Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The Bounds of Political Discourse: Why the Trump Bans Make Sense
Several technology firms have recently banned Donald Trump for inciting a riotous, deadly insurrection. Many have criticized these decisions as censorship. Experts on free expression law have patiently explained that only the state is bound by the First Amendment, not private companies. From this perspective, the public/private distinction is paramount, and tech firms fall on the right side of it, as speakers themselves (rather than regulators of speech). But what if it is precisely the public character of key technology firms--their critical role in shaping our political discourse--that justifies the bans? I think such a realization could be critical to healing U.S. democracy, and make a case for it below.
I have been thinking about regulation of (and by) internet platforms for many years. My initial concern was with monopolists leveraging their power over search to extract excessive fees from advertisers, to treat “organic content” unfairly or recklessly, or to exclude competitors or unpopular views. That led to my first Congressional testimony on the topic. As online radicalization became a bigger threat, I also supported the right and duty of platforms to exclude dangerous lies, threats, and services—and the power of government to regulate them in order to accomplish the same. I presented this work in Brussels and Berlin, in the latter context among regulators from the Media Authority of Berlin and Brandenburg State (MABB) with a keen understanding of the historical role of mass media in abetting the rise of fascism.
Under classic First Amendment doctrine, the power of the private firms like Google, Apple, Twitter, Amazon, and Facebook to deny access to users is sweeping. They can either be conceived as media (with expansive First Amendment protections) or a form of “intermedia” (like cable companies, which can also assert free speech rights). It is strange to hear conservatives complain about these powers, since they worked so strenuously to expand them. But there is also a certain disingenuousness to simply replying “they’re private firms, they can do whatever they want” to claims of censorship on the right. Had these platforms banned certain liberal or left politicians or causes, there would be justified anger and calls for government regulation—perhaps even for the “must-carry” regulations I described in 2016.
There is a way out of the impasse, though, by focusing on the uniquely toxic character of Trump and the networked falsehoods and conspiracy theories he promotes. Trump's posts have an actual and substantial effect on galvanizing violence and other anti-democratic or dangerous activity. Trump has, among his over 20,000 false or misleading claims, repeatedly accused members of the Democratic opposition of criminal activity. He has misled the public about COVID-19, with disastrous results. He and his enablers in Congress and online have, without evidence, made baseless claims about “vote dumps” and stolen elections. This type of lie goes to the heart of U.S. democracy. And if you sincerely believed it, as it was amplified in a media universe full of politicians and journalists concocting objections "based on" allegations that were "based on" no more than the original objections, why would you not think it proper to arrest the “election thieves,” violently overthrow their rule, and install Q to count the “real” electoral votes? The logical conclusion of such inflammatory, baseless, and peremptory political appeals is militancy, political violence, and insurrection.
As Aaron Rupar has reported, "The president is normalizing conspiracy theories that portray his political opponents as satanist pedophiles." When false, such forms of speech and political appeal are beyond the bounds of political discourse because they foreseeably generate violence. Nor is this tsunami of misinformation new. As historian Timothy Snyder argues, Trump “never took electoral democracy seriously nor accepted the legitimacy of its American version. Even when he won, in 2016, he insisted that the election was fraudulent — that millions of false votes were cast.” His supporters embraced apocalyptic rhetoric then and now. Pizzagaters pushed an image of top Democrats as an evil child-trafficking cabal. One could probably pick from the Trump Twitter feed at random to find baseless efforts to paint his opponents as not merely misinformed or misguided, but as threats to the foundation of democracy itself.
This was, of course, a form of projection. And the answer to it is not the milquetoast "both sides-ism" that says anyone trying to paint an opponent as a threat to democracy is beyond the bounds of political discourse. Rather, it is to recognize baseless efforts to do so so (like those of Trump) and to realize that such efforts are themselves examples of what they claim to preempt. The history of fascism teaches that this is a common way of taking advantage of what Popper called the paradox of tolerance.
Use of the term "fascism" to describe Trumpism has been controversial among some intellectuals. But the chilling images of Nazism and the Confederacy on view at the January riot were concrete examples of the extremism that has flourished online. Facebook's own internal researchers have acknowledged that "64% of all extremist group joins are due to our recommendation tools." Promotion of Nazi or Confederate values should not be protected political speech (a lesson French and German courts seem to have learned much better than U.S. ones). The gallows on the Capitol grounds, as well as the repeated racial slurs against Capitol Police, were not contributions to democracy. Rather, they were part of an effort to derail democracy by subordinating and silencing minorities. As Sherrilyn Ifill, President & Director-Counsel of the NAACP Legal Defense and Educational Fund, has observed, "Lynchings were followed by normalization, silencing and impunity. As a result they continued for decades unchecked. We must do the exact opposite in our response to this attack."
There are at least two responses to the lies, racism, and violence at the core of the attack on the Capitol. One is to simply put faith in an unfettered marketplace of ideas, hoping that a critical mass of Trumpist Republicans will back away from the idea that elections are rigged for Democrats, that millions of false votes are cast, etc. But what the recent bans reflect is a dawning realization among technology firms that this marketplace of ideas is dysfunctional. It is not self-correcting—or at least it is not self-correcting enough to prevent a significant group of persons (with the guns and votes to cause real havoc) from acting on false beliefs that, say, the presidential election of 2020 was stolen, that COVID-19 is just a bad flu, that Democratic leaders are a cabal of child abusers, and so on.
Thus I applaud the recent decisions of dominant tech media and intermedia not because of their private character, but precisely because of the public functions of those firms. They are the actions a self-protective state would take in the face of dangerous misinformation if it were not bound by unreasonably expansive interpretations of free expression law. The violent and coordinated movement of a small but powerful set of citizens, to undermine the shared sense of a common reality upon which both democracy and public health depend, is a foreseeable outcome of that binding of federal and state governments by the U.S. Supreme Court.
In the U.S., long-term litigation and public relations projects of the right (and some civil libertarians) have gradually expanded interpretation of the First Amendment so as to make almost any self-protective shaping or limitation on political discourse seem illegitimate if done by the state. Therefore, we must now throw ourselves on the mercy of tech firm CEOs to address some of the most dangerous aspects of Trumpism. But in the long run, the danger posed by what Mary Ann Franks calls The Cult of the Constitution merits a wholesale rethinking of the relationship between the state and the public sphere.
To put it bluntly: democratic political discourse has bounds. Debate on those bounds is not simply the domain of “First Amendment specialists.” Democracy-preservation, anti-racism, and national security frames are needed, too, as thinkers like Franks, Danielle Keats Citron, K-Sue Park, Joshua Geltzer, and Peter W. Singer have emphasized. Those who would seditiously conspire to overthrow the result of an election are not just one among many factions in our pluralistic political system. They are its enemy. And when they show up to the Capitol building, or state capitals, with a gun-studded fusion of “protest” and menace, they are intimidating actual lawmakers and judges from doing the work of democracy. Nor is "counter-protest" an answer when their opponents fear getting shot or harassed.
Some liberals may reply that a position like mine is an open invitation to the state to suppress all manner of expression--not simply the forms of extremism and lies I have focused on. However, the dynamics of minoritarian political leverage in the U.S. pose a far more clear and present danger to a robust public sphere. Extremist beliefs can easily become a touchstone of electability, given the relatively small number of persons needed to win party primaries, and the ease with which parties can manipulate voting rules to keep themselves in power near-permanently. Forty-five percent of Republicans polled after the riot said they supported the storming of the Capitol. That number may wane as more details emerge about the violence and mayhem of January 6. But it is likely to persistently include enough of the GOP to influence the party’s primaries for years--unless steps are taken now to reduce the spread of extremism. Those who will interpret the First Amendment in the future are a product of today's politics. A Trumpist judiciary is not that likely to look back on Clinton- or Obama- or Biden-era forbearance with respect to, say, the fairness doctrine, and then conclude it needs to be similarly careful about limiting the power of the state. To preserve freedom of expression, appeals to "neutral principles" may be far less important than concrete interventions to reduce the spread of extremism, including into the judiciary itself.
Elsewhere on the political spectrum, the followers of Carl Schmitt may mock me for insisting that political discourse has any bounds whatsoever. For Schmittians, the friend/enemy distinction is the core of political life; it has no other necessary content. Other disciplines have different cores: science revolves around the pursuit of truth; art around beauty or at least the exploration of new forms; and law around the pursuit of justice. Terms like truth, beauty, and justice have a normative core and moral resonance. Schmitt’s authoritarian emphasis on the friend/enemy divide disdains normativity entirely. I find it a repugnant conception of politics, given the rich democratic theories of deliberation, participation, and equality developed before and after his time.
Schmitt's thought may seem alien to our time. But his brutal positivism is eerily reminiscent of the content neutrality so beloved by civil libertarians--and that elective affinity should not be surprising, given the paradox of tolerance. As Ishay Landa has argued, "Far from being the antithesis of fascism, its absolute Other, the liberal order significantly contributed to fascism." An unbounded public sphere, where any lie or fantasy can be spread at will, is an open invitation to an extremist takeover. A political party actually committed to solving real problems will have to tell hard truths, and will likely suffer internal divisions and popular discontent over them. By contrast, a convenient and attractive Big Lie can be a terrifyingly effective rallying point. Deterring its spread is a proper function of a well-functioning democratic polity.
We can no longer afford the indifference to truth that has become a hallmark of free-speech-absolutist ideology. As Snyder argues, "post-truth is pre-fascism." The Capitol riot was a watershed, revealing to the nation trends that had worried experts for years. Some involved in it yelled “Hang Mike Pence” as they rushed into the building; others had zip ties reminiscent of the plot to kidnap Michigan Gov. Gretchen Whitmer (against whom the President had also helped foment stochastic terror with, among other things, his "LIBERATE MICHIGAN" tweet.) A large number of participants were clad in the equipment and uniforms of militants. No one has a legal or moral obligation to maintain the communicative processes that led to such disorder and menace.
As David Golumbia has recently argued, “It is manifestly possible to protect free speech — and thus enhance the political and democratic values free speech is meant to promote — while not actively encouraging the efforts of those who want to turn democracies against themselves.” The past few days’ work by tech firms is a big (if belated) step forward. In the long run, restoring the fairness doctrine and revisiting Section 230 of the CDA is essential, too. If we do not move aggressively to protect our democracy from lies, conspiracy theories, extremism, and threats of violence, we will lose it.