Trump v. Twitter, Part 1: How Social Media Censorship Abuses Federal Law

This is the first in a three part series explaining legal and constitutional issues in former President Donald Trump’s lawsuit against Twitter.

This installment focuses on how social media censorship abuses federal law.Trump’s lawsuit, filed on July 7, 2021, alleges that Twitter abridged Trump’s First Amendment free speech rights by censoring his tweets and canceling his account.

Joining the lawsuit is another individual plaintiff canceled by Twitter, as well as the American Conservative Union, which alleges that Twitter has shadow banned it.

The plaintiffs ask the court to permit them to represent a class of all individuals whom Twitter has banned improperly. They seek damages and reinstatement of their accounts.

They further seek a ruling that Section 230 of the Communications Decency Act (U.S. Code, title 47, Section 230) (pdf) is unconstitutional. Section 230 immunizes Twitter from liability for censoring certain kinds of content.

One hurdle the lawsuit must overcome is that judges do not declare statutes to be unconstitutional if there’s a way to avoid doing so. This is especially true in the era of the Roberts Supreme Court, which is highly deferential to Congress.

So although there’s nothing wrong with asking a judge to declare a dubious law unconstitutional, it’s wise to offer a less dramatic option as well.

In this case, the plaintiffs should contend that even if Section 230 is constitutional, it doesn’t authorize Twitter’s political censorship.Section 230 Immunity, In Plain English

If a person makes a defamatory statement in a newspaper, on the radio, or other traditional medium, the medium (as well as the speaker) may be liable for damages.

For example, if The Epoch Times publishes a defamatory letter-to-the-editor about Mary Smith (which, of course, The Epoch Times would never do), then Smith usually can recover from The Epoch Times as well as from the author of the letter.

If The Epoch Times has to pay, it can seek compensation from the author.But Section 230 gives social media companies unique protection.

Section 230 says in part:“No provider … of an interactive computer service [such as Facebook, YouTube, or Twitter] shall be treated as the publisher or speaker of any information provided by another information content provider.”

So if I write on Twitter a statement about Mary Smith that is false and harmful, Smith may be able to collect damages from me—but not from Twitter. Lawyers say that the social media company is “immune from liability.”This immunity makes sense only if the social media platform functions as a town square (pdf) or hired hall.

Everyone understands that, absent special circumstances, the town is not responsible for what someone says in the square, and neither is the owner who rents out his hall liable for what might be said there.

On the other hand, if the social media platform selects or edits content as a newspaper or magazine does, then immunity is less defensible.

Yet, Section 230 does allow social media companies to censor certain kinds of material. 

I’ll explain why in a moment, but first let’s look at that part of the law:

No provider …  of an interactive computer service shall be held liable on account of … any action voluntarily taken in good faith to restrict access to or availability of material that the provider …  considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected …. [Emphasis added.]

Social media companies claim their power to censor political comments is based on their right to censor material that is “otherwise objectionable.”

Trump claims this is unconstitutional because (1) Congress may not ban constitutionally protected speech and therefore (2) Congress may not delegate that power to social media companies.

But before a court accepts that argument, it will try to interpret the law in a way that renders it constitutional. In this case, that’s easy to do. The truth is that “otherwise objectionable” really doesn’t mean “anything the social media company doesn’t like.” The term is much narrower than that.

There’s a standard principle for construing legal documents known by the Latin phrase ejusdem generis (classical pronunciation: e-YOOS-dem GHEN-air-iss). It means “of the same kind”—or, more loosely, “Birds of a feather flock together.”

Ejusdem generis tells us that if you have a list of items followed by a catchall phrase, then you should interpret the catchall phrase to include only items similar to those listed. Suppose, for example, your spouse sends you to the market to buy “carrots, spinach, lettuce, and other vegetables.” Does the catchall phrase “other vegetables” include a Christmas tree?

You might argue that a Christmas tree is a vegetable because it’s classified as such in the game Twenty Questions (“Animal, vegetable, or mineral?”). That’s cute, but no cigar. The specific items before the catchall phrase tell you that “other vegetables” means edibles like cabbage or radishes. It doesn’t include a tree.

So you’ll have to take the consequences from your spouse for not intuitively understanding the ejusdem generis rule.

Now, let’s go back to Section 230 and look at the list of censorable material: (1) obscene, (2) lewd, (3) lascivious, (4) filthy, (5) excessively violent, (6) harassing, and (7) otherwise objectionable.

One appeals court has pointed out (pdf) that items (1) through (6) cover a lot of ground. They tell us that the catchall includes bullying, pornography, threats, extortion, and vulgar Anglo-Saxonisms. But they also tell us what is not in the “otherwise offensive” catchall. For example, the same appeals court ruled that the catchall did not justify a social media company censoring merely to hurt a business competitor. I think it’s equally clear that ordinary political discussion does not qualify as “objectionable” under the statute.

At the beginning of Section 230, Congress included explanatory material (recitals) telling us how to interpret it. The recitals further clarify that “otherwise objectionable” does not refer to ordinary political disagreements. Pay particular attention to the words I’ve italicized:

The Congress finds the following:

(2) These [Internet] services offer users a great degree of control over the information that they receive, as well as the potential for even greater control in the future as technology develops.

(3) The Internet and other interactive computer services offer a forum for a true diversity of political discourse 

(5) Increasingly Americans are relying on interactive media for a variety of political, educational, cultural, and entertainment services.

It is the policy of the United States … to encourage the development of technologies which maximize user control over what information is received …

These recitals inform us that Congress enacted Section 230 to increase the “variety” and “diversity” of political discourse, not to constrict it. They also inform us that Section 230 is designed to expand user control, not provider control.

Why Section 230 Included Power to Censor

But when a child accesses the internet, who is the “user” to whom Section 230 gives “control”? In the eyes of the law, parents are the natural guardians of their children and, therefore, the child’s parents are the “users.” So if Congress wished to empower “users” then Section 230 should empower parents. And sure enough, here’s another recital in the statute:

(4) to remove disincentives for the development and utilization of blocking and filtering technologies that empower parents to restrict their children’s access to objectionable or inappropriate online material ….

In other words, social media’s immunity for censorship was bestowed to help parents protect their children. And the only reason social media can block some constitutionally protected material is because some constitutionally protected material—soft porn, for example—is unsuitable for children.

In sum: Social media’s power to censor must be exercised only to empower parents in protecting their children. It’s akin to a duty of trust. It’s not a license for a company’s civic ignoramuses to impose their political prejudices on the rest of us.

Next installment: How can Twitter violate the First Amendment?

Source: Trump v. Twitter, Part 1: How Social Media Censorship Abuses Federal Law

The Infrastructure Bill Is the Royal Road to Communism

So who are the 18? This time, as opposed to my previous article, they must be named because—enough is enough—the job of our legislators is to represent the views of his or her constituents. I would be willing to bet my house that in no more than one or two of these instances, at best, is this even remotely the case.This isn’t always true. In some situations, most would agree, a person should indeed vote his or her conscience that might, temporarily at least, go against his constituents. But to say this kludge of a bill being rammed down the country’s throat—and, yes, I would like to see infrastructure improvement, as would most people—is such a situation is laughable.Some on the list, like Burr, are thankfully about to retire, but many are not.

For them, come primary time, you know what to do.

Roy Blunt of Missouri

Richard Burr of North Carolina

Shelley Moore Capito of West Virginia

Bill Cassidy of Louisiana

Susan Collins of Maine

Kevin Cramer of North Dakota

Mike Crapo of Idaho

Lindsey Graham of South Carolina

Chuck Grassley of Iowa

John Hoeven of North Dakota

Mitch McConnell of Kentucky

Lisa Murkowski of Alaska

Rob Portman of Ohio

Jim Risch of Idaho

Mitt Romney of Utah

Thom Tillis of North Carolina

Todd Young of Indiana

Source: The Infrastructure Bill Is the Royal Road to Communism

Murkowski, Romney, McConnell and Portman are no surprise. Murkowski of Alaska always votes with the Democrats. Nothing new there. She’s in the wrong party. It’s usually her and Susan Collins together that side with the Dems. I am a bit surprised that Senators Graham and Grassley would fall for it. They’re usually at least a little politically savvy. McConnell throwing some weight around there?

Quit Complaining About Twitter and Quit Already

 

political commentator Dave Rubin of “The Rubin Report” has been locked out of Twitter for writing something that is at the very least arguably true—that there are serious questions about the COVID-19 vaccines—is among the most unsurprising news of the day.It’s what Twitter does on a regular basis—censors opinions it doesn’t agree with from sources high (the 45th President of the United States) and low (just about anybody).Rubin’s supposed malfeasance was to write the following, which was deleted: “They want a federal vaccine mandate for vaccines which are clearly not working as promised just weeks ago. People are getting and transmitting Covid despite vax. Plus now they’re prepping us for booster shots. A sane society would take a pause. We do not live in a sane society.”I would agree, but that’s not the point. The point is Twitter’s behavior.Who can forget its banning of the NYPost’s fact-based report on Hunter Biden’s laptop? Twitter chief Jack Dorsey later apologized, but by then it was irrelevant. The electoral damage was done and the world had moved on. How convenient.Meanwhile, legions of Little Dorseys, using who knows what algorithms and key words, form a phalanx of latter-day Blockleiters (block wardens) supervising what can or cannot be said in an often mercurial manner.And yet, with all this, another legion, maybe even a majority, of leading conservative and libertarian politicians and journalists, comply with this regime in the hopes their voices will be heard.This is weirdly similar to life under communism or other totalitarian regimes like Iran where people bent or bend over backwards, contorting or disguising their ideas, in order to get them past the censors to an oppressed audience. (Apropos Iran, Donald Trump is banned on Twitter, while Ayatollah Khamenei is not.)

Source: Quit Complaining About Twitter and Quit Already

Biden DOJ Launches 3rd Probe Against Police for Actions Against Left-Wing Protesters… aka Rioters, As DOJ Persecutes Jan. 6 Defendants With Unconstitutional Treatment and Conditions In Jail Far Worse than Islamic Terrorists

contact Matt Gaetz, Majorie Taylor Greene and Louis Gohmert. Find out where they are with their investigation. See what we can do to help.

Evans News Report

On Thursday,Attorney General Merrick Garlandannouncedthat theJustice Department was opening a probe into the Phoenix Police Department for suspected violations, including retaliatory activity against protesters who engage in “protected, expressive activities,” “excessive force,” and mistreament of “people with disabilities.” This is the Department of Justice’s third investigation into police units across the country for an alleged “pattern or practice” of civil rights violations.

Meanwhile, the Justice Department that is leading the prosecution of over 550 defendants over the Capitol Breach hasn’t said a word about the reported abuse of many individuals in pretrial detainment, whose maltreatment appears to describe the civil rights violations Attorney General Garland refers to in his announcement.

“Our investigation in Phoenix will be led by the Justice Department’s Civil Rights Division,” AG Garland said. “It is based on the division’s extensive review of publicly available information and it will consider several issues.”

“First, whether the…

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September can’t come soon enough(politics aside) Can you pitch in this month?

You can be sure i’ll be watching the election in California on Sept 14th. i believe that’s when they’ll begin the ballot counting out there. Please if this needs corrected and you’re from California let me know. Here is the information i do have:

When is the recall election?

Sept. 14, though local election offices must start sending out mail ballots by Aug. 16.

How do you vote? 

Every registered voter will get a ballot in the mail. You can track your ballot — when it is mailed, when it’s received once you vote and when it’s counted — by signing up here.

There will also be in-person polling sites that  open Sept. 4, plus drop-off boxes, with the exact number depending where you live. You can check your registration status here and can update your registration here. The deadline to register is Aug. 30.   

When is the recall election?

Sept. 14, though local election offices must start sending out mail ballots by Aug. 16.

How do you vote?

Every registered voter will get a ballot in the mail. You can track your ballot — when it is mailed, when it’s received once you vote and when it’s counted — by signing up here.

There will also be in-person polling sites that open Sept. 4, plus drop-off boxes, with the exact number depending where you live. You can check your registration status here and can update your registration here. The deadline to register is Aug. 30.

  

Before you vote for the candidate of your choice-such as Larry Elder-be sure you vote to recall Newsome or the vote for Elder won’t matter. You must do both.

Call your friends-Mark your calendar!

#RecallNewsome #ElectElder #SaveAmerica #MakeCaliGoldenAgain

How about a 10-10-10 plan in Cali? Kind of like Herman Cain’s 999 plan. Remember that?

You get 10 of your friends, family or coworkers to consider voting for Larry Elder. You call 10 people to remind them to vote-if they need a ride how about offering them a ride? Send 10.00 into the Elder campaign if you can. At least 5.00 if you can’t. If you really can’t donate at all,you can always knock on 10 doors or make 10 calls.

This is YOUR chance to save the great state of California and what happens there is going to have a profound affect on the rest of the country. It matters. In fact, i’m convinced this California election is just as important to the country as the 2022 and 24 elections are going to be. No kidding!!

Be sure to check out my MAGA CANDIDATES page. The link is in the menu bar at the top. Share-i’d greatly appreciate it.

Meantime, as i await the Cali election so i can anxiously nail bite that day, life rolls on in our household . Over here on the east side of the country.

I’m getting a knee xray on Tues. i was supposed to have a spine xray months ago but my husband’s heart problem came up followed by the Covid pandemic. The knee problem came up about 3 weeks ago and it can’t be ignored.I’m hobbling around with a walker in excruciating pain and have no clue what i did to it.

The spine x-ray can wait-this can’t. It’s wrecked my life; other than the blog and reading America Marxism which is about all i can do. I’ve tried the prescription my pcp recommended. Nope. No help. Ibuprofen. Ran out. Down to aspirin and Aspercreme with lidocaine spray. Tamped it down some but not enough to be able to get around without the walker. The Doctor said it’s a tendon but we won’t know what’s going on until the x-ray results come back.

The husband is looking at me with his problem and an OTC he needs. I can’t say what the otc is for (protecting his privacy)other than i get his point. He desperately needs it but miracles are not my department. Sometimes he thinks i run that department.

It’s like an omen in August. Every year we get hundreds of these pesky little gnats. I think they are fruit flies. Something in this neck of the woods attract them. I’m going to take a guess and say the vineyards?

We’ve tried every home remedy to no avail. What else could go wrong here?

Two appliances. I had the money for a new dishwasher, but the dryer also bit the dust. I was talked into buying a used dryer and gave up the dishwasher. That dryer is now unhooked and sitting in the basement-while the dryer we had prior is at least running and is hooked back up. So now i have a dryer i can’t use and a dishwasher i can’t get.

Frustrated. I told hubbs i put up a donate button and am hopeful we can reach the goal i set in short order. It would take care of everything. It might not fix my knee but it would definitely get another bottle of ibuprofen and my husband’s otc product, Bug Spray and reimburse the loss on the dryer.

My bad decision cost us. Honestly though the issue started back when we had to go to Cleveland. We just haven’t been able to dig our way back out since. I’m not one to ask anyone for anything. Never have been, never will be.

If we were back in my old hometown i’d have drummed up a computer job by now. Up here we’re very isolated and know maybe 2 people total.One is the landlord and the other is my husband’s health aide. They’re off the table. PERIOD. i’m in the predicament of having to rely on a pay pal button at an obscure little blog with a small audience compared to some of the bigger, better, blogger teams.

Anyway, that’s the story in Cali where i’m praying ELDER kills it and here on the home front. Just one senior Trump supporter who seems to be falling apart limb by limb, asking for a little help. If we can get through this month we’ll be ok in Sept. Plus, It will buy me time to save up for the pro blog payment before it comes due this time. A win-win.