The tweet read: “Natural immunity >> vaccine immunity

So why force or coerce those with natural immunity from prior infection into taking the vaccine?”

Twitter labeled the tweet as misleading. Twitter disabled the ability to favorite or comment on the tweet, leaving Retweeting or Quote Tweeting as the only option.

According to Twitter, they’ve purposefully limited the ways in which people can interact with the tweet in order to diminish its reach.

However, prior to Thomas Massie authoring this Tweet, Bloomberg released a Tweet effectively making the same statement, based on a study.

The only difference between the Tweet from Thomas Massie and Bloomberg, is that Massie asked the logical follow up question. 

If a prior COVID infection provides better resistance against Coronavirus than vaccines do, then what incentive does a previously infected person have to get vaccinated?

The answer to that question is that there is clearly no benefit.  There is no scientific benefit, nor is there a moral argument to be had. This demographic of previously infected is also a threat to the idea of vaccine passports, if people who clearly do not need a vaccine opt not to do it, which is their right.

Yet Twitter, being the arbiters of whatever truth to whatever narrative they fancy, has censored an actual sitting Congressman who posted absolutely nothing misleading. His post was forthright and truthful, and the question he posed was logical.

The post Twitter Censors Rep Thomas Massie Over (Not) Misleading Tweet appeared first on The Libertarian Republic.

Whatever the American people believe this close working relationship might be, the key fact is whatever information is allowed into the public square depends on Big Tech’s willingness to allow the “information” into the public square.

First, a little of the history on this matter before discussing how the Biden administration has opened itself up to significant discovery (written and oral questions under oath) in civil litigation.

On April 15, 2021, ReformtheKakistrocracy.com was one of the first to post an article on Big Tech as a State Actor Having Constitutional Obligations to those whose speech in the public square it denies. At that time, the article had a theoretical evidentiary link based on second-hand media reports. It was part of three articles on breaking up Big Tech without new laws. A second article discussed the fact Congress does not have the constitutional authority to delegate to Big Tech the power to regulate other private parties. The third article discussed how citizens can break up big tech using the techniques of the Left.

Notwithstanding Biden’s broad-ranging Executive Order to twelve agencies to ensure competition in the tech market, it is highly unlikely the Biden administration will seriously take on Big Tech, with new legislation, new regulations, or challenge it in the courts. Big Tech companies are the friends, donors, protectors, and the sycophant speech censor for the Biden administration.

Notwithstanding the rhetoric, if the Biden administration wanted to break up Big Tech, it could bring an antitrust action today. It has not. If Biden wanted to subject Big Tech to lawsuits, he could ask Congress to repeal Section 230 of the Communications Decency Act that provides Big Tech with immunity from suit. Biden would likely have Republican support but he has not asked Congress for help. Or, Biden could direct the FCC to narrow Section 230 immunity through rulemaking by limiting the section to child pornography. He has not directed it. So, more talk, talk and talk from a politician.

To take on Big Tech, other ways must be explored.

The most likely way to take on Big Tech/White House censorship will be in Former President Trump’s class-action lawsuit against Big Tech. Trump claims Big Tech’s close cooperation with the government makes it a state actor. The Biden administration could also join the lawsuit if it truly believes what it claims. It has not.

Trump’s lawsuit has relied on much of the same public information as my April article, which is not sufficient evidence for a court of law.

All that changed with Jen Psaki’s admission, at a press conference on July 15, 2021, that the Biden administration is in regular conversation with Big Tech on censoring “misinformation.” Since the press conference, social media has exploded with commentary on the issue. More commentary is not needed. The White House secretary’s actual words are what people need to read to appreciate how she opens up many lines of discovery in Trump’s civil lawsuit.

A complete transcript of Psaki’s comments on “misinformation” opens the White House to civil discovery procedures.

[The content in brackets in the brackets after Psaki’s statements identifies the information that could be obtained through civil discovery.]

Alex: (16:19)
“Thanks, Jen. Can you talk a little bit more about this request for tech companies to be more aggressive in policing misinformation. Has the administration been in touch with any of these companies and are there any actions that the federal government can take to ensure their cooperation? Because we’ve seen from the start, there’s not a lot of action on some of these platforms.”

Jen Psaki: (16:38)
“Sure. Well, first we are in regular touch with these social media platforms and those engagements typically happen through members of our senior staff, but also members of our COVID-19 team. Given as Dr. Murthy conveyed, this is a big issue of misinformation, specifically on the pandemic.”

[Possible Civil Discovery: Identification of all participants in the conversation, the substance of each conversation, documents identifying specific disinformation and the basis for determining disinformation.]

Jen Psaki: (16:57)
“In terms of actions, Alex, that we have taken, or we’re working to take, I should say, from the federal government, we’ve increased disinformation research and tracking within the Surgeon General’s office. We’re flagging problematic posts for Facebook that spread disinformation. We’re working with doctors and medical professionals to connected medical experts who are popular with their audiences with accurate information and boost trusted content. So we’re helping get trusted content out there.”

[Possible Civil Discovery: Identification of all disinformation being conducted and tracked by the Surgeon General’s office, all post flagged for Facebook, the identity of all “trusted” doctors and professionals who will do the outreach.]

[Psaki discusses other issues not relevant to Covid – 19 “misinformation.]

Jen Psaki: (17:27)
“We also created the COVID Community Court to get factual information into the hands of local messengers. And we’re also investing, as you’ll have seen, in the President’s, the Vice President’s, and Dr. Fauci’s time in meeting with influencers who also have large reaches to a lot of these target audiences who can spread and share accurate information. You saw an example of that yesterday. I believe that the video will be out for tomorrow. I think that was your question, Steve, yesterday, full follow-up there.”

[Possible Civil Discovery: Identification of all local messengers and influencers who share the administration’s version of the facts. Discovery would also include the soon-to-be-released video, who made it, what information was relied on in making it, and What is the COCID-19 court, what will it do and who is on it?]

Jen Psaki: (17:56)
“There are also proposed changes that we have made to social media platforms, including Facebook. And those specifically are four key steps. One, that they measure and publicly share the impact of misinformation on their platform. Facebook should provide, publicly and transparently, data on the reach of Covid – 19 vaccine misinformation. Not just engagement, but the reach of the misinformation, and the audience that it’s reaching. That will help us ensure we’re getting accurate information to people. This should be provided not just to researchers, but to the public so that the public knows and understands what is accurate and inaccurate.”

[Possible Civil Discovery: Identification of how the government believes Facebook should measure misinformation and the reach of such misinformation? How the government believes Facebook should inform the public of what is the specific misinformation. Additionally, identification of the target audiences and the “accurate” information government wants to reach the public?]

Jen Psaki: (18:32)
“Second, that we have proposed that they create a robust enforcement strategy that bridges their properties and provides transparency about the rules. So I think this was a question asked before. There are about 12 people who are producing 65% of anti-vaccine misinformation on social media platforms. All of them remain active on Facebook, despite some even being banned on other platforms, including ones that Facebook owns.”

[Possible Civil Discovery: Identification of what the administration considers an appropriate, robust, enforcement strategy Facebook should undertake?  Also, what is the identity of the 12 people producing 65% of anti-vaccine misinformation and the specific misinformation?]

Jen Psaki: (18:58)
“Third, it’s important to take faster action against harmful posts. As you all know, information travels quite quickly on social media platforms. Sometimes it’s not accurate, and Facebook needs to move more quickly to remove harmful violative posts. Posts that will be within their policies for removal often remain up for days. That’s too long. The information spreads too quickly.”

[Possible Civil Discovery: Identification of the administration’s discussion of what does it want Facebook to do “more quickly?” Additionally, what does the White House consider a quick removal, and how does it determine what “misinformation” should be removed?]

Jen Psaki: (19:19)
“Finally, we have proposed they promote quality information sources in their feed algorithm. Facebook has repeatedly shown that they have the leverage to promote quality information. We’ve seen them effectively do this in their algorithm over low-quality information. And they’ve chosen not to use it in this case, and that’s certainly an area that would have an impact. So these are certainly the proposals. We engage with them regularly, and they certainly understand what our asks are.”

[Possible Civil Discovery: What proposal has the administration made to Facebook on promoting quality information on their algorithms? What does the administration determine quality information? Is the White House following the guidelines in the Information Quality Act to determine “quality information?” Identify each time the administration has engaged with Facebook or any other Big Tech company on this issue?

[The Information Quality Act requires Federal agencies to comply with data quality guidelines to ensure and maximize the quality, utility, objectivity, and integrity of the information disseminated by the Federal government.]

Alex: (19:45)
“One of the problems with vaccines right now is that they have become politicized. The White House has obviously made the calculation that it’s important to be more aggressive in confronting this information, but is there at all concern that that could backfire and further contribute to politicization? And is there anything that you can do to prevent that at this point?”

Jen Psaki: (20:02)
“Well, you’re absolutely right, I should say, Alex, in that we have to be very careful and we are mindful of being quite careful of not politicizing the effectiveness of vaccines. The fact that they can save lives, young people, old people, middle-of-the-road people. It’s important for us, we’ve made a calculation, to push back on misinformation. You’re right.”

[Possible Civil Discovery: Identify all the information relied upon in making the calculation to push back on misinformation? Who reviewed the data to make that determination and was all the data subject to the guidelines of the Information Quality Act?]

Jen Psaki: (20:22)
“But that’s one of the reasons, as Dr. Murthy was conveying, we have empowered, engaged, funded local voices because they are often the most trusted voices. Doctors, medical experts, clergy, people who are civic leaders in communities. That’s where we are putting most of our resources, even as we are working to combat misinformation that’s traveling online or traveling, unfortunately out of the mouths of elected officials from time to time.”

[Possible Civil Discovery: Identification of all local “trusted” voices to be participants in the administration’s outreach, as well as what resources the administration deploying and the cost of such effort?]

With the July 15, 2021 press conference, Jen Psaki, opened up the administration to answer questions under oath in a civil deposition or by written question. This discovery will likely be used by Trump’s attorneys. With even reasonably good lawyering, the public will discover what the Biden administration believes is misinformation and what is good information, who possesses which type of information, and the rigors of ensuring “good information” is tested against the Information Quality Act. It will also let the public know what information the Biden administration wants us to know is the “truth.” That by itself will be interesting in a day when 58% of people believe media has become “the enemy of the people.”

The post How the Biden Adminstration is Helping Trump’s Lawsuits Against Big Tech appeared first on The Libertarian Republic.

Section 230 grants Big Tech immunity from civil suit when regulating the Internet. Being free of liability has allowed Big Tech to grow in size and wealth while achieving regulatory control over social media and political speech it deems objectionable. Big Tech even banned a sitting President from Facebook and Twitter. In addition, Google and Apple blocked Parler’s App from their stores, and Amazon Web Services suspended Parler’s access to its cloud network, thereby shutting it down until it could find new servers.

As conservative politicians rage at Big Tech, Governor DeSantis (R-FL) proposed and had passed a law prohibiting Big Tech from de-platforming the speech of political candidates and imposed fines on violators as high as $250,000 a day. Florida also allows citizens to sue companies violating the law. However, the penalties will not impact Big Tech’s actions. A few days ago, Google, with a market capitalization over $1 trillion, settled an antitrust case with French authorities for $270 million, a fraction of a percent of its worth. These individual attempts to control the power of Big Tech will be of limited success against the five largest tech giants, having a value of $ 5.2 trillion. The state of Florida’s budget is $101.5 billion. The 2021 combined budgets for all fifty states is $2.1 trillion.

To seriously challenge Big Tech, conservatives will need to develop and implement a coordinated and aggressive strategy that includes legislators, governors, attorneys general, interest groups, legal centers, and citizens who want freedom of speech in the public square.

This strategy has worked. The Left developed, coordinated, and implemented it to impose climate change regulation on the U.S. without Congress ever passing a climate change law. The strategy’s components:

1. Using Administrative Procedure Act laws, file petitions with federal and state agencies to initiate rulemaking to change regulatory policy.
2. If the petitions are denied, a coalition of states, cities, and non-profit organizations will appeal the denial to the courts.
3. Use states as lead petitioners in court challenges to secure special standing recognized by the U.S. Supreme Court.
4. Organize states with similar policy views into regional working units, similar to Compacts, designed to regulate activities of regional concern. For example, nine states in the Northeast and Mid-Atlantic, and three west coast, formed regional compacts to address climate concerns.
5. Encourage state Attorneys General, and coalitions to sue on innovative legal theories. One example would be Big Tech’s potential liability for flagging posts as “misinformation,” which were later found to be credible, and Big Tech retracted its label. Specifically, Facebook’s recent retraction of its ban on posts concerning coronavirus leaks from a Chinese lab. Under Section 230(f)(3), when Facebook labels a third-party’s content “misinformation,” it is acting as an authoritative speaker on its platform by producing, in whole or in part, new content with the third party. Since Section 230 protects platforms, not speakers, Facebook’s speech no longer has immunity from civil liability, and facts supporting its new content may be subject to civil discovery.
6. Environmental groups brought hundreds of NEPA cases to deny permits to oil and gas operations. NEPA lawsuits could also be brought to block permits for Big Tech’s massive energy-consuming data centers.
7. Environmental organizations and state attorneys general brought over One Thousand lawsuits against the government and private parties in the U.S. to impose climate regulation. So perhaps a class action suit against Big Tech is appropriate by those whose comments on the lab leak were flagged as “misinformation.”

If conservatives are serious about reforming Section 230, they have all the tools for success: 27 Republican governors, 25 Republican Attorneys General, and certainly numerous groups that believe in free speech. Recently, 25 red states independently opted out of accepting extra federal unemployment benefits. These actions demonstrate a significant base of potential support.

The key to success rests in the conservative’s willingness to plan, organize and implement like the Left. So far, conservatives have found greater ego satisfaction on conservative cable channels than the difficult task of organizing, implementing, and accomplishing something—like preserving the free speech they constantly tell Americans they want to protect.

Image: Josh Hawley on YouTube

The post Conservatives Should Take Lessons From the Left on Protecting Free Speech appeared first on The Libertarian Republic.

When Big Tech uses the powers authorized by section 230 of the Communications Decency Act (CDA) to restrict access to materials on the Internet it considers “objectionable,” it is acting for the state (“State Action”). As a state actor, Big Tech must provide the same constitutional protections as government provides.

In a prior article, I argued section 230 was an unconstitutional delegation of authority by Congress to private parties. The seminal case supporting this position is  Carter v. Carter Coal, a 1936 U.S. Supreme Court case invalidating the delegation of government power to private coal producers to regulate other coal producers. The court characterized such action as “Legislative delegation in its most obnoxious form.” The holding has not been challenged for 85 years.

Unfortunately, Congress continues to ignore its unlawful delegation while Big Tech continues to regulate speech in the social marketplace as if the delegation is valid. Due to the significant impact on free speech, this controversy should be quickly resolved.  There are three possible outcomes: Congress re-writes the statute; the court declares section 230 constitutional or unconstitutional, or courts provide due process rights for objectionable speakers deprived of free speech by state actors. The first two options are years in the future. Affording due process can be immediate.

When are actions by private parties State Action?

There are two situations in which the actions of private parties are deemed State Action: (1) there is a close relationship between the actions of the private party and what government seeks to have accomplished; or (2) the private party performs a traditional government function.

 Constitutional protections are mandated when private parties are state actors

While State Action is a factual matter, the Supreme Court, in Skinner v. Railway Labor Executives’ Assn. (Labor Assn.) ruled on a situation similar to the actions of Big Tech. In Skinner, the government authorized but did not compel, private railroads to drug test employees as part of accident investigations. Railroads voluntarily conducted the tests. The Labor Association sought to enjoin the railroads from conducting drug tests, claiming unlawful searches in violation of the Fourth Amendment. The Supreme Court held that while the railroad’s program was a private initiative, the tests, encouraged by the government, cannot be viewed as private action outside of the reach of constitutional protections, i.e., state action.

As with Skinner, section 230 of CDA, did not compel Big Tech to restrict materials it deemed objectionable. Moreover, like Skinner, government’s grant of section 230 immunity and power to restrict materials, produced a close relationship between Big Tech and government that encouraged Big Tech to actively implement government’s goals, i.e., state action.

Another case, Marsh v. Alabama involved a company-owned town that operated like any other town, except that it prohibited the distribution of certain religious literature. The U.S. Supreme Court held when private parties exercise powers traditionally reserved for the state, they perform a public function; thus, bound to respect constitutional rights, the same as government.

The private parties owning the town of Marsh, like the private parties operating the Internet, both regulated speech. When Big Tech controls speech in the public square, it exercises state regulatory power. And, like Marsh, it must respect the constitutional rights of those in the square.

Courts have the power to immediately protect objectionable free speech

The actions of Big Tech are State Actions reviewable by courts that can balance the property interests of private parties against the free speech and due process rights of objectionable speakers.

Determining the process due a litigant depends on the situation. If only property rights are involved and other administrative processes are available to protect those rights, a hearing is generally not required before the deprivation occurs. However, when fundamental liberties, e.g., speech, are involved, courts must provide hearings before the deprivation of rights occurs.

While litigants cannot seek monetary damages due to Big Tech’s immunity from civil liability, they can seek a hearing for injunctive relief and discovery of why their free speech is being denied, before losing their right to speak in the public square.

This article was originally published in The Hill.

The Libertarian Republic publishes a wide variety of viewpoints. The opinions of the authors do not necessarily reflect those of the owner or editor.

The post Opinion: Big Tech is a State Actor and Has Constitutional Obligations appeared first on The Libertarian Republic.

The two major political parties have both sought one-party rule for decades but with little success. The American people have always had enough smarts to stop them in the next election, usually due to political leaders ignoring common sense.

But this time, it may be different due to the horrific seizing of the Capitol on January 6, 2021. The events of that day will be justification for using every power of government, and its friends in the media, to build a permanent one-party, Democrat-ruled state. The building blocks are in place and set forth below.

Big tech, big censorship

Big tech detests Trump for his calls to repeal Section 230 of the Communications Decency Act which gives it immunity from civil suit for any actions taken to “police” the Internet, including censorship. The January 6, 2021 riot gave big tech the excuse needed to censor the speech of then-president Trump and his conservative allies.

Days after the invasion of the Capitol, big tech, a group that poured hundreds of millions of dollars into helping Democrats win the 2020 election, launched a surprise attack on web content they deemed objectionable. Twitter permanently banned President Trump’s account, wiping out his contact with 88 million followers and banned thousands of conservative social media accounts. Google and Apple blocked Parler’s App from their stores, and Amazon Web Services denied Parler access to its cloud network. Parler was shut down. A swath of conservatives lost the ability to speak on the internet, the nation’s new public square.

Big business, big labor implements a successful conspiracy to change voter perception of information

Big business, i.e., the U.S. Chamber of Commerce (a traditional ally of Republicans) joined with the AFL-CIO and big tech to take down Trump and conservatives. A Time Magazine article, The Secret History of the Shadow Campaign That Saved the 2020 Election, proudly claims victory in its account of the inner workings of a little-noticed cabal effort to “protect the election” from what they viewed as “disinformation.” The conspiracy touched every aspect of the election, from voting systems to lawsuits, to ensuring massive vote by mail, to pressuring social media companies to remove what they believe to be “disinformation.” The cabal’s goal was to secretly “…influence voter perceptions, change voting rules and laws, steer media coverage, and control the flow of information” [received by voters]. The cabal claims the conspiracy was “… not rigging the election; [it was] they were fortifying it.”

The cabal achieved its purpose—it changed the voting system by changing laws and regulations governing the election, generated negative media coverage of Republicans, and controlled the flow of information voters received about the election. To this day, social media continues its censorship of some conservative speech, including a lifetime ban on Trump’s Twitter account. In a recent opinion piece by James Freeman of the Wall Street Journal, he notes “…that the most consequential use of this censorship tool in 2020 was an abusive blocking of true information” such as “… the New York Post’s reporting on the Biden family influence peddling” which was suppressed by Twitter and other media outlets.

Democrats seek to punish Republican members of Congress

The Democrat Speaker of the House claims her members are at risk of harm and “the enemy is within the halls of Congress.” Democrats in Congress seek to punish members of the Republican party who exercised their right to object to electors under 3 U.S.C. sec.15, including expulsion. Democrats advocate for creating an enemies list containing the names of Trump supporters and denying them jobs in the private sector. A counsel for PBS even called for sending the children of Trump’s supporters to re-education camps. Katie Couric told Bill Maher that members of President Trump’s “cult” need to be “deprogrammed.” The Democrats’ obsession with purging former president Trump, those who worked for him, and even some who voted for him will likely continue until Trump and his allies are canceled.

D.C. becomes a military state

In January, 26,000 national guard troops were brought to D.C. to protect the Capitol during the inauguration—about five times more than in Afghanistan and Iraq combined. Congressman Van Drew commented, “It looked like [Biden was] getting sworn in in Venezuela…” The military will leave 5,000-7,000 troops in D.C. and massive fencing around the Capitol for several more months, at least. Moreover, the Department of Homeland Security (“D.H.S.”) issued a terrorism advisory that there is a “heightened threat environment across the United States that is likely to persist over the coming weeks.” D.H.S. admitted it has no information of any creditable plot.

Will D.C. be a perpetually occupied military zone to protect a government that fears its citizens? Is this the beginning of military control of the nation? Is this the new image of America to the world?

Investigative reporter, Glen Greenwald, cautions that fighting “domestic terrorists” presents dangers “…when governments, exploiting media-generated fear and dangers, arm themselves with the power to control information, debate, opinion, activism, and protests.”

Packing the Supreme Court to form a radical-left majority

Additionally, the president announced a commission to study reforming the U.S. Supreme Court, including the need for additional justices. The commission will be run out of the office of the White House counsel. Is this the first step to packing the court to dilute the active conservative 5–4 majority? Is this the end of even the appearance of a neutral Supreme Court? Can a political Supreme Court uphold the rule of law?

D.C. Statehood

The D.C. mayor is demanding statehood as promised by the Democrats. Our Constitution allows Congress to admit new states into the Union by majority vote. The Democrat-controlled Congress supports it and has the votes to pass it. If Republicans launch a filibuster, Democrats can repeal it merely by changing the Senate rules as done by Senate Majority Leaders Reid and McConnell for judicial and cabinet-level appointments. Such a move would give Democrats two additional Senate seats and likely control of the Senate for decades. It would also position Democrats to admit additional Democrat states such as Puerto Rico.

Eliminate the Electoral College

Then there is the non-threatening sounding proposal, “The National Popular Vote Interstate Compact” (NPV). Under the NPV, by agreement with other states in the compact, a state awards all its electoral votes to the presidential candidate who wins the popular national vote, notwithstanding who wins the popular vote in the respective states. The compact goes into effect when the states controlling the majority of electoral votes (270) join the compact. Fifteen states, representing 196 electoral votes, have already adopted the compact. The measure is still active in states having 97 electoral votes and controlled by Democrats.

Democrats have two years to install a one-party rule, or else?

Democrats have two years with control of the House, Senate, and presidency to transform the U.S. into a nation of one-party rule, a type of rule common in many authoritarian countries.

If the Democrats fail to impose one-party power after forceful attempts to deny freedom of speech to many conservatives,  punishing duly elected members of Congress for exercising their statutory rights, ruling by executive fiat, packing the Supreme Court, adding new states to ensure Democrats control the Senate, eliminating the electoral college without a constitutional amendment and opening the southern border to anyone who might be a Democrat supporter, Democrats will be soundly rebuked by the voters. The Democrat Party will be the ninth political party to sink into oblivion.

Our Constitution is a broad and vague document that can sanction freedom or permit one-party rule enforced by oppressive legislation, massive regulation, and a political judiciary. Reform the Kakistocracy: Rule by the Least Able or Least Principled Citizens concludes by noting the U.S. has reached a fork in the road. Depending on the path it takes, “…posterity will reap the fruits of success or suffer the slide from being exceptional to experiencing the perpetual frustrations of mediocrity, growing poverty, and a dimmer future. The future is ours to create.”

The post What Democrat One-Party Rule in the United States Looks Like (Part II) appeared first on The Libertarian Republic.

Two questions must be answered:

1. Can private parties controlling the public square, deprive citizens of their right to free speech?
2. Can Congress empower private parties to regulate competitors?

Congress spectacularly muddled section 230 and the U.S. Supreme Court has not addressed it. Fortunately, decades-old Supreme Court cases involving the tech giants of yesteryear, i.e., coal companies, railroads, and company towns, provide guidance on the limits of big tech’s power to regulate the public square.

What does section 230 do?

Section 230 has two primary provisions. The first exempts internet providers from civil liability for publishing any information from another content provider that is objectionable. The second provision exempts Big Tech from liability when it takes voluntary, good faith actions, to restrict objectionable materials or provides the technical means to restrict them.

Private parties cannot deprive unpopular citizens of constitutional rights when governing the public square

By granting Big Tech immunity from civil liability when restricting material from the Internet it deemed objectionable, Congress encouraged and indirectly authorized private parties to regulate speech.  Congress has no constitutional power to authorize private parties to deprive, even unpopular citizens, of their constitutional rights. Moreover, when private parties control the new public square, they function as a government and must provide constitutional rights for all.

These principles are set out in Marsh v. Alabama, (1946). Marsh, a privately owned town, made it illegal for persons to distribute religious literature on its sidewalks. Since the town functioned like any other community having speech and commerce, citizens in the town had the same rights as if in a municipal town. When private parties wield great power over the public’s use of town services, the powers of the private parties are circumscribed by the statutory and constitutional rights of those using the town. Private property rights are not sufficient to justify restricting fundamental liberties.

Since the First Amendment severely limits governments’ power to regulate political speech, the government cannot grant private parties, functioning as a government, more power than it has. If Congress desires to impose speech limitations on the Internet, it must do so directly, by government regulation that protects the constitutional rights of citizens.

Congress cannot grant private parties the right to regulate competitors

By refusing to sell Parler’s app, and by denying Parler’s access to cloud storage, Google, Apple, and AWS, private parties, relying on a congressional grant of civil immunity, took, in essence, regulatory actions to put another private company out of business. Congress has no constitutional authority to authorize, or foster conduct by private parties, that allows them to regulate other businesses. This has been the law since the U.S. Supreme Court’s decided Carter v. Carter Coal, (1936).  

In Carter, Congress delegated to coal producers and miners the power to impose standards on other producers and miners.  Carter held a private entity “…may not be entrusted with the power to regulate the business of another, and especially a competitor. Any statute which attempts to confer such power undertakes an intolerable and unconstitutional interference with personal liberty and private property. The delegation is so clearly arbitrary, and … a denial of…due process…”

By granting immunity from liability to big tech for restricting materials Big Tech deems objectionable, Congress is sanctioning the regulation of private parties by other private parties, an action it has no constitutional authority to authorize. Regulating competition is the responsibility of the government.

The principles in Carter were upheld by the DC Circuit as recently as 2013 in American Assn of Railroads v.US DOT (reversed on other grounds).

Section 230 immunity from suit encourages Big Tech to assume the regulatory functions of government by regulating the rights of other businesses to speak and compete in the public square. The Constitution does not give Congress or private parties this power.

The post Opinion: Section 230 is an Unconstitutional Delegation of Power to Big Tech appeared first on The Libertarian Republic.

First and foremost, the COVID-19 pandemic posed enormous challenges to American institutions, and continues to do so. Frankly, we were not prepared. We need to diagnose what went wrong, so that we are never caught unaware like this again. Fortunately, the diagnosis is straightforward. COVID-19 was going to be bad, no matter what. But the failures of big government made it much, much worse.

In particular, the Centers for Disease Control, Food and Drug Administration, and public teachers’ unions are the great American villains of 2020. Meanwhile, the heroes of this year are almost entirely in the private sector. From Zoom to vaccine development, Big Pharma and Big Tech—yes, you read that right—made this horrible year bearable. Even amid a crisis that led so many to cry out for vigorous government action, we saw that private markets still work best.

For progressives and so-called “national” conservatives who support big government, 2020 represented the ultimate test for their philosophies. Although they disagree on cultural issues, they see eye-to-eye on the role of government. Both want a big, energetic state promoting what (they believe to be) the good of the nation. Well, here was their chance for the government to shine.

The result was shameful failure. The COVID-19 crisis put left-wing and right-wing statism on trial—and both were found guilty of ill-intent and gross incompetence.

After all, the CDC is the reason America lagged behind other nations for so long in terms of COVID-19 testing. We had the virus genome fully mapped in January, which enabled the rapid production of private testing kits. But the CDC forced these operations to shut down, coming up with its own test—which was flawed, and even contaminated! Testing and tracing could have stemmed the worst of the COVID-19 tide.

On this issue alone, CDC ineptitude is likely responsible for tens of thousands of deaths. Its red tape and incompetence made containing the COVID-19 pandemic, like a few other countries were able to, impossible.

How about the FDA?

It is no secret that the vaccine was delayed because it needed FDA approval. Indeed, several working vaccines could have come much earlier, were it not for our bungling bureaucrat gatekeepers. (Dear FDA: Can you please speed things up a little, so people do not, you know, die? It would make us ever so happy if you did. Thanks.)

As for schools, the data show that young people and children are at very low-risk from COVID-19, and that schools are not “super spreaders.” Despite this, largely due to pressure from public teachers’ unions, many schools remained closed in the fall. In fact, the US was pretty much the only country to pursue the alarmist policy of keeping schools closed.

The toll on school-aged children is immense, from psychological trauma to impeded learning. Low-income families were hit especially hard. They often lacked the means to participate in distance learning, and having their kids at home made it harder for parents to earn much-needed income.

Fortunately, there seems to be some well-deserved backlash against the crony public education establishment. Hopefully a mass exodus to more effective and accountable learning platforms will follow, whether that is charter schools, private schools, or homeschooling. Even more hopefully, parents will realize public education racketeers are not their friends. They should demand loud and clear: Fund students, not systems!

In stark contrast to these unacceptable failures by government agencies and employees, the private sector delivered.

Big Pharma and Big Tech are the winners here. Pfizer, Moderna, AstraZeneca, and many other companies did amazing work getting the vaccines developed as quickly as they did. Public health “experts” repeatedly claimed a vaccine would not be available for 18 months, at the earliest. (Shows what they know!)

As for Big Tech, companies like Facebook and Twitter helped us stay connected while we were forced physically to remain apart. Amazon responded well to a huge surge in demand, stemming from the curtailment of in-person shopping. Faced with an immense logistical challenge, the online retailer surpassed expectations.

These sectors and their star performers are not perfect, of course.

In the past, Big Pharma lobbied for many of the regulatory roadblocks that made fighting COVID-19 so hard. Big Tech got egg on its face for covering up the Hunter Biden laptop story. Nevertheless, the takeaway is clear: 2020 would have been much, much more miserable without these supposedly evil big businesses in our corner. We owe them far more than we give them.

2021 is the perfect time to revisit our basic beliefs about the role of government and business in society. Both were unexpectedly challenged by the greatest public health crisis in recent memory.

Government failed. Business triumphed. Statism should be discredited, hopefully for an entire generation. Any coherent political philosophy for the 21st century must start from this basic truth.

This article was originally published on FEE.org. Read the original article.

The post Why the Real Villain of 2020 Was Big Government appeared first on The Libertarian Republic.

We can add Section 230 to that list, an obscure provision of the Communications and Decency Act (1996) that was previously unknown to most.

Section 230 is a frequent target of President Trump’s ire, and as such it can now frequently be found trending on Twitter, being debated in Congress, and featured in primetime media coverage. All in all, dozens of bills to repeal or modify Section 230 have been introduced in 2020.

TechDirt journalist Mike Masnick writes, “If you were in a coma for the past 12 months, just came out of it, and had to figure out what had happened in the last year or so solely based on new bills introduced in Congress, you would likely come to the conclusion that Section 230 was the world’s greatest priority and the biggest, most pressing issue in the entire freaking universe.”

But while it is a recurring topic of discussion, it seems the incessant chatter has only left Americans more confused. This explainer is here to break down the code and the debate swirling around it.

What Is Section 230?

So what’s the truth about Section 230? What does it actually say and what are its implications? Fortunately, the original author of the bill, Senator Ron Wyden, is still around and on record when it comes to the current dispute.

“Republican Congressman Chris Cox and I wrote Section 230 in 1996 to give up-and-coming tech companies a sword and a shield, and to foster free speech and innovation online. Essentially, 230 says that users, not the website that hosts their content, are the ones responsible for what they post, whether on Facebook or in the comments section of a news article. That’s what I call the shield.”

“But it also gave companies a sword so that they can take down offensive content, lies and slime — the stuff that may be protected by the First Amendment but that most people do not want to experience online. And so they are free to take down white supremacist content or flag tweets that glorify violence (as Twitter did with President Trump’s recent tweet) without fear of being sued for bias or even of having their site shut down. Section 230 gives the executive branch no leeway to do either.”

It can seem complicated, but it’s actually fairly straightforward. Section 230 simply says that only internet users are responsible for what they write, not the private companies whose websites host the commenters. Secondly, it affirms what the First Amendment already implies—that private companies don’t have to host speech that violates their values.

Section 230 was written early on in the internet age, long before social media companies even existed (although much of this debate has focused on those platforms). Within the bill, the authors explicitly say the law is “to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services.”

And it has been successful. The government got out of the way and the internet expanded rapidly. Private companies invested millions to build their online enterprises, encouraged by provisions like Section 230 that secured their rights against unjust legal charges that would have otherwise put those investments in severe jeopardy.

Online companies want and need internet users to interact with their content and share feedback on their platforms. That goes for publishers (like Vox.com and us here at FEE.org), platforms (like Twitter and YouTube), and everything in between. But they shouldn’t be held liable because someone writes something untrue on their pages, nor should they have to host content that they find offensive.

Ronald Reagan once said,“We must reject the idea that every time a law’s broken, society is guilty rather than the lawbreaker. It is time to restore the American precept that each individual is accountable for his actions.”

Individuals should be held accountable when they break the law or violate the rights of others. But it would be morally wrong to hold society at large, or even parts of society like private businesses, responsible for the action of an autonomous individual. In fact, this course of action would let the party actually responsible for harm off the hook while punishing a third party who did nothing wrong.

Shoshana Weissmann, the head of Digital Media and Fellow at the R Street Institute, recently wrote a punchy (and hilarious) article illustrating this concept—tying Section 230’s protections to Jeffrey Toobin’s Zoom “reveal” earlier this year. For those who’ve forgotten, Toobin accidentally exposed himself on a work Zoom call. As Weissmann points out, without Section 230, Zoom itself would have been liable for his lewd content rather than Toobin being held responsible.

Thankfully, we have Section 230 which creates a just and sensible legal apparatus for the internet and conduct on it. Without this protection, it is highly unlikely that the internet would have taken off and grown to its current state, much less produced the social media websites, online news outlets, and other user-reviewed services (like Yelp) we all now enjoy.

What Do Both Sides Want To Do About It?

Section 230 became a hot topic in the fall of 2019 when President Donald Trump drafted an executive order requiring the Federal Communications Commission to develop rules that would limit its protections. Ultimately, that order never went through, as even the mention of it was met with confusion and alarm by regulators, legal experts, and First Amendment advocates.

The storm died down until May of this year when Twitter found itself in Trump’s crosshairs after slapping one of his tweets with a violence warning. This feud reignited Trump’s fury and determination to do away with Section 230.

Since then, Trump and his allies have regularly called for the repeal of Section 230. Trump believes that social media companies are unfair to him and his agenda, and his response to that is to use the government to force the private companies to act in a way he deems appropriate. He also believes that doing away with Section 230 would block social media companies from “censoring” information on their websites.

There has, of course, been pushback against all this. Many conservatives and libertarians have pointed out that Trump and his supporters fundamentally misunderstand the legal code and its implications. Supporters of Section 230 say it upholds the right to free speech in the age of the internet, and that it protects the free market as well.

Meanwhile, others like Republican Senator Roger Wicker have called for modifications to the law that would leave the liability shield in place, but that would force companies to host content that may violate their values.

Social media companies, who have incurred the bulk of the derision in this debate, are left between a rock and a hard place. Democratic leaders want them to censor more and guard against “fake news,” while some Republicans want to take away their rights for any content moderation.

True defenders of free speech, limited government, and the free market are largely being drowned out by the tidal wave of politicians and their supporters pushing for big government responses to a societal issue they dislike.

What Would Happen If It Was Repealed?

While opponents of Section 230 think that its removal would force companies to host their content and not “censor” information the company does not like, it would, in fact, have the opposite effect. If companies were liable for content posted on their pages by third parties, they would instead have to censor vigorously.

We’ve already seen a preview of what this would look like with the passage of the Allow States and Victims to Fight Online Sex Trafficking Act (FOSTRA). Signed into law in April of 2018, FOSTRA carved out an exception to Section 230 that essentially said websites would be held responsible for content promoting or facilitating sex trafficking or prostitution.

Internet companies reacted quickly, even those whose primary purpose had nothing to do with sex work. Craigslist removed its personals section altogether. Reddit and Google also took down parts of their websites. Notably, these actions were not taken because these sections of their websites promoted prostitution, but rather because policing them against the possibility that someone else might advertise illegal services was an impossible task.

It is almost inevitable that further eroding Section 230 would have similar impacts throughout the internet. Consider, for example, a company like Twitter. If it could potentially be sued for the millions of user posts on its platform, it would have to start censoring many more of them, or even running them through a pre-approval process. This would likely slow down the flow of information on these channels as the companies would be forced to sort through and approve content. Ultimately, these actions would result in all of us having less of a public square, fewer information streams, and a less rich internet experience.

Especially concerning is the impact these actions would have on smaller companies and start-ups, many of whom cannot afford losing liability protections. Ironically, those who seek to harm Facebook or Twitter by repealing this law would actually end up entrenching their power even more by putting their competitors out of business.

Take Parler for example. It is a growing, popular competitor of Twitter’s that many conservatives are flocking to. Should Section 230 be repealed, this new company would almost certainly be put out of business tomorrow as it does not yet have the revenue to withstand litigation. Twitter, on the other hand, would have the resources to survive and adapt.

“If Section 230 were to be repealed, or even watered down, this next generation of platform will likely be thwarted by liability threats. “Big tech” firms have the resources to comply with new mandates and regulations, so erecting this barrier to entry to nascent firms will artificially lock currently dominant firms in their lead positions.”

-An open letter to Congress from a coalition of conservative and libertarian think orgs, including Americans for Prosperity, Competitive Enterprise Institute, Freedomworks, and more

What If It Was Modified?

Some bills seek to modify Section 230 instead of repealing it. There are too many to name in one article, so we’ll focus on the worst and the most prominent: Senator Josh Hawley’s “Ending Support for Internet Censorship Act.”

This legislation would remove liability protections for companies with more than 30 million US users, 300 million global users, or $500 million in annual revenue. The bill also says that these large companies can apply for immunity from the bill if they go through a process that allows the FTC to screen their protocols and attest that their algorithms and content removal policies do not discriminate on the basis of political views.

So Hawley wants to fight “censorship” with – wait for it – actual government censorship of private companies.

Real censorship almost always involves the government, because without this tool of force, it is unlikely information could be totally suppressed. While people like to call social media content moderation “censorship” it really isn’t, not in the true sense of the word. Those who have their posts removed from one platform can easily go post them elsewhere. But what Hawley wants to do, which is use the government to censor the protocols of private companies, actually does constitute censorship as it would force them to allow the government to dictate what speech they would (or would not) host on their websites.

The notion that it would ever be wise to give the government this kind of power is quite jarring to encounter in America. It’s easy to see how this system would quickly eviscerate our fundamental rights to free speech by allowing the government to determine what belongs in the public square of discourse.

And, it’s important to remember that Biden appointees will soon be running these departments. This is an important reminder that the government bureaucrats who decide what counts as “neutral” will not be picked by your team forever. It would be prudent to stop giving the government more power that will only one day be used against you when your “team” is no longer in charge.

What’s next? Will they call to nationalize these platforms? This approach is antithetical to the ideals of limited government, free markets, and free speech.

“This bill forces platforms to make an impossible choice: either host reprehensible, but First Amendment protected speech, or lose legal protections that allow them to moderate illegal content like human trafficking and violent extremism,” said Michael Beckerman, president and CEO of the Internet Association.“That shouldn’t be a tradeoff.”

Myths About Section 230

While many seem to think that Section 230 makes a distinction between ideological publishers and neutral platforms, and that companies who act as publishers do not enjoy its protections, this isn’t true. Section 230 applies to all internet companies and makes no such distinction between publishers and platforms.

Section (c.) of Section 230 specifically addresses this point and speaks to the protection of companies who block and screen offensive material. It immediately states that “no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider. It goes on to say that when it comes to matters of civil liability, “no provider or user of an 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, lews, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.”

Publishers can be sued for defamatory language online, just as they can be sued for it in print. So can Twitter or Facebook, if they issue a statement or a post. But that isn’t a relevant scenario to Section 230, which again, merely maintains websites are not liable for content you may choose to write on their pages.

Removing content they find offensive is well within their First Amendment rights, and within their Section 230 rights. It doesn’t change their status as a company or their protections under the law.

Many advocates for repealing Section 230 have hung their cases on the “publisher vs. platform” argument in an attempt to mislead their followers. But the good news is, Section 230 is relatively short. You can literally read it in less than five minutes for yourself and see that the publisher vs. platform discussion is a non-issue.

There are also those who claim that Section 230 is a special protection or an exemption for social media companies. This argument also fails to hold water.

One of the few, legitimate functions of government is to uphold the rights of individuals; when that is done businesses have a secure and just climate to operate within. That is exactly what Section 230 did. When the internet came about, it opened up an entirely new marketplace and one that needed such rights affirmed in order for people to invest in it.

Section 230 merely applied the same types of laws we see in the tangible world to the online marketplace. Would Burger King be liable if you came in and shouted obscenities at their customers? Should they be forced to host you on their premises and allow your attack on their clients to continue? Of course not. The same rules should apply to an internet company, and thanks to Section 230 they do.

Furthermore, without this provision to protect an online free market, the courts would likely be bogged down with frivolous lawsuits, which would cost taxpayers dearly. Even sorting through and throwing out such suits is an expensive and time-consuming process.

The Right Way To Handle Social Media Bias

On this issue, those who believe in limited government and free markets need to put their principles over short-term political expediency. Individuals, whether acting alone or jointly through a business, have the right to free speech, meaning the government has no right to tell them what they can or cannot say. While we may disagree with their choices to remove some users or throttle access to certain content (and I do), it would be a violation of their fundamental rights to force them to host speech they disagree with.

This argument is akin to one that caught the attention of many conservatives years ago: The Christian baker, Jack Phillips, who famously refused to bake a custom cake for a same-sex wedding citing his free speech rights. Just as the baker had a First Amendment right to not endorse a message that violated his beliefs, so too do the owners of social media companies. If we dislike the ways in which they run their platforms, the proper solution is for us to create or fund their competitors—not use big government as a weapon to tread on them.

This is the beauty of the free market. We don’t need the federal government to get involved in this picture outside of creating a fair legal apparatus in which companies can flourish. With Section 230 they got this right, and consumers now enjoy a wide range of options online thanks to its provisions.

If users are unhappy with Twitter or Facebook, they can take their business elsewhere and vote with their feet. If enough users do that, Twitter and Facebook will willingly change their policies to attract users back, or they will cease to exist.

Some have noted that the network effect makes it difficult for social media competitors to attract new customers, referring to the fact that for some products users find more enjoyment in them when a large number of their peers partake in the experience. But MySpace used to have the network effect advantage, and it still lost out to upstart competitors. And the recent (and impressive) success of Parler shows that there is still room for competition in this picture.

As always, free people are far better equipped to solve this problem than the government.

This article was originally published on FEE.org. Read the original article.

The post What Is Section 230 and Why Does Trump Want to Repeal It? appeared first on The Libertarian Republic.

Mailchimp determined it will use its “sole discretion” to determine whether messages are misleading and can be removed.

In a customer message obtained by The Daily Signal, Mailchimp stated it made the policy change effective Oct. 28. The message said the policy seeks to clarify “what kinds of Content are prohibited for distribution using the Mailchimp platform.”

“Mailchimp does not allow the distribution of Content that is, in our sole discretion, materially false, inaccurate, or misleading in a way that could deceive or confuse others about important events, topics, or circumstances,” the message goes on to state.

The company said it will enforce new rules by “issuing a warning to, or suspending or terminating an account.”

Mailchimp’s public relations did not immediately respond to an inquiry from The Daily Signal.

Founded in 2001, Mailchimp states that it has millions of customers around the world and aims at allowing entrepreneurs to reach customers through email marketing. The company is headquartered in Atlanta and has offices in New York, Oakland, and Vancouver. The company remains owned by its founders Ben Chestnut and Dan Kurzius.

Republished with permission from The Daily Signal.

The post Email Marketing Firm Warns It May Censor Content appeared first on The Libertarian Republic.

Before the widespread adoption of social media, speech might have been free but being heard was often expensive. This technological constraint created gatekeepers in the mainstream media whose decisions were sometimes unjust but at other times brought stability and thoughtfulness to public discourse.

The economics of the internet has changed this landscape in ways we’ve only begun to understand. The cost of broadcasting one’s ideas around the world has fallen to near zero. The reality of network effects tends to concentrate people on a few social media platforms and search engines. In terms of the famous example meant to describe harmful speech, we’ve all been given megaphones and tickets to a crowded theater, and any of us can yell fire at any time.

These largely open internet platforms would look very different without Section 230 of the 1996 Communications Decency Act, which grants web platforms immunity from litigation for things its users say. The drumbeat from across the political spectrum to repeal Section 230 and silence the voices of bad actors is growing. While those concerns are justified, we need to fight even harder to protect speech online and its legal underpinnings, and that effort must come from all of us instead of on our behalf.

Nastier Than We Want Them to Be

In many ways Americans’ opinions on free speech have remained far closer to the classical liberal ideal than their opinions on free commerce. Rather than searching in vain for rules to get rid of speech we don’t like, the consensus has usually, though not always, come down on protecting such speech rather than regulating it. The debate has left in its wake a long line of often-cringeworthy antiheroes around whom the public has rallied but might not want to have over for brunch.

I was 12 or 13 when a friend brought over a cassette copied from his older brother that contained the music of one of the final free-speech antiheroes of age before the internet — the Miami rap group 2 Live Crew. The group’s message was hedonism pushed to such a limit that it would likely raise eyebrows even if it were released in less innocent times today. The arrests, trial, and successful appeal by the group that ensued wound up producing the iconic “Parental Advisory – Explicit Lyrics” sticker still used today.

I’m not sure one could create anything more riveting to a group of suburban junior-high-aged boys. For my progressive parents the issue was cut-and-dried — a line had to be drawn to stop censors and moral crusaders such as the high-profile prosthelytizing parents’ group led by Tipper Gore. Even at that age I remember wondering if the issue would be so cut-and-dried had my parents actually heard the album — my friends and I made sure they didn’t.

The Miami police department certainly wasn’t amused, and in June 1990 three group members were arrested after performing songs from the album in question at a local club. They were found guilty in district court but acquitted on appeal. Puritanical crusaders aside, most people supported their right to free expression. Consider the alternative — government regulating song lyrics that would constitute a first step down an all-too-visible slippery slope.

Almost 30 years later the controversy surrounding 2 Live Crew seems almost quaint. First, the potential damage from the offending speech was fundamentally limited. I’m afraid any problems I might have today can’t be blamed on rap lyrics having warped my mind. But rather than individual antiheroes, the information age gives us swarms of trolls, bots, and extremists who create echo chambers, seek out and radicalize the most vulnerable, and can create false information capable of swaying elections.

It doesn’t stop there. In the early 1990s speech may have been “free,” but broadcasting it to large numbers of people was quite expensive. In truth the antiheroes were successful artists with demand for their work and a record label willing to invest millions of dollars in recording and distributing it. Right or wrong, people were entertained, and the group’s leader and producer Luther Campbell is credited among the pioneers of a musical sound influential to this day. Nasty as they may have been, 2 Live Crew were let in by the gatekeepers. Then the gates collapsed.

Snowballing Trolls

We’re still trying to wrap our heads around the novel economics of internet platforms, developments due in large part to Section 230 of the 1996 Communications Decency Act. The brief passage speaks best for itself:

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

Platforms such as social media, search engines, and even services like Uber somewhat arbitrarily dubbed the “sharing economy” are game-changing in their ability for users to independently post and find information and engage with each other at an extremely low cost. That’s only the case, however, if the company owning the platform is allowed to act as facilitator rather than central planner. In an age where media companies made explicit choices over what they broadcast, civil and criminal liability, though potentially still debatable, made more sense. Online, the time and risk aversion required to act as gatekeeper and preclude litigation would likely have been almost prohibitive.

Any follower of Adam Smith should be excited by an information economy driven from the bottom up rather than dictated by media elites from on high. But as is the case with human freedom of any kind, the path to truly new ideas is littered with the potential for wrong turns that look far more problematic than some baudy rappers in a Miami nightclub. But now, more than ever, consider the alternatives.

Out of Many, Many

Two articles by Reason’s Robby Soave nearly a year apart suggest exactly why government shouldn’t take it upon itself to save us from our complicated new world online. Last March, Repubican Senator Josh Hawley railed against Section 230 as he chastised big tech for censoring conservative voices. A few weeks ago, Elizabeth Warren was shaking her head at Facebook for what it included — things she characterized as “disinformation.” While partially correct, both senators’ statements are confused and nakedly partisan, holding Facebook to the fire for failing to meet opposite obligations.

Why not simply repeal 230 and get out of the way, allowing internet platforms disciplined by the threat of litigation to act as gatekeepers? In one sense, that puts us right back where we were, with media corporations anointing a larger number of chosen ones. But anyone who has seen the realm of class action litigation up close knows that would lead to overzealous restrictions on platform speech. The threat of trials in front of juries who don’t find big companies sympathetic, the overzealous pursuit of cases and wins by the plaintiffs bar, and the temptation of settlement as an easy and relatively cheap way out for risk-averse corporations make for something almost as sanitized and elitist as the not-so-good-old-days for which people mistakenly pine.

The real way forward is illuminated, somewhat appropriately, by one of the most maddeningly incorrect readings of the Section 230 controversy I’ve encountered. Writing for the Brookings Institution, former FCC head Tom Wheeler just wants us to be united:

Social media undermines what the Founding Fathers were focusing on when they wrote “We the People” and established the motto “E Pluribus Unum” (out of many, one). The concept of “We” and the formation of a “Unum” is essential for democracy to work. Humans are inherently tribal. Democracy requires us to overcome that tribalism — to find our Unum — in the pursuit of a greater good. In contrast, the business plans of the dominant digital companies are built on dividing us into tribes in order to sell targeted access to each tribe.

Wheeler trots out the cliche “out of many, one,” but he is really saying, “out of many, me.” Social media prevents the adults in the room from keeping guard over what we can hear, and though their goals may differ, Wheeler and Senators Hawley and Warren all agree that the imperative is to get speech on internet platforms much more in line with what they would like it to be.

That’s both bad on its face and impossible in practice. We tend to think of dangerous speech online being planned by nefarious elements (see: Russion election meddling). What I see more at least with my own eyes are hundreds or thousands of smaller bad acts or neglectful behavior snowballing into disinformation and distrust.

Keeping Section 230 and protecting speech on the internet is not a passive act. It requires the many, rather than the one, to engage. Note the difference between engagement, tolerance, and censorship. Calls for “civility” in online dialog are appropriate but may miss the point. Without gatekeepers, we certainly must do better to not descend into ugliness in the digital realm. But that’s not enough — we reap the rewards of a room full of microphones when we’re curious about those who disagree with us. The flipside is doing more to reject those snowballing elements that create the problem. They can be free to speak as they please, but we are free to push back, especially against the nasty, extreme voices people might mistake for our own side.

Many will think I’m optimistic to a fault about the capacity of individuals to behave online. The result won’t be perfect, and for a while it probably won’t be good. But this technology is new, and we do learn from ourselves and each other. One can’t pretend the internet hasn’t made the dark side of free speech more dangerous. But rather than a censor, it’s time for a gut check. If you don’t think everyone should have a microphone in today’s age of low entry barriers, you have to say who does and doesn’t. That’s above my pay grade. Let’s use our microphones wisely.

The post Why We Must Keep Section 230 and Pay the High Cost of Free Speech Online appeared first on The Libertarian Republic.