BE CAREFUL WHAT YOU WISH FOR, MR. PRESIDENT

       

This week, our president went on another one of his nutjob twitter rampages. While the country mourned reaching 100,000 covid deaths, Trump was occupied spreading baseless conspiracy allegations on his twitter feed. In particular, he accused ""Morning Joe" Scarborough, an MSNBC Trump critic, of murdering a woman twenty years ago. She had been employed in then-congressman Scarborough's Florida office. Suffering from heart arrhythmia, she passed out, hit her head on the corner of a desk as she fell, and died. Her cause of death was certified by the coroner. The incident occurred while Scarborough was 800 miles away in his D.C. office.

 When the former Republican congressman started to criticize his friend Trump on the air, the president began to tweet about an alleged "cold case'' involving Scarborough's involvement in the woman's death! 

There is zero evidence to support that conspiracy claim. Ignoring a plea by the widower to desist and let his wife rest in peace, both Trump and Twitter rejected his request to take down the offending tweets.

At the same time, Trump tweeted false statements about mail-in ballots, and Twitter tagged them with a fact-check link that set out the truth on that issue. A first for any of the social media.

Trump was outraged, and signed an Executive Order requiring the FTC and the FCC to monitor internet sites. Where they found what they considered bias, they were to take steps to curtail the content of the site by limiting its immunity under Section 230 of the  Communications Decency Act.

What's that about?

There are only two industries in the United States that have won congressional grants of immunity for tortious conduct: gun manufacturers and some internet sites. Gun manufacturers are immune from liability claims that their products are defective by reason of their design, and internet sites are immune from libel and other tort claims when they publish defamatory lies, (or other actionable material posted by their subscribers,) no matter how harmful the posts may be.

Section 230 provides as follows:

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

I have always been bothered by this law. It reeks of successful lobbying efforts by Silicon Valley tycoons.

The effects are thus: If the NY Times, or Fox News, publishes an op ed saying that you are a murderer, or a Russian spy, you can sue the paper or the network for libel, assuming the statement is false. In other words, newspapers and tv networks are responsible for what they publish. When I wrote a book, I had to assure and indemnify the publisher that it did not libel anybody, because the publishing company would be liable for publishing tortious content.  

But if I were to tweet the same defamatory material, or post it on Facebook or Instagram, I would need to make no such assurance, because the site is immune from liability. Pursuant to Section 230, it is not the "publisher" of the offensive material.  This is true if the content is tortious, (i.e., libel, slander, etc.) or if it is deemed to be incitement to violence (e.g., encouraging readers to bring guns and baseball bats to a public demonstration,) etc.

Empty barrels make the most noise, and Trump is the living proof of that maxim.  His Executive Order reducing the scope of Section 230 immunity is a hollow decree because:

i) Trump cannot change Section 230 without congressional approval,

ii) A direction to a government agency to monitor the content of a publication, and take action depending upon the government agency's view of that content, is a blatant violation of the First Amendment. Though it is reliably reported that our president cannot, or at least does not, read, surely he can master the words, "make no law abridging the freedom of speech." Even the current Trump Supreme Court would not give their master a pass on this one.

iii) In the remote chance Congress did revoke Section 230, Twitter, Facebook, et al, would become liable for all Trump's lies that led to civil (or criminal) liability. For example, Joe Scarborough probably has a viable cause of action against Trump for the murder accusation, but Scarborough has no cause of action against Twitter for the publication of the defamation because of Section 230.  Take away that protection, and Twitter obviously is going to refuse to take the risk of continuing to publish much of Trump's rubbish.

Quite possibly, Trump never heard of the Alien & Sedition Acts of 1798. Federalist President John Adams was so bothered by the Jeffersonian attacks on his presidency, Adams persuaded the Federalist majority in Congress to pass a law making it a crime to publish "false, scandalous, and malicious" information about the government. The Act also made it illegal to "conspire to oppose" any government measure.

Several states passed bills saying the Act was unconstitutional, and they  declared it to be not binding on its citizens.

Adams nevertheless prosecuted a number of publishers, several of whom were convicted and jailed. One of those was a Jeffersonian Congressman whose constituents were so enraged, they re-elected him while he was in prison. Historians credit the general outrage over the Sedition Act as a principal reason for Jefferson's victory over Adams in the next election. The result: John Adams has the distinction of becoming our first one-term president.

Now it's Trump's turn.

A bientot.

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As my regular readers know, there is no fixed schedule for these posts. If you want a notice of each new posting, send me an email and I will add you to the notice list.  mlondon34@gmail.com

Trump employed bellicosity before Twitter. An example of his unsuccessful use of the NY Post to intimidate my client  is set out in my memoir, "The Client Decides," (available on Kindle and on Amazon. )  We beat him and he paid our legal bill!