The First Amendment is under siege – and most Americans know it
Social media moved from offering a "public forum" (with concurrent legal duties, including openness) to a "content editor" (typically imposing higher liability, such as for defamation), then into the unseemly, otherworldly role of kingmaker, says former Naval Intelligence Officer
December 23, 2020
First, digital conversations on "matters of public concern," legally the centerpiece of First Amendment jurisprudence, were consistently blocked by partisan social media operators throughout the 2020 election cycle. That alone is arresting; it has changed public access to information and calls for action.
Social media moved from offering a "public forum" (with concurrent legal duties, including openness) to a "content editor" (typically imposing higher liability, such as for defamation), then into the unseemly, otherworldly role of kingmaker. By appearances, they know exactly what they are doing – no apologies.
Second, critical information – official, damning, highly material, and verifiably accurate information concerning Joe Biden's son, apparently under investigation for months, was blocked by these social media giants, potentially affecting the election. The nub is that this information not only reflected poorly on the Democrat presidential candidate – now president-elect – but implicated him.
Only after the election did we learn that data blocked could be objectively disqualifying. If members of Joe Biden's family, close for years, are under investigation for trading access for money, who is the "him" guilty of offering access? It takes to two to tango, as they say – and Joe Biden is one of the two.
All this becomes even more insidious, objectionable, and arguably unconstitutional – when explicit and implied financial assistance, political advocacy, and campaign-tipping support is aligned with the Democrat Party.
In effect, political actors – soon running the federal government – have been assisted in shutting out the truth, in order to acquire power – and this power, in turn, serves the personal, financial and political agenda of those who control the social media giants.
The time has come to separate mass power over information and the Democrat party. More, the time has come to open these social media giants to antitrust actions, public and private, and end the now-absurd notion that they should be immune from civil lawsuits – because they must be nurtured.
They have been effectively nurtured into monster-hood, a societal overlord position that allows dominance, controls critical information, shuts off information flow essential to a free, open, and properly informed republic.
What power do these players have? Beyond the ability to distort public dialogue on "matters of public concern" – including blocking a December AMAC podcast discussing election lawsuits – these giants have become sources of mass dependence.
Thus, by way of example, on Monday, December 14th, social media users around the globe personally and professionally suffered the impact of a mass access outage, shutting off access to dialogue, but also to mass databases. That downtime impacted everything from business communications, internet website accessibility, data access, and distance learning – shutting schools.
The outage also illustrated how much dependence has arisen – on these information-controlling outlets. Paired with political manipulation, the outage raises serious questions about the role, responsibility, and regulation of these huge, largely uncontrolled social media and high-tech companies.
In a nutshell, the time has come to open these oligopolistic companies to civil liability – beginning with a repeal of section 230 of the Communications Decency Act, then aggressively regulate, deconstruct, break up, reduce the influence of and de-politicize (and hold accountable) these digital behemoths.
Theodore Roosevelt – famously patriotic, pro-commerce, and pro-free enterprise – was among the first to call out the abuse of power by monopolies and oligopolies, and to push not only the Sherman and Clayton Antitrust Acts, but also to come down hard on the abusers of public trust – in the marketplace and the marketplace of ideas.
His example is a shining one – and should make these big social media and data-manipulating giants shiver. The influence of big tech on America – our social harmony, mental health, basic human interactions, decision-making, political stability, institutional and political accountability, commerce, and contentment – in short, their manipulation of the public mind – is working at cross-purposes with democracy.
It has become a threat to the free flow of information vital for sustaining a free republic, not only teaming with powerful political actors (including socialist ideologues and promotors of leftist violence), but undermining the currency of any democracy, the guarantee of citizen free speech.
So, looking back on history, the most heinous deprivations of individual liberty – including impairment of the God-given freedoms of worship, assembly, travel, protest, self-defense, confronting accusers, fair trial, no false imprisonment, harm to life or limb, fear of government – all begin with loss of free speech.
That is why the outrage of the moment – is a talisman of our future. If Americans will see and speak truth, enact laws that protect political, personal, and professional free speech – rather than empowering oppressors of free speech – we can rise above this. If we do not act, we will wish we had. The First Amendment is under siege – and most Americans know it. We do not need more political violence. We need free speech, and protection of it. The time – if there ever was one – is now, to say so.
Robert Charles is a former assistant secretary of state for President George W. Bush, former naval intelligence officer and litigator. He served in the Reagan and Bush 41 White Houses, as congressional counsel for five years, and wrote "Narcotics and Terrorism" (2003) and "Eagles and Evergreens" (2018), the latter on WWII vets in a Maine town.
The 2.3 million member Association of Mature American Citizens [AMAC] http://www.amac.us is a vibrant, vital senior advocacy organization that takes its marching orders from its members. AMAC Action is a non-profit, non-partisan organization representing the membership in our nation's capital and in local Congressional Districts throughout the country.