TWITTER SAVES TWITTER BY TRUMPING TRUMP

Let's start with a hypothetical :

Three guys rob a federal bank.  A and B sit in the car outside the bank while C goes inside and loiters. When A decides the coast is clear outside the bank, he sends B into the bank to inform C that "Now is the time to rob the bank. Hurry. A is waiting at the curb with the getaway car." C then threatens a teller with his pistol, gets the cash, then B and C run to the curb, get into A's car, and they drive away . 

You don't have to go to law school to know that all three knuckleheads are guilty of bank robbery. And if, in the course of the hold-up, C shoots and kills the teller, then all three knuckleheads are guilty of murder.

Now let's tweak the hypothetical. We'll get rid of B.  We do not need a human messenger. Instead, A, sitting in the car outside the bank, sends a tweet to C that reads "Now is the time to rob the bank. Hurry. I'm waiting at the curb with the getaway car." Twitter's algorithm catches the tweet, a twitter monitor sees it and ignores it.

OK, students, answer the following question correctly and you win a JD degree from the Sidney Powell Law School:

Question: In hypothetical number two, is Twitter criminally responsible for the bank robbery, or in the event, felony-murder? Explain.

If you answered “No," don't bother to explain, you have failed the test. (But you can get a degree from the Sidney Powell Law school anyway. Just send them a postcard.)

But, you say, what about section 230 of the Communications Act which immunizes Twitter and other "interactive computer services" from being treated as the publisher of messages on their services? Doesn't that protect Twitter, Facebook, and other social media channels from liability on account of all messages posted by their members?

NO.

Sure, they get away with publishing libel and slander, and abuses of state privacy laws, etc., (an immunity that, IMHO they do not now, if they ever did, deserve) but the statute excludes immunity from federal laws involving obscenity, sexual exploitation of children, "or any other Federal criminal statute."

Therefore, Twitter, Facebook et. al. could possibly be held criminally liable if they published information that is an element of a conspiracy to effect seditious invasion of the Capitol.

Of course, you have already read about this section 230 non-immunity issue in the press, right? What, you didn't see it? Yeah, me neither.

Is what the President said, (or did not say) before, during, and after the insurrection, on broadcast television and Twitter, an element of a criminal conspiracy to commit sedition? I think it is. Congress thinks it is. Now it's up to the Senate to say what they think, or at least vote yes or no on the question, whatever they really think.

But even aside from the legal question, did Twitter have a moral obligation to cut off its participation in what looked to be an appeal to violent insurrection? Only Republicans who worry about their personal election prospects could answer that question "No."

Finally, what about the First Amendment Issues. We already see objections by the ACLU, and a cohort of academicians wrapping themselves in the flag of the First Amendment, decrying the Twitter decision to ban Trump from its service.

I have before railed, (here and in a NYTimes op-ed), about First Amendment Fundamentalists, who know, but choose to ignore, that the Amendment has nothing whatever to do with the Twitter question. The Amendment relates only to things that "Congress" (i.e. the government) can and cannot do with respect to speech. Every individual has a right to decide whether and what to publish or not publish--and live with the consequences.

Were Trump's remarks, taken in context, "directed to inciting imminent lawless action and likely to incite or produce such action?" I think “yes,” others may disagree, but right now the Senate may find the answer to that question helpful in reaching its verdict. And, one hopes, possibly a petit jury after that.

A bientot.

.............................

There is no fixed schedule for these posts. If you would like to receive a notice of each new posting, 

please fill out the form at

 <"http://eepurl.com/gf7fS9">.