over the same territory . . . both are variants of statism, based on the collectivist principle that man is the rightless slave of the state.”–Ayn Rand, “‘Extremism,’ or the Art of Smearing,” Capitalism: The Unknown Ideal, 180.

    1. Wrong. One group L already has the reigns. The other group R can apparently do nothing about it.
      If they R remove 230, the initial group L bans them all freely, as before, only more so.
      So the 2nd group R has no control, that’s why they’re R currently flapping in the wind, and have been for years.

  3. Prof Turley says, “What is striking is how we have all become chumps in rooting for one side or the other ”

    I’m glad he says something that is hard to argue against.

    Seems to me that there is a pretty simple solution to this problem (if there really be a problem).
    If twitter starts labeling or fact checking tweets then that is no longer 3rd party input and it therefore is not subject to the protections under section 230. That means that if people feel they are harmed by the positions twitter is taking they can use the legal remedy available and sue Twitter.

    1. ““What is striking is how we have all become chumps in rooting for one side or the other ”
      “I’m glad he says something that is hard to argue against. ”
      WRONG. One side has been doing wrong for years – that’s the social media silicon valley side.
      The other side is innocent and oppressed.
      So one side has literally been chumps, criminal partisan bigot chumps all for the crime that has been ongoing.

      Now, when their opposition does the only thing it apparently can to try to bring back the level playing field, make a threat, or remind of the rules, they are in the same boat ?
      LAUGHING at your lib spun lies.

  4. Congress has no power to claim or exercise dominion over private property. The 5th Amendment right to private property is not qualified by the Constitution and is, therefore, absolute. Social media platforms are private property. Competition is always the solution in free markets. Command is the solution in dictatorships.

    The “manifest tenor” of the Constitution must prevail. America is not an ochlocracy. America is not governed by whim or fiat. The singular America failure has been the judicial branch, with emphasis on the Supreme Court.
    ________________________________________________________________________

    5th Amendment

    “No person shall…be deprived of…property,…nor shall private property be taken…”
    __________________________________________________________________

    “…courts…must…declare all acts contrary to the manifest tenor of the Constitution void.”

    “[A] limited Constitution … can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing … To deny this would be to affirm … that men acting by virtue of powers may do not only what their powers do not authorize, but what they forbid.”

    – Alexander Hamilton

  5. Considering the actions of the NSA to use private companies to gather metadata and spy on Americans, I’d hazard it is essentially all Big Brother.

  6. Get Obama’s left in place government lib army out. Fire them all. Call it collusion with China, a budget admin reorder, who cares. Out.

    Nearly 70% of SES Are About to Experience Their First Presidential Transition as Executives

    Obama’s minions made up 70%, he increased it silently almost no R’s have a clue out here.

    https://www.govexec.com/management/2016/12/nearly-70-percent-ses-will-experience-their-first-presidential-transition-senior-executives-trump/134024/

    Senior Executive Service stands between the Executive Branch and Cabinet and Presidential appointed and the bureaucracy. They make the rules, twist the rules, bend the rules, and tell the new admin what it can and cannot do.

  7. “Ironically, Democrats now defending Twitter are some of the same members who were previously calling for a possible government crackdown. ”

    Like Biden the idiot and Pelosi the clueless and Schiff the liar – DEMOCRATS WANT IT ALL, the inherent left wing bias AND THE GOVERNMENT CRACKDOWN.

    It’s not ironic it’s FASCISM.

        1. I wholeheartedly agree, we are so sorry you discovered this blog.

          You might considered changing your location to the Karl Marx Parasite Blog.

      1. Change your name. You’ll feel better. Make it something coherent and rational, something simple like Simon.

  8. The Democrats couldn’t behave. They used their silicon valley power in bad faith and with hatred and total disregard to the law and the rules they agreed to.

    If the democrats had done even close to their agreements, we wouldn’t be seeing the possibility that the open internet gets hammered tight by a bunch of minders, which will be left wing, again, only with much more power.

    Thus the democrats have chosen this path for a reason. When the smoke clears, they will have 10x or 100X the banning and silencing going on.

    “Democrats want speech controls through private companies while the Administration wants speech controls through government agencies. ” BULLHOCKEY

    Democrats HAVE speech controls through private companies while the Administration wants speech controls EQUAL, government agencies are it’s only legal choice.

    Don’t take the legal choice R’s. You’re going to have to play smart and dirty and backstabbing and lying to their faces and twisting them into their own game to stop them.

    1. If I was Trump, I’d have the FCC (and whatever other agencies work) suddenly packed with the right conservos, the libs off and in a ditch, and the social media would be given gigantic fines that accumulate each day they don’t remove their one sided CRUD algos and psycho CEO’s and hundreds of left wing hand picked censors banning the right.

      The intel NSA and others would be raking in their internal phone calls in a counter intel do not destroy the USA with China as the excuse if necessary… and printing them out for OAN and other alt right media networks.

      The other conserve voices would be given clue and be signing NDAs to propagate the left’s crimes against half the USA and FBI would be raiding with the big guns going Roger Stone style. When the dems and libs whined the response would be “this isn’t one man said to have lied to Congress, it’s HALF our population being disenfranchised.”

      DO WHAT IT TAKES.

  9. I have a hand held channel changer for my tv. When Pelotsee comes on the screen I move to another channel.

    1. I no longer need a remote clicker for the TV. I just am able to think it to a different channel!!

  10. My question is obvious. Why would free speech need to be controlled at all. Have we gotten so far from our origins as to need control at all. What part of FREE is missing in our understanding here. And also, ‘caveat emptor’.

    1. Yes, the libs are nutso and the new censors. We don’t get conservos decrying adultery porn mtv and other garbage they lost the battle and so society decays.
      The libs/democrat nuttos now want the rest of their tyranny they have been implementing. Shut up all conservos, alt right can be banned and ripped from creidt cards and other payment processors and banks, including gun dealers, Tea Party types, Alex Jones, 32,000 other Trump sided youtubes some with channels larger than the MSM viewship…

      The next move is make social media a life unto itself, remove the exemption, then they can clamp down on everything and control it all !

      Once they ban speech freedom, who cares, the SJW’s will be delirious. Nextm they will announce how well it has gone online (for them – not the half of the USA they banned) , and will demand the general every day out in the world laws follow suit 100%.

    2. So AC, when your being trampled to death by a stampeding theater crowd, you yell out ‘caveat emptor’? So now you know why free speech has limits.

    3. yes we have gone so far from a high quality population to a low one that the blessings of ordered liberty are now going away. the American population is so pathetic and weak and stupid now freedom is no longer feasible

      we will do better under Big Brother. private corporate tyrannies can’t be unelected. at least we still have some elections. you don’t get to vote jack dorsey out of office.

      all liberty emerges from a crucible of war. maybe we just need another civil war. maybe have at it! there are ten thousand riot leaders who are the enemy and should be removed as a cancer from society. for starters

      they want war, let them have it

      1. Yes, our biggest problem is old white people like Kurtz who have convinced themselves how terrible their lives are because their guy can’t accuse innocent people of murder and have it broadcast instantly to his phone. – well, actually he can. Next thing will be the rubber hoses in the FBI basement! Boo hoo. Poor Kurtz! This is Patrick Henry stuff right here in River City!

        1. I’m a productive member of society who pays taxes and helps people. I have no arrests and no convictions

          I never committed arson, i never rioted, i never looted.

          But stupid old white fools like Book think I am the problem

          This is why a race war is not exactly what we need right now, there are so many stupid white folks like book, and so many evil ones like the anarchist freaks organizing the riots. The white race is certainly not “supreme” at anything besides making money, that’s pretty obvious.

          some kind of brief action to suppress this lawless disorder and rebellion, lead by government, is in order. a brutal crackdown, followed by a loosening back to ordered liberty, once the worst ten thousand miscreants have been removed from society.

          1. Kurtz, you were complaining about how weak Americans were and then went and proved it with a “lets play army” BS. You have no historical or moral;perspective if you think what we are going through is some kind of police state or anarchy. It’s not close to what those things really are, and your throwing a tantrum is about as weak as it gets. Suck it up. I don’t like your opinions anymore than you like mine, but I’m sane enough to know you’re not a fascist with a secret agenda to enslave me and my family.

            F….g baby!

            1. He’s a bit smarter than you. The rioting and violence has gone unchecked enough since Trump campaign election rallies, not to mention the Ron Paul homeland security and fusion center attacks, and the left screeding about white racist nazis in every public space there is with Obama’s Napolitano stoking the flames.

              Since the attacks have been on the peaceful not the violent, the violence has grown. Now it’s nationwide.

              We saw the FBI DOJ intel agencies(17 known) the IRS, and likely the other 200 or whatever the number I forget though I just saw it yesterday, corrupted to the left. Like the msm and academia.

              Recently we’ve seen police forces standing down while antifa attacks the right, so they have been working on that. This is political, not general law enforcement, thus you see the MN murder and results.

              So we know what’s going on. When Clinton was first in, the purges of the bureaucracy were reported. Some made the news, some didn’t. Some you had to read insider books to discover, since even then the media played cover, like they did for JFK prior.

              So, we need a good reversal. It’s gone too far askew with people we do not recognize as democrats. They are a new more corrupt and dangerous type. At the same time the long played “republicans are big business” has also vastly changed to “democrats are big business, the biggest, the stock market has been reordered and taken over. (the 90’s Clinton 2nd term).

              Then we had Obama and his bureau purgings and SES 5,000 placements. I skip GWB – he just increased gov power post 911, Obama embraced and furthered.

              So it’s been going one way, with dems/left gaining ever more. Now the techno science elite cracks down, and the dems embrace it. After all, the dems have been claiming tyranny with global warming and muh science.
              Another fascist cog in the dems belt.

              Should I just say you’ve won ? Well, what have you won. A tyranny, if you can increase it and keep it.

              Trump has shown the pathetic weak repubs how to fight back. Like the author above, I don’t expect in this case wins for more freedom – your side will take it all, while whining it was crushed as it bans and attacks political opposition like the commie doctrines they embrace. Of course, I may be pleasantly surprised.

              The outcome will tell me more about how far gone DC is. While your side tells lies about it for years in all probability, like Adam Schiff taught you, or, imitated your side. Lies, on nothing.

              The right, I want lying on everything if need be like your side does, to straighten out the injustice. There is a difference.
              Lies to create a non existent crime conspiracy a total fraud and just plain wrong.
              Lies to correct a huge and ongoing known open public injustice of the 1st amendment denied half the USA.

              It’s what republicans have a hard time explaining (to themselves it appears). They have fallen into their own turn the other cheek trap, we can’t be like them or we are as bad as they are.

              Congratulations on how mucky your side is. I do hope you are not proud.

  11. When Trump set up his account, he agreed to abide by their rules. He has consistently violated those rules. His account should have been suspended a long time ago.

    If you want to talk about free speech, let’s do that but let’s not forget that “conservatives” aka Republicans are always about protecting the sanctity of corporate power when it comes to workers rights, pollution and just about everything else but this time it’s their “ox” being gored and they don’t like it.

    1. Could you be more exact in specifically detailing the violation of the rules of Twitter?
      Further, is he just 1 of a few, or has twitter bent over backwards to allow more expression?
      But now seems that twitter bans or take-down’s are of conservative points of view by a HUGE margin. And that does not look very good for Twitter. Or a FREE SPEECH environment that twitter likes to promote.

        1. BTB, Your snide reply was just as I expected. As you have so carefully dodged my question of detailing the rules violation, I would guess there have been none?
          What I said was ” take-down’s are of conservative points of view by a HUGE margin”. I did not say they were exclusive, which is how you so stupidly crafted your snide reply.

    1. Except that our lib silicon valley hasn’t been behaving, and we are told there is nothing to be done about it but threaten destruction. Thus, with your stance, we can get the outcome you describe. 230 destroyed and silicon valley banning all conservatives all right all tea party and every racist they see under every unleashed dog.
      Then big and little brother will be one big leftist party.

      I advocate something else in my other posts.
      A lot of someones had better step up, and it had better be as sneaky and as underhanded as muh russia, but move toward the goal of forcing the social medias back to a fair and open non biased platform without their insane lies called fact checks. I don’t care what they have to do to achieve it. 300 direct lives and a thousand plus were destroyed by Comey’s and Mueller’s and Rosenstein’s plot, and I expect equal or exceeding retaliation in Trump’s stated goal, a goal that would restore the 1st amendment, not destroy an election.

      1. Shakdi – Gab is an alternative. If Trump took his traffic over there, Twitter would die. 😉

        1. Besides the pure fantasy component, you have the abandon law and what is true and just and the American way. One cannot throw away giant criminal silicon behemoths to the left’s online tyranny then claim victory in their own tiny quadrant.
          What is just is social media giants forced into compliance on their prior agreement, period. Nothing less.
          Are we America or are we pathetic, are we China, DPRK, Cuba or a strange equivalence ?
          No. We are not flee to Gab.
          We are to be respected, by ourselves. The cheaters are to be brought in line.

          1. Shakdi – moving to Gab is how the Free Market works. You do not like a product, find a competitive product.

            1. Paul, following the law is how social media has to work. It doesn’t and hasn’t for some time.
              Gab is just another corrupt online forum, so the bait and switch liberalism doesn’t work, except on idiots.
              Once Gab is totally corrupt beyond the former, and it will be because the former weren’t brought into line, will you send me off to your “free market” death somewhere else ?

              Yes, you would. No go Paul. Go gab your criminal cover up conspiracy to some retards.

          2. What is just is social media giants forced into compliance on their prior agreement, period.
            _____________________________________________________________
            What agreement are they not in compliance with?

            If internet sites are not legally responsible for content that others create that does not mean they have agreed to put up with any content people throw at them.

  12. I would argue that since Twitter, Facebook, and other social media sites accept government intervention in form of Section 230, they should be bound under the same free-speech rules as the government itself.

    While this may not be a valid legal argument, I think it would be the best solution.

  13. The Democrats’ problem is that Free Speech can derail their Narratives of racial injustice, open borders, gender silliness, and free crap for black welfare mothers (and white trash ones too).

    But if we are going to stifle free speech, how about we start with protesting! No more protests!

    Squeeky Fromm
    Girl Reporter

    1. No, they can protest. So can we. What they cannot do is invade and block our protests. What they cannot do is have mayors ordering police to allow antifa and arrest proud boys.

      Disarm the right in their own protests, and allow club knife shield and $150 new baton wielding left wingers surround the exits and beat us on the way out while the police stand down and watch, claiming, “we were told”.

  14. 1. Twitter is a business, not a governmental entity, and as such has no 1st amendment obligations.

    2. Nothing about Twitter upholding it’s pretty lax standards leads logically to rescinding it’s Section 230 protection from liability for 3rd party posts, though JT agrees with Trump’s trying to wield that stupid cudgel. By the way, Biden is wrong for advocating for removing that protection.

    3. If Trump or JT or Biden don’t like Twitter’s standards they should use another product.

    1. it is subsidized by the taxpayers who pay for the law and order that twitter now is disrupting.

      twitter is diseased. it can be cured however. once the riots are quelled, twitter needs to be addressed for its abuse of section 230 immunity.

  15. You have well enumerated the problem which is more about who is willing to abuse a ruling that has provided them protection. Twitter for years claimed immunity but now it is acting outside of a ruling that it banked on for its protection. It’s like a person who agrees with stop lights but feels they can personnally decide when to run one and not be ticketed. It’s just hypocrisy.

    1. Actually twitter hasn’t abused the ruling at all. It simply adhered to its own policies and actually enforced them.

      The irony here is if you remove those protections twitter will have a much greater incentive to remove trump’s account in order to avoid lawsuits. If will give twitter more reason to censor more posts.

      Jonathan Turley keeps leaving out the important distinction that twitter is still a private company which the constitution doesn’t obligate it to 1st amendment prohibitions. The constitution only prohibits government. Turley has not addressed this issue more substantively.

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