Balkinization: Suing the President for Libel

Comments:

If defamation actions are permitted, these won't be the only ones.

# posted by

Mark Field : 12:59 PM

Gerard: It seems to me that Joe Scarborough or the family of the young woman that the President is dragging through the mud every day should sue for libel and point out that constitutional immunity for injurious speech was expressly withheld from the President by the Constitution.

Trump should not enjoy any immunity from a defamation suit.

On the other hand, Joe Scarborough is a public figure and repeating past stories is not defamation.

# posted by

Bart DePalma : 1:08 PM

I kind of doubt the speech and debate clause was actually written with defamation in mind; Probably more in terms of protecting the legislature from the executive.

Not that it wouldn't extend to defamation suits, on the face of it.

# posted by

Brett : 1:18 PM

At least two women have already sued Trump for defamation.

Summer Zervos did so on January 17, 2017, so that would be before he took office.

E. Jean Carroll did so while he was office.

===

Clinton v. Jones held that a sitting POTUS (or whatever Trump is) can be sued in federal court for unofficial acts. [Zervos' lawyers for some reason sued in state court.] It would be some sort of reach to make out as this latest (it is par for the course; he has promoted groundless conspiracy b.s. for years) is somehow official.

Nixon v. Fitzgerald (a 5-4 opinion; Justice White had a strong dissent) blocks civil damages for official acts. The quote (a bit exaggerated given the state of the law in 1939) suggests the dubious nature of that result. Even a member of Congress has limited immunity -- they cannot say whatever they want outside of their official duties. They are also restrained by house rules -- so, e.g., material they examine in private such as intelligence briefs still might not in some given case discussed.

This has led to some executive wrongdoing to be left unsaid in the process.

# posted by

Joe : 1:22 PM

Typo in the constitutional quotation in FDR's speech. It ends "... they shall not be questioned in any other Place."

# posted by

James Wimberley : 1:26 PM

I kind of doubt the speech and debate clause was actually written with defamation in mind; Probably more in terms of protecting the legislature from the executive.

The clause along with the privilege from arrest very well had origins in parliamentary privileges that arose from battles with the executive, though the judiciary was part of that in England. Furthermore, it was a general freedom of speech provision. One method to silence was various types of libel suits.

James Wilson, e.g., spoke of the importance of the legislator being protected from "the resentment of every one" though they might be penalized by rules of the legislature.

http://press-pubs.uchicago.edu/founders/documents/a1_6_1s16.html

# posted by

Joe : 1:44 PM

There is a familiar doctrine in defamation law of the "libel-proof plaintiff," someone whose reputation is so bad (at least in some way relevant to the allegedly defamatory statements--perhaps a convicted child molester can still sue over an accusation of securities fraud)that the defamatory statement can't actually hurt his reputation. Donald Trump recently won a defamation suit on the ground that no one could take the allegedly defamatory statements seriously given Trump's well-known lack of connection between his statements and reality. If Scarborough sues Trump, will we see the birth of the "libel-proof defendant," someone whose veracity is so notoriously bad that nothing he says can be defamatory?

# posted by

CJColucci : 1:53 PM

Trump is also basically the official head of a misinformation campaign. So, others are also spreading the information with his special assistance. But, regardless, many do still take what he says seriously. So, I think it still would be defamatory, even if we take the "libel-proof defendant" approach.

# posted by

Joe : 2:04 PM

Even if Trump were "libel proof" -- and I'm skeptical -- anyone re-tweeting him would be liable. Suing those people should not be problematic.

# posted by

Mark Field : 3:22 PM

How can Trump be libel proof when 40% of the country takes his word as gospel?

# posted by

Henry : 3:25 PM

"repeating past stories is not defamation."

https://reason.com/2018/11/07/is-accurately-repeating-a-defamatory-all/

# posted by

Mista Whiskas : 4:20 PM

Trump's Scarbough tweet epitomizes the current GOP: conspiracy theory with an utter lack of professionalism and decorum.

# posted by

Mista Whiskas : 4:22 PM

Democrats with a byline like Scarborough freely defame Trump under the public figure doctrine. Trump has the audacity to return the favor and the Dems are howling.

# posted by

Bart DePalma : 4:51 PM

It's always nice for Bircher Bart to make my point for me as he does with his most recent comment. Imagine if the best decorum and professionalism one expected from your party's President of the United States was to rise to the level of...a talk show host. Of course, Bircher Bart is a paranoid conspiracy theorist himself and has stated that he would support Trump even if the President murdered someone, so there's that.

Btw-Scarborough was of course a *Republican* congressperson, one of the Contract with America fellows with a 95 out of 100 rating by the American Conservative Union. He only left the GOP in 2017 (to declare as an Independent) because, well, look at what the GOP is now under that boorish lunatic lout.

# posted by

Mista Whiskas : 5:20 PM

Mr. W: Imagine if the best decorum and professionalism one expected from your party's President of the United States was to rise to the level of...a talk show host.

We agree. The POTUS should not descend to the level of the Democrat media. Let's reverse NY Times v. Sullivan and give public figures a remedy at law against media defamation. Until that happens, responding in kind is Trump's only remedy.

Btw-Scarborough was of course a *Republican* congressperson...

Scarborough has long since become a progressive Democrat with a byline. No self respecting conservative would have taken a gig at Pravda, er...MSNBC.

# posted by

Bart DePalma : 7:35 PM

It might be notable that the author of this piece is a self-labeled conservative though maybe not fitting in with the current Republican Party.

# posted by

Joe : 9:21 PM

This comment has been removed by the author.

# posted by

Mista Whiskas : 10:03 PM

The POTUS should not descend to the level of the Democrat media."

There is, of course, no 'Democrat media in the sense there are major media outlets that are essentially arms of the GOP. Every accusation is a confession.

"Let's reverse NY Times v. Sullivan and give public figures a remedy at law against media defamation."

Bircher Bart is, of course, an authoritarian who values protecting those in power over free speech.

"Until that happens, responding in kind is Trump's only remedy."

Like most hyper-partisans Bircher Bart has no principles other than 'winning' for his side, thus any tactic perceived to possibly create an advantage for the other side is not only allowed but seen as necessary.

"No self respecting conservative would have taken a gig at Pravda, er...MSNBC."

This is laughably bad logic. It's common for liberals like Juan Williams to work at Fox or conservatives like Hugh Hewitt to work at an outlet conservatives hate like the Washington Post.

Again, it's not surprising Bircher Bart defends Trump's boorish, unprofessional, mean spirited behavior here as he's literally said he'd stick with the man if he committed murder. He's a partisan lemming.

# posted by

Mista Whiskas : 10:05 PM

Peter Schuck writes that Trump could be sued successfully, including for punitive damages, not only by Scarborough for libel but by the widower for the intentional infliction of emotional harm. https://www.nytimes.com/2020/05/28/opinion/twitter-trump-scarborough.html?action=click&module=Opinion&pgtype=Homepage

# posted by

Henry : 5:59 AM

Liability is pretty much a slam dunk. The interesting part is that once liability is established, Trump would have to turn over all of his financial records for purposes of punitive damages.

# posted by

Mark Field : 8:45 AM

This comment has been removed by the author.

# posted by

Bart DePalma : 9:39 AM

Schuck: That should have been the end of the story, but earlier this week the president tweeted to his 80 million followers that “some people think” that Mr. Scarborough, now a popular MSNBC news host who frequent criticizes Mr. Trump, “g[o]t away with murder,” calling Mr. Scarborough a “psycho” and a “total Nut job.” The president has offered no evidence for this slander, because there is none.

Schuck is spinning.

“[S]ome people think" Scarborough "got away with murder" is directed at Scarborough, not his alleged victim and certainly not her family.

Finally, calling a political opponent generic names like hardly meets the standard of "wanton cruelty to another person who suffers emotionally as a result." Think instead of statements along the line of falsely accusing someone of molesting children in the neighborhood.

As Schuck correctly notes, as a public figure, Mr. Scarborough must prove that Mr. Trump made his defamatory comment either with actual knowledge that it was false or with “reckless disregard” for whether it was true or false.

"Some people think" followed by citing someone else's claim is the most common media innuendo in their tool kit and is almost never held to be defamation of a pubic figure. The statement is true on its face.

Finally, calling a political opponent generic names like hardly meets the standard of "wanton cruelty to another person who suffers emotionally as a result." Think instead of statements along the line of falsely accusing someone of molesting children in the neighborhood.

# posted by

Bart DePalma : 10:19 AM

Yeah, suggesting someone murdered his employee is nothing like accusing someone of child molestation. Bircher Bart knows this, because he's on record here saying if Trump murdered someone it wouldn't cause him to not support Trump.

This is the current GOP mainstream folks.

# posted by

Mista Whiskas : 10:29 AM

I make it a point to not attempt a rational discussion with anyone who simply insults whoever they disagree with, rather than dealing with the issues involved. So let’s try considering an important issue…rationally, without rancor, or name-calling.

Let me begin this hopeful debate by pointing out that I am not a master chef, not a trained auto mechanic, not a physician, and certainly not a certified psychiatrist. However, I know when an omelet’s been burnt, when a finger is broken, when my car’s brakes don’t work, and when a person is mentally deranged.

Naturally, I might very well be wrong in any or all of these instances. I could be in a restaurant in France, where I’m told that omelets are typically reheated and browned on the bottom. That “broken” finger may simply be a congenital condition with no serious consequences. I could, and have, accidentally put my foot on the wrong pedal. And the object of my “analysis” could simply be clowning.

But, should actual experts in any of these fields make such “diagnoses at a distance”? That is a serious question, which is a crucial one in these troubled times. Here goes my attempt to answer it.

Not being a psychiatrist, I see no reason why I can’t state unequivocally, and based entirely on his tweets, speeches, interviews, and his public statements, that President Donald Trump is mentally ill.

But, should a professional psychiatrist make such a statement about our President? My answer is “yes”. Diagnosis at a distance by professionals in their field of expertise is ordinarily, at the very least, an absurdity. But, as in many instances in this life, actions which may be flat-out wrong in most instances could, under extenuating circumstances, be essential.

Since Donald Trump is clearly one of the most powerful persons on earth, can order someone killed without being held to account, may even plunge us into war through his position as Commander-in-Chief of our armed forces…public recognition of his fragile mental condition by psychiatrists is not only acceptable but even required.

It has been some years since I’ve read Gulliver’s Travels, but I do remember that the protagonist did what would ordinarily be regarded as an unpardonable act...having made use of his giant stature and the contents of his bladder to urinate on the Lilliputian monarch’s palace. But it was on fire, and that was the only water readily available.

Maybe now is indeed the time when psychiatrists must commit what would ordinarily be an inexcusable offense, which consists of diagnosing a person at a distance. However, this time the subject is a person who could do, and has already done, irreparable damage to others, to this country, and even to the world.

And, perhaps, psychiatrists are even justified in analyzing at a distance anyone who can casually overlook the evidence that President Donald Trump is clearly showing signs of a serious mental illness.

John A. Broussard
http://www.kohala.homestead.com

# posted by

Unknown : 10:34 AM

""Some people think" followed by citing someone else's claim is the most common media innuendo in their tool kit and is almost never held to be defamation of a pubic figure. The statement is true on its face."

As the Volokh article I posted early in the thread discusses, repeating that 'some people think' a defamatory thing about X can indeed be defamation whether it's true that some people think that or not. Defamation by innuendo is a thing. As Volokh discusses the media would have protections that would likely not apply to Trump.

"directed at Scarborough, not his alleged victim and certainly not her family."

This is of course not obvious. Suggesting someone who died of natural causes was actually the victim of a shady murder could certainly impact the spouse and family of the person who passed away. That Birchers like Bart can't even acknowledge or even probably comprehend this is telling about them. Even were this not defamation, it's egregious social behavior *especially* after the spouse asks for his wife's plight to be left out of it. That Trump's Birchers not only defend this but cheer it on shows that the answer to Welch's question all those years ago "At long last, have you left no sense of decency?" is a resounding no.

# posted by

Mista Whiskas : 10:36 AM

BD: Finally, calling a political opponent generic names like hardly meets the standard of "wanton cruelty to another person who suffers emotionally as a result." Think instead of statements along the line of falsely accusing someone of molesting children in the neighborhood.

Mr. W: Yeah, suggesting someone murdered his employee is nothing like accusing someone of child molestation. Bircher Bart knows this, because he's on record here saying if Trump murdered someone it wouldn't cause him to not support Trump.

Your first lie about what I posted of the morning.

# posted by

Bart DePalma : 10:37 AM

I don't think Trump is seriously mentally ill. He's just a mean-spirited, boorish, simple minded person whom one of our major party's loves as the President of the United States. We shouldn't medicalize what are social/moral failings.

# posted by

Mista Whiskas : 10:40 AM

Does Bircher Bart deny that he said here on Balkinizations that he would still vote for Trump even if Trump murdered someone? Because I'd be happy to go the archives and demonstrate who is lying.

# posted by

Mista Whiskas : 10:41 AM

Lol, Bircher Bart I guess did catch me in an error. In my typo I incorrectly said that Bircher Bart said if Trump murdered someone he'd not support Trump. Of course what eh said was that if Trump murdered someone he would *still* do so!

I can see where he'd want that straightened out!

# posted by

Mista Whiskas : 10:43 AM

"I don't think Trump is seriously mentally ill. He's just a mean-spirited, boorish, simple minded person.... We shouldn't medicalize what are social/moral failings."

I am not a psychiatrist, but it seems obvious that Trump is more than "mean-spirited, boorish, and simple-minded." Whether his condition fits under the DSM is not my area of expertise. But he is clearly narcissistic, a pathological liar, incapable of empathy, and the most insecure and emotionally immature adult whom I have ever seen. Lots of people are "mean-spirited, boorish, and simple-minded." Fortunately, not many are like Trump.

# posted by

Henry : 10:48 AM

Henry, the number of GOPers criticizing Trump on this behavior is few and far between because their base has lots of people who are like Trump.

# posted by

Mista Whiskas : 11:05 AM

I don't know. The fact that someone supports Trump does not mean that they are like him. They may have different psychological problems.

# posted by

Henry : 11:08 AM

Good point.

I would like to find out what their psychological problems are......

# posted by

Unknown : 11:12 AM

I know lots of actually very decent people that voted for Trump. But I also know a lot that support him who are a lot like him. I'm sure it makes it easier.

# posted by

Mista Whiskas : 11:15 AM

You know, Romney votes with Trump 9 out of 10 times or more. But a lot of Republcans viscerally hate him and love Trump. This can't be chalked up to policy differences. The only real difference between Trump and Romney is the latter carries himself in a professional way with decorum and not so much mean spiritedness. That's a bug not a feature for a lot of Republicans.

# posted by

Mista Whiskas : 11:22 AM

"I don't think Trump is seriously mentally ill. He's just a mean-spirited, boorish, simple minded person whom one of our major party's loves as the President of the United States."

Why not both?

# posted by

Mark Field : 11:22 AM

I can think of three people I know who voted for Trump and may do so again. (Yes, I hang out in liberal circles.) All three are sane and intelligent. They voted for him because they've always voted Republican and cannot imagine voting for a Democrat. To vote for Trump, however, requires gross self-delusion on their part, because they cannot allow themselves to see how different he is from other Republicans for whom they've voted. So they say things like, "All politicians lie," "He can't be racist because he hired Ben Carson," and "Obama separated families too."

# posted by

Henry : 11:22 AM

""All politicians lie,"

As I think Mark has noted here before a lazy general cynicism often enables awful people and regimes.

# posted by

Mista Whiskas : 11:28 AM

Mr. W:

Professor Volokh does not discuss our situation - the combination of the republication rule and the public figure "malice standard" as applied to referring people to a media publication. He merely notes: "For instance, if Paul is a public official or a public figure, Don is immune from liability unless he spoke knowing that the statement was false, or at least having "serious doubts as to the truth of" the allegation." Short of a confession by Trump, this is almost impossible to prove.

As for the family of the deceased, Professor Schuck correctly spent almost no time discussing this claim because there is little to no basis for it.

# posted by

Bart DePalma : 11:30 AM

Along with the real media bias: 'both sides-ism' (which enables them to lazily demonstrate the professional ethic of fairness).

# posted by

Mista Whiskas : 11:30 AM

This comment has been removed by the author.

# posted by

Joe : 11:33 AM

This comment has been removed by the author.

# posted by

Joe : 11:38 AM

I'm not a psychiatrist or someone who went to Holiday Inn Express.

Some with such knowledge have written an analysis that Trump has let's say serious issues. Others say this is unethical given the appropriate technique is actually interviewing the subject, looking at medical records etc. before making a judgment call.

Me? I don't know. As an observer, he seems a bit more than you know a total asshole type. There are many such people. He also at times shows signs of certain medical problems or taking certain medications that are flags. Again, that is guessing & I'm not going to assume it as some do. There are flags there & if we had some sort of independent 25A established body, there might be grounds for a mandatory check-in there.

But, it's best to be cautious there. Since we are basically off topic, a bit more on a past thread on the "really bad flu" line.

(1) Looking up the nursing home issue, it looks like Gov. Cuomo followed federal guidelines (CDC included but they are selectively cited by some for their own purposes) for a logical reason that nursing homes would be a sensible place to send people, often elderly, to avoid overwhelming hospitals. And, they logically would be a place many would die. I might not be getting all the alleged "gotchas" there, but it isn't a way to handwave 100k deaths and a lot more sickness and pain/suffering.

(2) Signs are present the "very bad flu season" will be even more "very bad" and might be more "very bad" than assumed. For instance, there has been flagged that there are thousands more pneumonia deaths that appear to be COVID-19 related. Also, there is reason to estimate lots more deaths to come. But, as before, a lot of caution is also warranted. Caution is not immoral or panicky.

# posted by

Joe : 11:39 AM

Henry: They voted for him because they've always voted Republican and cannot imagine voting for a Democrat. To vote for Trump, however, requires gross self-delusion on their part, because they cannot allow themselves to see how different he is from other Republicans for whom they've voted.

There are many Republicans, including myself, who reluctantly cast a 2016 vote for Trump because he was the lesser of the two evils on the ballot for POTUS. In the primary, I supported Cruz as a far superior candidate.

By nominating another corrupt establishment candidate like Clinton who is also very visibly suffering from dementia, the Dems are hardly resolving their lesser of two evils problems with Republicans like myself.

# posted by

Bart DePalma : 11:40 AM

"By nominating another corrupt establishment candidate like Clinton who is also very visibly suffering from dementia, the Dems are hardly resolving their lesser of two evils problems with Republicans like myself."

Dementia indeed.

# posted by

Mista Whiskas : 11:59 AM

Every accusation is a confession.

https://www.youtube.com/watch?v=wXKxLkTo4do

# posted by

Mista Whiskas : 12:08 PM

Mr. W:

Usual Youtube propaganda cherry picking utterly unrelated snippets together. Whatever.

If anyone else here gives a damn that the man they want to serve as POTUS regularly loses track mid-sentence of where he is located and the subject he is discussing, social media is filled with full length, unedited examples of Old Joe's dementia.

# posted by

Bart DePalma : 12:54 PM

Lol, it's on Youtube but it's a Daily Show production. Dementia indeed.

And, of course, as the video shows, anyone who watches Trump speak knows he can't finish or form basic sentences with regularity.

Every accusation is a confession for these people.

# posted by

Mista Whiskas : 1:00 PM

Mr. W:

Everything on Youtube is posted by someone else; in this case, your primary news source, the Daily Show.

# posted by

Bart DePalma : 1:24 PM

Somewhere in this discussion the question of whether or not Trump is a liar has come up. That question deserves the comment that, whether or not he lies is really irrelevant. What is important is whether or not what he says is true. Fortunately, that is much easier to resolve than dealing with the pejorative term “liar.”

If a person flatly contradicts themselves….over and over again. Than there is something radically wrong with that person. No moral judgement need be made.

If that person happens to be the President of the United States, then those flat-out contradictions have significant consequences for this country, and for the whole world. That person cannot be trusted. But trust, alone, is not the issue. The question really is, “What should be done about this extremely dangerous person?”

# posted by

Unknown : 1:31 PM

"Everything on Youtube is posted by someone else; in this case, your primary news source, the Daily Show."

Sure, of course our Bircher knew that before I pointed it out to him, that's why he said called it "Youtube propaganda."

# posted by

Mista Whiskas : 1:40 PM

I think the various nuances of the "liar" comment is good ... that term has a certain bite and is not just someone who lies once or whatever. And, who is involved etc.

“What should be done about this extremely dangerous person?”

Various options. (1) Susan Collins is concerned (2) Speaking out and other things that causes pressure that is likely to have some sort of concrete effects including weakening your official accomplishments in some fashion (3) Concrete acts like holding up or defeating confirmations, asking for information, oversight etc. (4) 25A (5) impeachment (6) elections. (7) Nothing/"both sides"/other side at fault (8) Other.

Meanwhile: "@PressSec says they hope to have the social media [executive order] done for signing before 5 pm but it's still in flux"

# posted by

Joe : 2:37 PM

Here's something you can do.

An open letter to my Congressional Delegation

HE HAS ME WORRIED

It is becoming increasingly evident that there is something radically wrong with our President. His long speeches are becoming more and more rambling , more and more confused and confusing, more and more evidence that he is not thinking rationally.

Now, I want to make it clear. I am not a psychiatrist. I may be completely wrong about what is happening in and to the mind of Donald Trump. However, those far more knowledgeable about mental health than I am are beginning to voice frightening descriptions of what is happening to that mind. Their comments range from “deranged” to “on the point of a complete breakdown.”

I am aware that diagnosis at a distance is a practice that should be rare on the part of such professionals, but there are very extenuating circumstances in this instance. If the leader of the most powerful nation in the world, who has his fingers only a few inches from the button that could wipe out millions of human beings, is hovering on the brink of complete madness, then I want to know what precautions are being taken for preventing that catastrophic result of his insanity.

Since you are closer to the workings of our government than I am, I’m asking you to look into those precautions and to make a public statement about the extent to which they may or may not be put into practice should such action become necessary.

John A. Broussard

broupome@hawaii.rr.com

# posted by

Unknown : 2:57 PM

Excellent letter, but I have a quibble: the word "complete" in "complete madness." It has no meaning.

# posted by

Henry : 3:05 PM

I see Cheeto Mussolini is doing the totally libertarian thing of signing an executive order calling for tighter government involvement in online speech today or the totally libertarian reason that an online company dared say something he said violated their terms of service.

King Obama indeed!

# posted by

Mista Whiskas : 5:07 PM

Laurence Tribe and Joshua Getzler on the executive order: https://www.washingtonpost.com/opinions/2020/05/28/trump-is-doubly-wrong-about-twitter/

I really believe that Trump doesn't know that he cannot amend federal statutes.

# posted by

Henry : 5:16 PM

AG Barr was right there with him, corrupting the Justice Department some more.

# posted by

Joe : 5:17 PM

Sorry, it's Geltzer, not Getzler. And here is an article he wrote that explains section 230. https://slate.com/technology/2019/02/cda-section-230-trump-congress.html

# posted by

Henry : 5:20 PM

It seems to me that a compromise is possible here. An online company that allows comments should be able to set up the rules for those comments. These rules should be specific, clear and understandable, viz. number of words per comment. Rules capable of various interpretations are still fine. If potential commentators don’t like any of the rules, they can go elsewhere

If a commentator violates the clear and understandable rules, he can be barred from further comments.

In all instances, nothing should prevent the online company from commenting on any listing, Again, you can always go elsewhere if you don’t like the treatment you are getting.

John A. Broussard
broupome@hawaii.rr.com

# posted by

Unknown : 5:27 PM

I checked the EO and other than a lot of b.s. and (sorta his thing) basically defaming by name a member of Congress, it is somewhat unclear what it actually does. But, by motivation and intent alone, it clearly has First Amendment problems.

# posted by

Joe : 5:42 PM

"It seems to me that a compromise is possible here...."

Who would be compromising with whom? Internet companies can already do what you propose without risk of liability. See the Slate article whose URL I gave at 5:20 PM.

# posted by

Henry : 5:55 PM

It's a way for the company to reach a compromise with the commentator. And vice-versa.
John A. Broussard

# posted by

Unknown : 5:59 PM

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# posted by

Unknown : 7:22 PM

The far more interesting topic concerning Trump tweets is his proposed and legally awkward use of the absolute bureaucracy to impose content neutrality regulations on social media to prevent their increasingly prevalent censorship of libertarian and conservative points of view.

As a point of disclosure, Facebook blocked one of my posts reporting COVID data from ERs which did not support continued government shutdown, so I definitely have a dog in this fight.

To start, this is an issue for Congress, not the bureaucracy. While I can understand the POTUS's frustration with incidents like Twitter's highly partisan Democrat content director labeling and partially blocking access to his tweet promising to send military assistance to burning MN as "glorification of violence" and the Dem House's partisan defense of such censorship, decreeing regulation is not the proper avenue here.

However, Congress needs to treat social media platforms like Twitter as common carriers and mandate content neutrality. Jack's suggestion "content moderation (censorship) is necessary for social media to perform their appropriate social function in the new digital public sphere" is extremely disturbing. We no more want Twitter denying or limiting service to people with whom it disagrees than we want cell carriers to do so.

# posted by

Bart DePalma : 9:57 AM

Twitter was wrong to label Trump's tweets "glorification of violence." What they are are advocacy and encouragement of murder. For a police officer to shoot someone solely for looting constitutes murder.

Doesn't Bart know that Balkinization's audience, consisting heavily of lawyers, is not going to fall for the charge that Twitter's engaging in free speech constitutes censorship, or not know that for Congress to mandate content neutrality would violate the First Amendment?

# posted by

Henry : 10:05 AM

Content neutrality should not mean the company can't comment on submissions..

John a. Broussard

broupome@hawaii.rr.com

# posted by

Unknown : 10:38 AM

Isn't this proof that Donald Trump is a threat to our nation's continued existence?

# posted by

Unknown : 10:42 AM

"Congress needs to treat social media platforms like Twitter as common carriers and mandate content neutrality"

Remember when Bircher Bart used to argue with me 1. that there wasn't a long history of government regulation of common carriers until the mean ol' 'progressives' came along and that 2. it was socialism?

This person has no principles other than partisanship.

# posted by

Mista Whiskas : 10:44 AM

Henry: For a police officer to shoot someone solely for looting constitutes murder.

The Trump tweet never advocated anything of the kind.

Doesn't Bart know that Balkinization's audience, consisting heavily of lawyers, is not going to fall for the charge that Twitter's engaging in free speech constitutes censorship

Twitter commentary is their free speech, but Twitter limiting access to a Trump tweet is censorship.

# posted by

Bart DePalma : 10:48 AM

"Facebook blocked one of my posts reporting COVID data from ERs which did not support continued government shutdown, so I definitely have a dog in this fight."

Bircher Bart shows once again what 'principles' ostensible libertarians have: laws are to protect but not bind him and to bind and not protect others.

If someone doesn't like Twitter or Facebook, let them go to another platform or create their own. That's what our ostensible libertarians say in any other context. But like their Daddy in the White House their real only principle is: that company didn't treat me the way I wanted, waaaah!

# posted by

Mista Whiskas : 10:49 AM

Mr. W:

Anglo/American Laws regulating common carriers predate the US.

There is a fundamental difference between the government affirmatively directing common carriers to perform an act and negatively forbidding common carriers from arbitrarily denying promised service to the public.

# posted by

Bart DePalma : 10:51 AM

"Twitter limiting access to a Trump tweet is censorship."

It's no more censorship than if Wal-mart doesn't let me in their store with a shirt that says F*ck Trump!'

Partisanship over principles yet again, as the conservatives keep up their never ending cry of victimization and working the refs.

# posted by

Mista Whiskas : 10:52 AM

Mr. W: If someone doesn't like Twitter or Facebook, let them go to another platform or create their own.

The better libertarian approach is for the government to enforce the common carrier offer of contract to provide the general public a service.

If Twitter wishes to make itself a private partisan club, it is free to so limit its service.

# posted by

Bart DePalma : 10:55 AM

"There is a fundamental difference between the government affirmatively directing common carriers to perform an act and negatively forbidding common carriers from arbitrarily denying promised service to the public."

1. Twitter and Facebook are not 'common carriers.' and 2. There is no distinction worth a difference.

# posted by

Mista Whiskas : 10:57 AM

BD: "Twitter limiting access to a Trump tweet is censorship."

Mr. W: It's no more censorship than if Wal-mart doesn't let me in their store with a shirt that says F*ck Trump!'

Once again, analogy is not your string suit.

Twitter is making an offer of contract to provide a communications venue for the general public. Walmart is not.

# posted by

Bart DePalma : 10:58 AM

Mr, W: Twitter and Facebook are not 'common carriers

Why not?

# posted by

Bart DePalma : 10:59 AM

Henry: For a police officer to shoot someone solely for looting constitutes murder.
Bart: The Trump tweet never advocated anything of the kind.
Trump: “when the looting starts, the shooting starts”
QED

Bart: "Twitter limiting access to a Trump tweet is censorship."
Mista Whiskas: "It's no more censorship than if Wal-mart doesn't let me in their store with a shirt that says F*ck Trump!"

They are both censorship, though of course not First Amendment violations. Limiting access to readers is the definition of censorship, and that would occur in both the Twitter and the Walmart examples.

# posted by

Henry : 11:00 AM

"The better libertarian approach is for the government to enforce the common carrier offer of contract to provide the general public a service."

What is the libertarian reasoning for government to regulate common carriers in this way? I thought people could do what they like with their property and businesses, including denying service when they wanted, with government relegated to enforcing specific contracts or injuries in tort.

# posted by

Mista Whiskas : 11:01 AM

"Twitter is making an offer of contract to provide a communications venue for the general public. Walmart is not."

Wal-mart is as open to the public as Twitter.

# posted by

Mista Whiskas : 11:02 AM

"Why not?"

Bircher Bart doesn't understand the idea that if a person makes an argument it's on them to defend its premises. Twitter is not currently considered a common carrier.

# posted by

Mista Whiskas : 11:04 AM

Also, according to Bircher Bart there is a 'presumption of liberty' built into our Constitution (though nowhere stated) such that any federal regulation of another's property requires a showing of strict scrutiny. How does this regulation satisfy strict scrutiny?

Remember, Bircher Bart never believed in this nonsense in the first place as can be seen in this example.

# posted by

Mista Whiskas : 11:08 AM

To sum up a bit, the idea that government can regulate industries that are common carriers opens up the very possibility for 'progressive' polities (this is why the Interstate Commerce Commission is often seen as such a portent of the 'progressive, administrative state' in the US). Bircher Bart has long argued against this kind of thing, but here embraces it because his Dear Leader and Party have now asked for it.

# posted by

Mista Whiskas : 11:16 AM

This comment has been removed by the author.

# posted by

Bart DePalma : 11:21 AM

Mr. W: Bircher Bart doesn't understand the idea that if a person makes an argument it's on them to defend its premises.

Fair enough. I should not assume you know anything.

Generally, common carriers are private companies that sell their services to everyone on the same terms. Congress has regulated telegraph and telephone companies for decades as common carriers.

Recently, in the 1996 Telecom Act, Congress defined “telecommunications services” as businesses which transmit a user’s information from one designated point to another without changing the form or content of that information, and regulated the same as common carriers.

Twitter, Facebook and other social media easily fit within these definitions, allowing Congress to regulate them.

Now, why do you believe this is not true?

Mr. W: Bircher Bart doesn't understand the idea that if a person makes an argument it's on them to defend its premises. Twitter is not currently considered a common carrier.

True, which is why I am advocating Congress enact the necessary statute.

# posted by

Bart DePalma : 11:22 AM

"common carriers are private companies that sell their services to everyone on the same terms"

Almost every company fits that definition. The GAP, Starbucks, Planet Fitness, Masterpiece Cakeshop. I'm interested to see Bircher Bart backing the heart of the 'progressive state' which is that regulation of these kinds of companies is simply carrying on the tradition of common law principles on common carriers.

Libertarian thinkers, such as Richard Epstein, resisted this idea of course. He argued that the only regulation consistent with common law principles, and libertarianism, was when common carriers were in fact or essence monopolies. Twitter and Facebook are certainly not monopolies.

# posted by

Mista Whiskas : 11:43 AM

Prof. Danielle Citron [an expert in the area covered] and Dorf on Twitter (ha), Prof. Howard Wasserman (citing Prof. Volokh, a conservative/libertarian blogger) at a blog GM sometimes blogs at and others have interpreted the EO as a matter of a law. The general consensus being it is bluster, confused as law and largely political theater. As HW noted:

"I agree with the general consensus that, while this will have no legal effect, it will make life difficult and annoying for Twitter, under the threat of the federal government (including a corrupt AG) watching them and their users. Which is the point."

I also saw another legal analysis noting the basic rule (to the degree we take that seriously; nothing is likely to come of it -- even if you wanted to change the policy) proposed can in fact harm Trump types on Twitter. Let's not ignore that the executive order, from the "high school civics" executive, singled out a member of Congress by name, defaming the person in the process. Just as they teach in civics class.

This is all of a piece of the original piece on some basic level.

===

Reference was made to "censorship." That's a tricky word. The core meaning is a sort of wrongful suppression of ideas. A parliamentary rule that you can't curse, interrupt and that each person has a set amount of time to speak "censors" by some definition.

Speech is regulated in various ways. Is suppression of true threats a form of censorship? The more specific issue is regulation of a certain platform or the like. In that fashion, free speech includes allowing "censorship" per the agreed upon rules of the game. A vegan society need not allow a speech promoting hunting. This blog need not include comments. And, Twitter need not allow crude language that is not necessarily legally actionable or tweets that promote lies w/o providing a reply.

(I use quotes since the word "censorship" again has a more negative connotation.)

Freedom of speech, like equality, is a good, so it should be promoted even if not legally compelled. That still would involve limits. As to the specific question, again, the EO is confused partisan bs.

# posted by

Joe : 12:18 PM

"This is all of a piece of the original piece on some basic level."

I mean the original conversation on bringing a lawsuit against Trump etc.

# posted by

Joe : 12:21 PM

"Twitter and Facebook are certainly not monopolies."

I'm not so sure of that. In any case, see Prof. Balkin's post at the top of the page, especially his third point.

# posted by

Mark Field : 12:22 PM

I should expand on the monopoly issue. Prof. Balkin's post suggests that Facebook is, for practical purposes, a monopoly. He knows far more about this than I do, but I'm not sure it's a monopoly for purposes of the issue at hand. Facebook may have a monopoly on the stuff ordinary people use it for, like sharing family photos and tracking school classmates.

But what we're discussing is quasi-political stuff like hate speech, threats of violence, lies, political intimidation, and the like. I'm not sure Facebook has any kind of monopoly on that, because that kind of stuff exists on many forums such as 8chan, 4chan, Twitter, Gab, and elsewhere.

Maybe the argument is that Facebook's market position with respect to ordinary usage amplifies the bad stuff in a way that other platforms don't. I think that's a different argument than simple "monopoly", though I guess the remedy might be similar (break up the company).

# posted by

Mark Field : 12:30 PM

"Reference was made to 'censorship.' That's a tricky word. The core meaning is a sort of wrongful suppression of ideas."

I just looked up the word, and you are right. In my 11 AM comment, in which I said that Twitter's or Walmart's limiting access to speech is censorship, I was using the word neutrally to mean restricting speech. In the future, I'll use "speech restrictions" instead of "censorship" when I mean it neutrally.

# posted by

Henry : 12:32 PM

Mr. W: "common carriers are private companies that sell their services to everyone on the same terms"...Libertarian thinkers, such as Richard Epstein, resisted this idea of course. He argued that the only regulation consistent with common law principles, and libertarianism, was when common carriers were in fact or essence monopolies

Because you are not offering a cite, I am assuming Epstein is discussing government regulation of market variables like price in the case of natural monopolies.

As I noted above, I am working off a different premise - "The better libertarian approach is for the government to enforce the common carrier offer of contract to provide the general public a service." Or in the case of telecoms, an offer ot the general public to "transmit a user’s information from one designated point to another without changing the form or content of that information."

Under hornbook contract law, the telecom changing the terms of that agreement after the fact by "moderating" what user information information they will transmit is void. I would have Congress enact a law enforcing that basic rule against social media engaged in interstate commerce.

# posted by

Bart DePalma : 12:34 PM

"Maybe the argument is that Facebook's market position with respect to ordinary usage amplifies the bad stuff in a way that other platforms don't."

That is how I largely see it -- usage and reach of Facebook outmatches significantly other platforms, some which are more "niche" in nature. I'll note, fwiw, I didn't even hear of "Gab" until it was referenced recently in this general discussion.

(One liberal leaning news figure made a comment on Twitter that it really is of little effect if Trump is restrained or even blocked from Twitter since he has so many other platforms. True on some level, but it still would be significant. Also, when even a small platform makes a stand, let's say protecting GLBTQ rights -- it is meaningful.)

# posted by

Joe : 12:45 PM