For years, I have criticized those who have called for increased censorship on the Internet, including regulation of political speech by companies like Facebook and Twitter. There is a legitimate debate over the continued use of Section 230 of the Communications Decency Act by these companies when they are engaged in such censorship (and alleged viewpoint bias). However, President Donald Trump’s call for Twitter to take down a parody of Senate Majority Leader Mitch McConnell is wrong on a number of levels. It would only fuel the erosion of free speech on the Internet in curtailing political commentary.
Yesterday, President Trump struck out at the picture of McConnell in a Russian military uniform:
The tweet says:
Why does Twitter leave phony pictures like this up, but take down Republican/Conservative pictures and statements that are true? Mitch must fight back and repeal Section 230, immediately. Stop biased Big Tech before they stop you!
It is a particularly curious objection from a politician who regularly parodies his political opponents with insulting names and descriptions. Parody is one of the oldest forms of political discourse. Since Hegemon of Thasos, parodia has been a literary device and an important form of political speech. Parody and satire have long been used to emphasize (and often exaggerate) political objections to our leaders.
In White v. Samsung Elec. Am., Inc., 989 F.2d 1512, 1519 (9th Cir. 1993), then Chief Judge Alex Kozinski wrote in dissent that “The First Amendment isn’t just about religion or politics – it’s also about protecting the free development of our national culture. Parody, humor, irreverence are all vital components of the marketplace of ideas.” The Supreme Court has repeated affirmed the importance of parody and satire as protected speech. In Campbell v. Acuff-Music, Inc., 510 U.S. 569, 579 (1994). Justice David Souter noted that “parody has an obvious claim to transformative value.”
Even vulgar parodies have been protected like the fake advertisement featuring evangelical minister Jerry Falwell: “At the heart of the First Amendment is the recognition of the fundamental importance of the free flow of ideas and opinions on matters of public interest and concern. ‘[T]he freedom to speak one’s mind is not only an aspect of individual liberty–and thus a good unto itself–but also is essential to the common quest for truth and the vitality of society as a whole.'” Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 50-51 (1987) (quoting Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 503-04 (1984)).
This parody of McConnell as “Moscow Mitch” may be unfair and insulting but it is quintessential political speech and should be protected. There is a legitimate criticism of companies like Twitter and Facebook for biased policies, but that should be part of a call for less, not more, censorship.
It is not just Trump who is calling for increased censorship. I have criticized Democratic leaders who have made such limitation and regulation of free speech a central cause for their party.
Hillary Clinton has demanded that political speech be regulated to avoid the “manipulation of information” and stated that Facebook founder Mark Zuckerberg “should pay a price for what he is doing to our democracy” by refusing to take down opposition postings. In Europe, free speech rights are in a free fall, and countries such as France and Germany are imposing legal penalties designed to censor speech across the world. Joe Biden has pushed for these companies to delete criticism of mail-in voting.
Many of us in the free speech community have warned of the growing insatiable appetite for censorship in the West. We have been losing the fight, and free speech opponents are now capitalizing on the opportunity presented by the pandemic. Representative Adam Schiff sent a message to the heads of Google, Twitter, and YouTube demanding censorship of anything deemed “misinformation” and “false information.” Schiff told the companies that they needed “to remove or limit content” and that, “while taking down harmful misinformation is a crucial step”, they also needed to educate “those users who accessed it” by making available the true facts.
All of these calls from the left and the right are efforts to control the speech of political critics and dissidents. These companies should be criticized for the bias shown in past actions, which I have previously addressed. However, do not be misled by the fact that these voices are coming from opposite sides of our political debate. They are unified in the desire to curtail the most powerful forum for free speech in the history of humanity: the Internet. It is the bane of the existence of politicians around the world and they want to control it. To do that, they have to get free citizens to call for their own censorship. Many have yielded to that siren’s call to the peril of free speech.
That is far too high a price to pay to protect Sen. McConnell from the insults of political parody.
Social media cannot have it both ways. They cannot ask for protections as a public square, and not a publisher, while simultaneously behaving like a publisher who censors based on content.
The phone company is not allowed to listen in on our conversations, and hang up on us mid sentence if it doesn’t like what we talk about with our friends.
We need a digital public square where everyone could talk, just like they were having lunch in a park or sitting under a tree outside. If it’s legal to say outside, it should be allowed to say on an online social media platform.
Government created digital spaces tend to be clunky and inefficient. The Exchanges come to mind. The private sector excelled at expanding online space. We rely on the private sector to build a digital public square. But they must treat it as such. Which means that the infrastructure cannot be held responsible for what is said, and it also cannot censor whomever gathers there.
So what’s the answer? Pass a law banning any content censorship? Should there be departments in each company that sift through postings looking for illegal content? Currently, such departments that engage in censorship have a very difficult working environment, as they view seriously disturbing content. An example is when they remove snuff videos and report to law enforcement. Should it be private industry that looks for illegal content, or leave it up to law enforcement?
Should there be a creation of an entirely new public square, by a company not affiliated with FB, Twitter, Instagram, or any other tech giant?
I think that there needs to be a law protecting true public squares online, free of any censorship as infringing on the First Amendment. They need to be treated as public spaces, not private establishments. And ONLY those types of forums should be granted Section 230 protection.
One could make a strong constitutional argument that the “Communications Decency Act” itself and much of what “government censoring agencies” do is blatantly illegal under the First Amendment. A government entity is abridging freedom of speech without a citizen’s consent, precisely what is outlawed by the First Amendment. Hollywood created the movie/TV ratings system (PG, R, Mature Audiences, etc) to empower parents and adults [citizens] to have that authority, not a government official, since it’s illegal under the First Amendment. The entire premise is illegal under the “supreme law of the land” for the United States.
Lampooning McConnell as a puppet of Israel would be much more appropriate.
Turley’s call for free speech on the internet is fine except it does not account for the evident bias which belies the section 230 immunity that neutral ISPs properly have.
Twitter is not a neutral ISP. It actively curates its content which should take it out from under sec 230
We can save section 230 and support the openness of the internet but curtailing the abusive bias of Facebook twitter and google is absolutely necessary to do, if indeed that is the long term goal.
I was just thinking the same thing. And I was going to write something almost identical to what you have written. You did a great job.
The Russians have so many different uniforms that I can’t tell whether this is one or merely a parody of one.
i know you’re trying to be funny benson but it’s clearly a red army coat and ushanka
Mr Kurtz —- It might be a USSR army officer style. In case you hadn’t noticed, that went out 29 years ago.
Fairly sure that it is a USSR army coat from a surplus store. It is missing the shoulder epaulets.
💂
“Glenn Greenwald: Why The Media Is SILENT On Julian Assange’s Trial”
The Turley Twits are at it again, downthread.
Agreed and besides I don’t do social media it’s full of nothing important.
I only object to your nonsense about Trump making a “curious objection.” There is nothing “curious” about Trump’s objection. What he is doing is agreeing with you Professor Turley. He is not saying that Twitter should so much take this down, he is pointing out a ridiculous double standard where parodies, dishonestly, bias, and or exaggerations are ok for one side and not the other. Where rules only apply to one side and not another, where fiull on lies and parody seem to be fine for one side, but extreme vetting is required on the other. This smacks at dicrimination. So here the President is making the point when it comes to the bias of a widely used social media platform that is acting as a third party interfering in an election by giving preferential treatment to one group and actively working to silence another.
I guess maybe after being attacked several times in the past Professor. Turley is finally capitulating to the Trump hating crowd…trying to get back in their good graces with the peripheral comments and barbs…
Nobody outside the Dear Leader deserves the scorn and disrespect than Moscow Mitch. One has to wonder how much Moscow Mitch made on that Russian plant in Kentucky.
Nothing like true believers in debunked conspiracy theories…