The Case For Internet Originalism

Twitter LogoBelow is my column in The Hill on Twitter’s adoption of a “living Internet” approach to censorship policies. Notably, at the recent hearing before the Senate, Democratic Senators demanded more censorship despite the Big Tech CEOs admitting that the blocking of the Hunter Biden story was a mistake. Twitter and Facebook responded within days with new attacks on free speech in barring conservative viewpoints from a Republican women’s group and one of the highest Trump Administration officials.

Here is the column:

Twitter finally lifted its suspension of the New York Post over its reporting on the laptop of Hunter Biden. The decision came two weeks after both Twitter and Facebook barred access to the story about his emails that appeared to reveal influence peddling and contradicted past statements of former Vice President Joe Biden. Twitter now admits there was no evidence that the emails were fabricated or were the product of Russian disinformation, a conclusion confirmed by both the Federal Bureau of Investigation and the director of national intelligence.

Rather than apologize for its error, however, the company cited a curiously familiar argument to excuse its decision: Its policies are “living documents” subject to continual change. That sounds like an internet version of the “living Constitution” theory used by jurists such as the late Justice Ruth Bader Ginsburg to continually update the meaning of the Constitution. Twitter’s claim should turn every citizen into a strict “internet originalist.” Before addressing the “Living Twitter” theory, a few established facts on the story should be noted.

The Bidens have not denied that these were, in fact, Hunter Biden’s laptop and his emails. Second, various senders and recipients of the emails have confirmed that they are real emails. Third, not only was the laptop subpoenaed last year by the FBI in an investigation into money-laundering, but the FBI has confirmed that the investigation involving the emails — including Hunter Biden’s involvement — remains ongoing. Finally, a former business associate has asserted that Joe Biden’s past denials of knowledge or involvement in his family’s business dealings are “lies” and has shared his allegations with the FBI, under criminal penalty for making any false statements.

There is no evidence that the laptop or emails are false. Indeed, the only obvious “disinformation” about this story has come from Joe Biden and his allies. House Intelligence Committee Chairman Adam Schiff, for example, stated that the entire story was Russian disinformation, a claim repeated by Biden this week. In reality, Twitter and Facebook tried to bury a story by the New York Post that appears to be accurate regarding the source and the content of the emails.

After dropping its suggestion of Russian disinformation, Twitter claimed the underlying material appeared to be hacked material — a claim ridiculous on its face, since the Post’s article was based on the contents of an abandoned laptop. Now the social media company is adopting a claim that its policies should be read like a living Constitution: “Our policies are living documents. We’re willing to update and adjust them when we encounter new scenarios or receive important feedback from the public.”

It is precisely the type of argument that would drive the late Justice Antonin Scalia to distraction. Scalia rejected this approach to constitutional interpretation as little more than opportunism to change the meaning of rights without having to ask the consent of citizens through amendments: “You would have to be an idiot to believe that; the Constitution is not a living organism; it is a legal document. It says something and doesn’t say other things … .” That is a view shared by newly sworn Justice Amy Coney Barrett, who recently testified that “I interpret the Constitution as a law. That I interpret its text as text. I understand it to have the meaning that it had at the time people ratified it. So that meaning doesn’t change over time, and it isn’t up to me to update or infuse my own policy views into it.”

I am not a constitutional originalist, but I am an internet originalist. The internet was originally the greatest single advancement in free speech since the printing press. It was an open, free platform for speech that united the world. Not surprising, it also was a threat to authoritarian countries and figures who have struggled to control and censor the sharing of information and viewpoints. Originally, Twitter was the ultimate expression of those free speech values, as individuals associated with others to share instant observations and experiences.

Yet, the original free use of the internet has come into increasing conflict with liberal politicians who demand that social media companies actively prevent people from sharing information they deem to be false or misleading. Joe Biden has demanded that these companies block postings linking mail voting to fraud; Democratic leaders like House Speaker Nancy Pelosi have threatened punitive legislation if the companies do not censor groups accused of spreading false information.

In this week’s Senate hearing on Twitter’s suppression of the Biden story, Democratic senators ignored the admissions of Big Tech CEOs that they were wrong to bar the story and, instead, insisted that the CEOs pledge to substantially increase such censorship. Senator Jacky Rosen warned the CEOS that “you are not doing enough” to prevent “disinformation, conspiracy theories and hate speech on your platforms.”

That is why a “living internet” interpretation is so dangerous. These companies are driven by profits and politics, not principle. If Democrats take control of Congress and the White House, these companies will face growing demands for increased censorship. That is when “living policies” change “to update and adjust them when we encounter new scenarios or receive important feedback.”

The alternative is “internet originalism” — no censorship. If social media companies returned to their original roles, there would be no slippery slope of political bias or opportunism; they would assume the same status as telephone companies. We do not need companies to protect us from harmful or “misleading” thoughts. The solution to bad speech is more speech, not approved speech.

If Pelosi demanded that Verizon or Sprint interrupt calls to stop people saying false or misleading things, the public would be outraged. Twitter serves the same communicative function between consenting parties; it simply allows thousands of people to participate in such digital exchanges. Those people do not sign up to exchange thoughts only to have Dorsey or some other internet overlord monitor their conversations and “protect” them from errant or harmful thoughts.

It has been a long time since a bunch of geniuses came up with a new form of communication on Twitter. Back then, the platform was neutral. Its appeal was its convenience, not its supervision. Dorsey himself said the success of Twitter is based on the principle that you “make every detail perfect and limit the number of details to the perfect.”

A free and open forum for communication was the original and perfect design. And here, once again, the Constitution could offer the clarity of that original meaning to limit the detail to the perfect. To paraphrase the First Amendment, Twitter should return to a simple static, “originalist” position: It should “make no policy abridging the freedom of speech or the press.”

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates online @JonathanTurley.

116 thoughts on “The Case For Internet Originalism”

  1. All that YouTwitFace censorship is accomplishing is building their replacements. Get kicked off any of the woke platforms there are any number of alternative social media websites. Will it end before Zuckerberg & Dorsey are running squeegees on San Francisco street corners? I simply cannot say. I can say the Gab, MeWe & Parler are a lot more fun than the dour faced Big Tech community.

  2. Off topic. New topic for the blog: Black Reparations. We need to discuss: 1). Who is entitled? What if you have some african heritage but your ancestors came over to America after the Civil War? None were slaves. 2) Who pays? All taxpayers? So blacks are paying reparations to blacks.
    3). How much money and what amount to minors and where does their share go? What about black coal miners? 4). Should the ancestors of blacks who owned black slaves be entitled? There were some of those. 5). Should taxpayers north of the Mason Dixon Line have to pay? 5). Is Kamala Harris “black”? Is “of color” the same as black? Harris’s only lineage on the black end came from Jamaica.
    Never slaves in America. She doesn’t look “black” or even “brown”. More like asian. Tan.

  3. REPUBLICANS TRYING TO STOP VOTERS ALL OVER AMERICA

    Americans like to think of our country as a place with a shared set of democratic values. We’re a nation in which whoever receives the most votes, according to some predetermined set of rules, wins. But recent developments reveal the sharedness of these values to be a fantasy. In the months leading up to the presidential election, the Republican Party has been singularly focused on preventing eligible voters from reaching the polls and on blocking lawfully cast ballots from being counted.

    One party, and one party alone, has abandoned the old-fashioned electoral strategy of appealing to a majority. Instead, it has fully, openly embraced voter suppression.

    In Texas and Ohio, Republican officials reduced the number of ballot drop boxes, particularly affecting densely populated counties more likely to vote Democratic. In South Carolina and Oklahoma, GOP leaders fought to require witness signatures or even notaries for absentee ballots, despite a pandemic that makes such requirements dangerous. In Michigan, they supported a suit to allow open carry of firearms at the polls, despite the obvious potential for intimidation. They’ve praised other forms of voter intimidation, too, including an alleged attempt to run a Joe Biden campaign bus off the road.

    At the federal level, the Trump administration crippled operations of the U.S. Postal Service. Then — in states such as Pennsylvania, Georgia and North Carolina — Trump allies have fought to disqualify ballots that might be delayed by the resulting slowdown in deliveries.

    In Texas, days before polls closed, Republicans filed lawsuits to invalidate more than 120,000 ballots already cast via drive-through voting.

    And so on. As longtime Republican election attorney Benjamin L. Ginsberg summarized in a Post op-ed: “The Trump campaign and Republican entities engaged in more than 40 voting and ballot court cases around the country this year. In exactly none — zero — are they trying to make it easier for citizens to vote.”

    Not all their efforts have succeeded, of course. But where they have, they’ve been disproportionately aided by federal judges appointed by President Trump. Nearly three out of four opinions issued in voting-related cases by Trump appointees favored policies reducing ballot access, as my Post colleagues have tallied. Judges appointed by earlier presidents (including Republicans) do not have nearly the same anti-suffrage record.

    In some of their efforts, Republicans have precisely targeted voters likely to cast ballots for Democrats. In others they appear to be pushing to throw out batches of ballots more or less randomly, without knowing the partisan composition. But this, too, is a strategy that can help Republicans: If you expect to lose when all the ballots are counted — as polls suggest — the best thing you can do is add variance. By cutting off the vote tally somewhere short of a full count, you increase your odds of winning.

    Republicans will (thinly) veil these voter suppression ploys with legalese, ginned-up fears about voter fraud, procedural integrity, that sort of thing. But every once in a while they slip and give the game away — as when Trump campaign senior adviser Jason Miller told ABC News on Sunday that Democrats are trying to “steal” the election by, no joke, counting all the votes.

    At this point, the only way to avoid a protracted legal battle, and any doubts about the perceived legitimacy of the outcome, would be for Biden to win in an in-person-and-on-Election-Day-ballot-count landslide. That way the absentee, drive-through and provisional ballots that Republicans are trying to invalidate won’t end up mattering.

    But even so, the broader issue still would.

    Because let’s be honest. America can’t continue calling itself a democracy if it throws out tens or hundreds of thousands of ballots cast in good faith, for transparently anti-democratic reasons, simply because a political party asked for it. We can’t continue to pretend our judicial branch is made up of neutral, qualified individuals calling balls and strikes — at least not when the courts have been packed with appointees vetted for their inclination to cement a partisan agenda that Republican politicians openly expect voters to reject.

    The legitimacy of our government, and respect for the rule of law, depends on voters’ belief that it has been put in place as a result of free and fair elections. That’s the social contract. And Republicans have set it aflame.

    Edited From: “Russia Can Stand Down. The GOP Is Interfering With Election Results All On Its Own”

    The Washington Post, 11/3/20

    1. It’s pretty simple: the power to set voting laws lay with state legislatures. The executive – governors, AG, etc. – are not entitled to change those laws as they see fit. COVID does not alter the checks and balances; legislatures legislate, executives execute those laws.

      If you have a problem with a voting law, take it up with the legislature rather than espouse illegal, Machiavellian measures.

    2. A one sided, partisan opinion reciting a list of minor matters as major impediments to voting coming from a political rag doesn’t meet the hurdle of scepticism. All the more so since the WAPOO is owned by the biggest internet Baron of them all.

  4. Why No One Cares About The Hunter Biden Story

    Donald Trump made his closing argument for reelection this week with a trademark panoply of vitriol, bombast and, above all, grievances against the forces he perceives as unfairly arrayed against him.

    There’s the novel coronavirus surging to record numbers of daily infections. “Everything’s COVID, COVID, COVID,” Trump groused over and over at rallies.

    Then there’s his political enemies. Not just Joe Biden. The fake polls. The fake media. The Big Tech giants pulling his posts and tweets. And the anti-Trump Republicans — “the lowest form of human life” — with their lacerating TV ads.

    The reality is that Trump has scant grounds for complaint. No one has been more politically fortunate. He once famously said, “I could stand in the middle of Fifth Avenue and shoot somebody and I wouldn’t lose voters,” and that’s one of his truest observations. The list of preposterous actions and statements by Trump in the past 46 months, any one of which would have torpedoed another politician, is nothing short of breathtaking.

    Just imagine:

    ►If Joe Biden — who, according to Trump, lacks the mental acuity to lead — reportedly suggested using nuclear bombs to stop hurricanes. Or if Biden had argued, as Trump did in all seriousness (check the video), that disinfectant be injected into the human body to kill coronavirus. Or if Biden had used a Sharpie to alter a weather map to support a misguided tweet about the path of a hurricane. Any of those actions would have turned Biden into a laughingstock.

    ►If Hillary Clinton — who Trump accused of being crooked — had been elected president and commuted the prison sentence of a close associate, as Trump did for Roger Stone. Or if, as president, Clinton had used the levers of power to punish the news media by pressuring the U.S. Postal Service to raise fees on Amazon, whose CEO owns The Washington Post, or trying to block a merger involving Time Warner, which owns CNN. Or if she had funneled more than 500 presidential visits to properties she owned. How long would it have been before Republicans filed articles of impeachment?

    At a joint news conference in Helsinki in July 2018, President Donald Trump said of Russian President Vladimir Putin and election interference, “I have great confidence in my intelligence people, but I will tell you that President Putin was extremely strong and powerful in his denial today.”

    ►If Barack Obama — who the GOP accused of being too soft on Russia — had denied that President Vladimir Putin attacked U.S. elections in 2016 (and obsequiously sided with Putin on the issue during a side-by-side news conference in Helsinki). Or showered praise on Putin, congratulating him on winning a sham reelection. Or shared classified information with two Russian officials in the Oval Office. Or refused to call out Putin for allegedly placing bounties on the heads of U.S. troops. Or pursued a major real estate deal in Moscow while he was running for president. Republican leaders would have demanded Obama resign.

    The New York Times has reported that Trump maintains a bank account in China. “Can you imagine if I had had a secret Chinese bank account when I was running for reelection?” Obama told a Philadelphia rally. “You think Fox News might have been a little concerned about that? They would have called me Beijing Barry.”

    ►If any other president, Democrat or Republican, paid hush money to a porn star; or said he “fell in love” with North Korea’s murderous dictator; or shook down a foreign leader to dig up dirt on a rival; or oversaw a policy of taking children from their parents to discourage border crossings; or used tear gas to clear peaceful demonstrators from a park in front of the White House for a photo-op; or characterized white supremacists as “very fine people.”

    Imagine if any other presidential candidate, in the midst of a deadly pandemic, held rallies that flouted social distancing and mask-wearing guidelines, turning them into likely superspreader events. Imagine if that candidate touted worthless cures, accused front-line medical professionals of profiteering, sidelined scientists and threatened to fire the nation’s leading authority on infectious diseases.

    Virtually any other candidate who did these things would have been run out of town by now. But not Trump. His faithful supporters, Republican enablers and media sycophants have stuck with him through these and other transgressions. His approval ratings, though never above 50%, have remained stubbornly in the 40s.

    How can that be? Maybe it’s because Trump developed a cult of personality, presided over a healthy economy (until COVID-19 hit), delivered on promises to nominate conservative judges, avoided new foreign entanglements and gave a voice to people fearful about a changing America. Maybe his norm-busting conduct was so incessant that Americans became inured.

    Or maybe a sufficient number of voters have finally reached their limit and are prepared to bring down the curtain on the Trump show. We’ll find out soon enough.

    Edited From: “Unfair? Donald Trump Can’t Complain: Imagine If Another Candidate Acted Like He Does”

    Today’s USA Today

    1. To say ‘no one cares about the laptop’ is foolish, a great many people care as evidenced by the time and energy you put into your comment. Whether or not the influence peddling and crime detailed in the laptop don’t bother you is one thing, whether they represent a concern for others is another.

      Please learn to separate your opinion (and those of like thinkers) from those of the rest of us.

  5. JT is silent about all of the GOP lawsuits attempting to disenfranchise voters.

    They lost their most recent effort in TX and have appealed to the 5th Circuit.

    Part of Judge Hanen’s ruling: “To disenfranchise over 120,000 voters who voted as instructed the day before the scheduled election does not serve the public interest.”

    Why is the GOP trying to undermine the public interest?

    1. Anonymous, at mid afternoon I posted a story and update about the case in Texas where Republicans sought to invalidate 127,000 voters. But that post has since disappeared. Apparently that story contradicts Turley’s persistent portrayal of Republicans as ‘victims’. Meanwhile, our troll can post anything he want no matter how irrelevant.

    2. A vote is a ballot legally cast. What you call “voters” is in most cases persons attempting to cast an illegal ballot as if legal. You know, like claiming the identity of a dead person, as has happened many times, something which Demonkrap spawn like you deny.

      1. No, Troll, a Federal Judge appointed by George W. has ruled those votes are totally valid. So shut up with your aggressive ignorance!

      2. No, Anon. @12:02AM, what I call voters are people legally eligible to vote.

        Why do you try to put a lie in my mouth?

    3. WHY THE DEMOCRAT VOTING DAY VOTER SUPPRESSION TACTICS?

      WHY ARE POLLING PLACES OPENING LATE?

      WHY ARE BROKEN MACHINES WASTING SPACE?

      we know why– Democrat tricksters thought they could steal this one with the mail in ballots, combined with foot dragging on election day!

      sneaky tricks WILL FAIL.

      GET OUT AND VOTE

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