"FREE SPEECH" IS A MISNOMER

The media, (and my inbox) is chockablock full of discussions about whether indicting Trump or his acolytes is a politically wise thing to do, even assuming their guilt. 

Tribal warfare is at its peak. Even the obviously justified search of Trump's residence at Mara-a-Lago, (and I predict tomorrow's redacted affidavit will dramatically strengthen the public's perception of the soundness of the DOJ decision to seek the warrant) brought forth a rash of  political outrage, marked by social media threats of violence against government officials, including the men and women of the FBI.

And the outrage was shouted from the hill tops even though the DOJ sought the warrant only after the failure of extensive non-confrontational efforts to recover all the documents Trump stole. These non-invasive methods included i) discussions with the Trump team, ii) subpoenas (accepted by Trump), and iii) Trump lawyers' submission of assurances that all classified material had been returned to the government. (Those assurances turned out be be false.)

Ultimately the execution of the probable cause warrant signed by a judge has already revealed Trump's unquestioned guilt of stealing government records, obstructing government efforts to repossess those documents, etc.

Nevertheless, death threats against the FBI flooded social media, along with threats against the Attorney General and other government officials.  

Threatening to kill government personnel is hardly unique these days. It would appear that the cultural shift brought on by the prevalence of social media has encouraged the worms to come out from under their rocks. As a result, death threats have become everyday events.

The objects of these threats are all manner of people, from congressional leaders to vaccine supporters, from election workers to IRS clerks.  If you are a macho moron and either own an AR 15 or masturbate about the idea of owning one, then apparently you are now free to threaten the death of anyone you don't like this week.

And a federal statute supplies the gunpowder.

So we read of the arrest last week of one 46-yr.-old Adam Bies, of Mercer, Pennsylvania. Posting on the social media channel "Gab Social" under the user name "BlankFocus,'' Bies posted such items as, "If you work for the FBI, you deserve to die," and, referring to FBI agents, "My only goal is to kill more of them before I drop," and "HEY FEDS. We the people cannot wait to water the trees of liberty with your blood. I'll be waiting for you to kick down my door."

Happily,  Bies does not have to wait anymore. The FBI has taken him into custody, and charged him with threatening federal officials. He faces up to 10 years in jail.

But apparently, no charges have been brought against Gab, the social media conduit through which flowed the criminal threats. Why not?

Who or what is Gab Social? Wikipedia reports that Gab describes itself as "a social network that champions free-speech, unchecked liberty, the free flow of information online, and Christian values." 

Wikipedia also reports that Gab is "widely described as a haven for neo-Nazis, racists, white supremacists, white nationalists, antisemites, and alt-right supporters of Donald Trump." 

As to anti-semitism, Wikipedia reports that Gab posts were used in plotting the 2018 Pittsburgh synagogue massacre. Prominent among posts on its site was the one that read "Jews should be raised as livestock" in which the writer said he intended to destroy a "holohoax memorial."

With respect to the January 6 insurrection riot, Gab carried posts advising rioters which streets to use to escape from police, which tools to use to pry open the doors of the Capitol, and recommending carrying firearms into that building.

I mention the foregoing very brief  description of Gab (there are pages of this stuff on Wikipedia) so that it is clear that Bies's threats against the FBI published on Gab were hardly a "one-off." There is no question but that Gab knowingly published the criminal threats, and while author Bies faces 10 years in prison, his Gab publisher goes free--so far. 

How can that be? If Fox, NBC, or any other radio or TV network published criminal threats against the FBI, it surely would be indicted.  Why wasn't Gab? 

The federal criminal statute seems clear enough:

18 USC 875 (c) 

"Whoever transmits in interstate ... any communication containing… any threat to injure the person of another, shall be… imprisoned for not more than five years… "

But another federal statute plays a large role in facilitating hateful rage. Section 230 of the absurdly titled Communications Decency Act – has become the fertile ground for the development of the personal threats, tribal warfare, and conspiracy misinformation that threatens to overwhelm our democracy.

47 US Code, Section 230  reads, in part:

" (c) (1) No provider of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider."

In other words, apps like Gab, Twitter, Facebook, etc are treated by federal law as the equivalent of sacred community bulletin boards, and are immune from the civil liability that can be imposed upon those who post actionable material on the board. The statute immunizes only the owner of the bulletin board, not the person who posts the offending message on the board.

But the statute also reads (in Section (e): 

"Nothing in this section shall be construed to impair the enforcement of…any… Federal Criminal Statute."

So, if a "content provider" [Bies] uses the "interactive computer service" [Gab] to make threats that violate federal criminal  law, why are not both publishers indicted? Has the DOJ run out of lawyers, or is Merrick Garland being ultra-careful in poking at more hornets' nests?  Bies belongs in jail, and so does the owner of Gab! 

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As to the civil law, it's the statute itself that makes no sense. For example, Fox (not an "interactive computer service") can be, and is, properly enough, being sued for billions for publishing libelous conspiracy statements about vote-counting machines. But Gab would get a free ride to publish the same false statements posted by a content provider, because the statute says Gab is not considered the "publisher" of the libel.  (I.e., Gab is the statute-immunized "bulletin board" of the statements made by those who post libelous messages on its board!)

Can anybody make sense of that? I can't. People injured by social media statements should have the right to pursue the authors and publishers of those injurious false statements. 

Another example:

When Alex Jones said, on the radio, that nobody was killed in the Sandy Hook school shooting, and it was all an "act," he got tagged in a libel suit for millions in damages by Sandy Hook parents whose children were murdered. It was not only what Jones said that got him caught, it was where he said it--on the radio. Had Jones been running a bulletin board app like Twitter or Gab, and published the very same words, which had been posted by one of his users, Jones would have been immune from liability!

Is that ridiculous, or what?

The result?

As long as we have Section 230, boards like Gab (and there are many of them) are free to encourage their consumers to invent a "handle" and populate the metaverse with conspiracy lies and borderline threats that feed division and hate.

This much is not debatable: when the Founders added the First Amendment, they did not intend to immunize libel or threats from either civil or criminal liability. 

Words have meaning. They have the power to injure and to kill. 

Section 230 was enacted 26 years ago to spur growth of the infant technology called "the internet." Whether it was then a wise piece of legislation is now irrelevant. What is important today is that it has morphed into a nightmare weapon used by some to generate the hate and misinformation that threatens the viability of our political system. 

And please permit the repetition: Section 230 had no more Constitutional basis when it was enacted in 1996 than it does now.  

"Out, out, damned spot!"

A bientôt.

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