No, Twitter Should Not Take Down The McConnell Parody

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.

55 thoughts on “No, Twitter Should Not Take Down The McConnell Parody”

  1. It is less an “objection” than it is a question, an observation, from the President … By questioning Facebook regarding the ‘McConnell Tweet’ the President has made a critical – and valid – comparison. Personally, I suspect he would be quite comfortable were Facebook to totally exemplify free speech by leaving everything up.

  2. Turley Identifies As Member Of ‘Free Speech Community’

    In his column above the professor writes: “Many of us in the free speech community have warned of–

    As a long time commenter on this blog, I can report that Turley allows a malicious troll to smear other commentors on a routine basis. What’s more, anyone trolling this troll is likely to have their comments deleted.

    So when Turley says he’s a member of the ‘Free Speech Community’, that means ‘free speech for malicious trolls’ (at the expense of everyone else).

      1. Svelaz you wish you had 10″. Sweetheart, go to your hair salon in West Hollywood and twirl on your plug, so if that brings you more customers for you to fluff

            1. REGARDING ABOVE:

              Turley’s troll wants to show how smug he is by weighing in here.

              1. REGARDING ABOVE:

                I am Seth Warner & Anonymous. And gives +8.1 rating. Smug & pompous troll doesn’t like it.

                1. I am the troll in question; a dull, nerdy loser with no imagination. But I am a strongly motivated dirty trickster. And because I am totally loyal to Donald Trump, Professor Turley allows me to smear any liberal on these threads.

  3. The question is not one of taking it down, it is a question as to how courts would rule if one parody is left up and others, promoting positions opposed by Twitter leadership, are taken down. Would that inconsistency make Twitter an editor, and not ISP under 230 in the eyes of the law?

  4. The person who photo shopped this needs to explore some of the military uniforms ranked. The females do better than guys. Trust me, it’s true.

  5. I don’t see in the tweet that Turley provided where Trump asks for the tweet to be taken down. Is Turley reading into the tweet to make the point he always makes? The point of Trump’s tweet was the unfairness of Twitter and its hiding behind an exemption it shouldn’t have anymore.

  6. Meanwhile, Turley — who likes to write about speech issues — is silent about the DOJ having applied to take over on the Carroll v. Trump defamation suit.

    Carroll’s lawyer’s response:
    “Almost exactly one month ago today, a New York state court rejected Donald Trump’s argument that he is immune from a private lawsuit concerning defamatory statements he made about a sexual assault he committed in the 1990s. As a result of that decision, Trump was soon going to be required to produce documents, provide a DNA sample, and sit for a deposition. Realizing that there was no valid basis to appeal that decision in the New York courts, on the very day that he would have been required to appeal, Trump instead enlisted the U.S. Department of Justice to replace his private lawyers and argue that when he lied about sexually assaulting our client, explaining that she ‘wasn’t his type,’ he was acting in his official capacity as president of the United States. Even in today’s world, that argument is shocking. It offends me as a lawyer, and offends me even more as a citizen. Trump’s effort to wield the power of the U.S. government to evade responsibility for his private misconduct is without precedent, and shows even more starkly how far he is willing to go to prevent the truth from coming out.”

    Carroll said that Trump raped her in the ’90s, long before he became President. You can read Trump’s responses here: (starting on p. 15). Ask yourself, was he acting in his official capacity when he made those statements? What a ludicrous suggestion. I hope the judge quickly rules against the DOJ’s effort to insert itself into this lawsuit on Trump’s behalf.

    Elie Honig: “So now Barr has decided (1) that Trump somehow was acting *in his official capacity as president* when he called E. Jean Carroll a liar for accusing him of sexual assault, and (2) taxpayers should foot the bill for Trump’s defense. Another utter debasement of DOJ by Barr.” “Also, you cannot sue the government for defamation, so the case gets dismissed.”

    1. This is an interesting problem in immunity. Robert Barnes is representing some unnamed Covington students and in their suit they named Sen Warren and Rep Pressley. Warren and Pressley pulled it into Federal court saying their tweets were official business. So far, both a district and circuit court have agreed.

      Trump’s case falls under the same principle. What is good for Warren and Pressley is good for Trump.

      1. I just tried looking up your claim, as you didn’t link to anything with details. Looks like you’re confusing Rep. Pressley (who wasn’t a party to the case) with Rep. Haaland.

        I found U.S. District Court Judge Bertelsman’s ruling.

        Among other things, he notes “it is abundantly clear that Warren’s statement posted via her official Twitter account on a matter of national interest — an incident on the National Mall with perceived political ramifications — was meant to communicate her position on the event as an elected representative. … the crux of the issue for the applicability of the FTCA is whether the party was acting within the scope of her office or employment. For purposes of the Westfall Act, a ‘determination of whether an employee was acting within the scope of employment is a question of law, not fact, made in accordance with the law of the state where the conduct occurred.’ … The Court concludes that the challenged statements by defendants Warren and Haaland — whether one agrees with them or finds them objectionable — are communications intended to convey the politicians’ views on matters of public interest to their constituents.”

        The Covington students sued in Kentucky. Carroll sued in New York, and Kentucky’s laws about this don’t apply. Also, Trump didn’t comment from his government Twitter account. And keep in mind that the event involving the Covington students occurred in 2019, when both Warren and Haaland were in office. Neither was commenting on an event that personally involved them. In contrast, the alleged rape of Carroll by Trump occurred in the 90’s, long before Trump became President, and he is personally involved.

        If you want to cite the relevant Circuit Court ruling, please do (I’m not going to spend more time looking up info about your claim to see whether your argument is correct). But based on Bertelsman’s ruling and the differences between the two cases, I simply don’t buy your argument that they’re analogous. We’ll find out whether the federal court agrees with you that “Trump’s case falls under the same principle.”

    2. Commit, this an outrage which hopefully Trump and Barr pay for by getting kicked out of office. Do we need more proof of Barr’s personalizing the DOJ for Trump’s benefit or Trump’s sleaziness in needing the DOJ on a rape accusation?

  7. Objection your honor: Council is assuming facts not in evidence (I know that one and I’m not even a lawyer…I saw it once on Boston Legal).

    Please quote, in the tweet upon which you based this post, the section where Trump calls for the McConnell parody to be taken down.

    Take your time, I’ll wait.

    Can’t do it can you? Because he didn’t.

    Trump asked why is this parody still up, when the ones that Conservatives post are taken down?

    The point is not more censorship…the straw man that you valiantly and courageously slay in your response. The point is fairness.

    This fairness could even more easily be achieved by less censorship than by more..i.e. don’t take down liberal parodies, but don’t take down conservative ones either. And, if you refuse to be fair, don’t expect the laws to shield you from the consequences of your editorial decisions. Seems like pretty basic stuff to me, and not at all controversial.

    Is fair and equal treatment too much to ask for? I mean, that’s one of the basic foundations of a free society isn’t it?

    1. Everyone knows that conservatives are better at memes and would win the meme war. Hence the unfairness.

  8. This is what happens when a political system that assumes a degree of norms and mores is attacked by a straight liar like Trump. One side tries to censor, followed by reaction from the other side. The issue, in this case, boils down to your aforementioned observation that the parody captain himself is upset about and demanding a parody from an opposing viewpoint be taken down. it’s a straight hypocrisy issue more than a censorship one, since there basically is no way to squash language digital in nature without shutting down internet access entirely.

    1. There’s a difference between salesman lies (best car, biggest crowd, etc.) and politician lies about promising to fix a problem but never fixing it to keep a permanent voting constituency.

  9. Nothing Should ever be taken down. NO CENSORSHIP. Manipulative information if published on any of the internet platforms should be corrected only with more information.
    I suggest that twitter, Facebook, google, you-tube and all platforms should improve the tool to instead achieve corrective information with facts. Both manipulative/destructive and corrective information should be left open. Political speech must remain free all the way.

  10. JT need to reread President Trump’s tweet. Here it is: 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 bias

  11. Twitter is not the steps of the courthouse. It’s a privately owned business. JT can pound sand.

    1. Twitter is a publicly held company. Did all the stock holder decide on this policy?

      1. Just, “privately” as opposed to a public, government owned entity. They have no civil obligation to provide a platform for anything they don’t wish to and how they decide that is none of our business either, unless you’re a stock owner.

  12. Re: “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.”

    Turley is dishonestly omitting the context of those quotes and cutting them off to misrepresent her argument.

    The comments were made in Nov. 2019 at a U.S. screening of a documentary, The Great Hack, about “Cambridge Analytica us[ing] illegally harvested Facebook profiles to target voters in the US election.” (quoting The Guardian) I haven’t been able to find a transcript of her complete remarks but here are some excerpts:

    The Guardian:
    “In 2016, she said fake news on Facebook that Pope Francis had endorsed her opponent, Donald Trump, ‘really did have an impact’ and predicted ‘it’s only going to be more powerful going forward because it is more well tested. They know what they were successful at.’ She added: ‘And we are getting warning signals all the time about what is happening right now and how it is likely to affect our next election.’ … ‘When Facebook is the principal news source for more than half of the American people, and the only source of news that most of them pay any attention to, and if it announces that it has no responsibility for the airing of false ads … how are you supposed to get accurate information about anything, let alone candidates running for office?’ …
    “Asked if she thought there was any connection between the closed-door meeting Zuckerberg had with Donald Trump at the White House and the subsequent decision by Facebook to change its policy around factchecking ‘false, deceptive or deliberately misleading content’ by politicians, she said she couldn’t ‘draw any conclusions about closed-door meetings, not only with Trump but with Tucker Carlson [of Fox News] and with [rightwing website] Breitbart and with many others that have been going on at Facebook quarters’. But she went on to say: ‘If I were of a conspiratorial mindset, I might suggest that there seems to be some connection.’ Clinton said she believed we were seeing ‘a war on truth’ in which the ‘manipulation of information’ served to further the interests of a set of ‘incredibly wealthy people who believe they can do whatever they want to do’. … She had been ‘somewhat taken aback’ by the Brexit result, she said, but ‘I didn’t, at that time, see the direct connection. I didn’t know about all the involvement of the same players in Brexit, the same players in our election.’”

    “’Mark Zuckerberg should pay a price for what he is doing to our democracy,’ said Clinton. ‘Part of our problem, those of us who are appalled by this war on truth and this fake news which is truly surrounding us these days, is we’re not very good at combating it. It’s hard because you’re up against algorithms, plus all these other powerful forces, it’s really hard.’ … ‘It’s not just about one election, it’s about so many of the choices that we’re facing in society right now,” Clinton added. “The use of our data to manipulate us, to make money off of us, is really one of the cardinal challenges we face…this is our information, but people seem to forget that they should demand to own it.’ …
    “’It was an open society that enabled technology to be birthed and now be so dominant in our lives,’ said Clinton. ‘It’s like a bad fairy tale. They are going to kill that golden goose. They are going to create a political system that is going to either come down too hard on them and squeeze them in ways that are not productive or continue to have a laissez faire attitude toward them where they continue to undermine our privacy and our freedom and our democracy. It could not be a more imperative challenge for us.’”

    That Facebook allows microtargeting of ads and false information IS a serious concern — regardless of where people are in the political spectrum. I don’t want people on the left microtargeted with false info any more than I want it on the right.

    Justice Brandeis said “If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the process of education, the remedy to be applied is more speech, not enforced silence.” But the problem with micro targeting is that it makes it very hard “to expose through discussion the falsehood and fallacies, to avert the evil by the process of education,” because Facebook does not allow anyone to say “I want to target the people who saw this false info and expose the falsehoods.”

    It’s sad that Turley doesn’t want to have an honest discussion of this serious problem.

    1. The problem is the indiscriminate habits of too many citizens regarding news sources and this is new to our country and the world. It’s a good thing that there are so many sources, or at least discussions of news available, but we are not yet sophisticated enough to check the BS that confirms our prejudices with sources that have earned trust and who’s business model isn’t selling opinions but selling real news. Hopefully we gain that sophistication over time since as a democracy it is our responsibility to select our representatives and leaders.

      There are literally millions of voters who do get their “news” from Twitter and FB and You Tube and are prime suckers for that BS. Oky here still quotes Alex Jones all the time, the guy who promoted the sick idea that the Sandy Hook massacre was a staged event by gun control advocates and his followers chased a parent of one of the slain kids into hiding as a supposed ring leader. In court Jones claimed a drug caused him temporary psychosis and that’s why he said what he did. He is still on the air and Oky still links him. Paul said he gets his news from You Tube (where is Paul? Hope he’s OK.). The level of ignorance by some here on current events brings into question where they get their news.

    2. Re: Facebook:
      “Facebook software engineer Ashok Chandwaney posted this [resignation] letter on the company’s internal message board.”

      It’s worth reading. He starts off “I’m quitting because I can no longer stomach contributing to an organization that is profiting off hate in the US and globally.”

  13. “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!”

    Where did the President tell them to take it down? Sounds more like he is stating his views on the debate about the repeal of Section 230. What is wrong with that?

  14. I agree with you that the McConnell parody should not be taken down. But is Trump really insistent that it be taken down, or rather is he highlighting the reality, which you have, to your credit, pointed out, that there are more and more instances of academia, the ACLU, the news media and big tech silencing speech that opposes their own. I’m hard pressed to believe Trump is really upset about the McConnell parody. He’s upset and highlighting the reality that free speech is less and less free, especially if your point of view or convictions run contrary to those of academia, big tech, etc

  15. If Twitter were not punishing conservatives on a regular (hourly) basis right now, then I would say leave it up. However, Styx was punished for defending Rittenhouse,

  16. Twitter should not take anything down. Their remit is as a platform to allow all opinions and expressions within the law.
    The problem is that now they have violated their original mission statement and become an editor. In their new role, they should at least be consistent in application of their standards.

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