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The federal law is clear that social media companies generally cannot be held liable for the speech that is posted on their platforms. Despite this, New York Attorney General Letitia James (D), at the urging of N.Y. Gov. Kathy Hochul (D), has launched an investigation of the role of social media companies in the tragic mass shooting in Buffalo, which 13 people were shot, 10 of them killed.

The alleged shooter used social media platforms, such as Twitch, 4chan, and Discord, to plot and livestream the mass shooting, according to federal law enforcement sources. The investigation is intended to look into the role of these companies and other online resources and platforms that the alleged shooter used to express White supremacist views and his desire for violence.

It is not clear what James or Hochul hope will come from the investigation. The clear implication is that the social media platforms share the blame for the tragic shooting. There are calls to do more to prevent social media from being used to disseminate hate speech.

There is nothing objectionable about asking social media companies to do a better job of excluding speech that is awful but lawful, such as expressions of hate and White supremacy. The internet is full of vile and hateful material. It would be a better world if no one had these views or expressed them.

But the government cannot force platforms to moderate lawful speech. Social media companies are private entities andunlike the governmentthey do not have to comply with the First Amendment. They get to decide what content to include on their sites and what to exclude.

Although there are some limited areassuch as incitement of illegal activity or true threatswhere speech is not constitutionally protected and the government can forbid dissemination, the U.S. Supreme Court has consistently held that hate speech is protected by the First Amendment.

The alleged shooters statements of intent arent incitement under current law. Incitement requires that he intend to incite imminent unlawful action in others and be likely to so incite (Brandenburg v. Ohio (1969)). Some of his posted statements might satisfy the New York statute prohibiting terroristic threats (N.Y. Pen. Code 490.20). But even if it did, its not clear it meets the constitutional test for a true threat.

The alleged shooters statements of intent arent incitement under current law. The Supreme Court has held incitement requires that the speaker intend to incite imminent unlawful action in others and be likely to so incite. Some of his posted statements might satisfy the NY statute prohibiting terroristic threats, N.Y. Penal Code 490.20. But even if it did, its not clear it meets the constitutional test for a true threat or falls within any other category of unprotected speech.

The government cannot punish hateful messages or platforms that are used to disseminate them. It would violate the First Amendment to hold the social media companies liable because the Buffalo shooter used them to express a message.

Moreover, a federal statute, 47 U.S.C. 230, is explicit that social media companies cannot be held liable, with narrow exceptions, for what is posted on their platforms. The law expressly preempts state laws that impose liability for such posts.

In fact, in part because this federal statute immunizes platforms for content moderation decisions they make, social media companies already do an enormous amount of content moderation. For example, from October to December 2021, Facebook, now known as Meta Platforms, says it took action against terrorism content 7.7 million times, bullying and harassment 8.2 million times, and child sexual exploitation material 19.8 million times.

And, when the alleged shooter attempted to livestream an act of mass murder, Twitch was able to remove the video and suspend his account in less than two minutes. Unfortunately, as with the shootings in Christchurch, New Zealand, recordings remain online.

Moderation of this speech is necessary for the internet to be usable for most people, and platforms know it. The enormous amount of content moderation performed by platforms such as Facebook demonstrate that social pressure and market factors can encourage conscientious content moderation without unconstitutional government pressure.

But it also must be remembered that content moderation occurs at so enormous a scale that it is impossible for platforms to get it right 100% of the time. It is completely acceptable to ask social media platforms to do better.

Attorney General James, of course, is free to conduct an inquiry into the role social media played in the Buffalo shooting. But, if the investigation concludes that too much or too little content moderation occurred, New York cannot force platforms to change their moderation practices because those practices are protected by the First Amendment and immunized by Section 230.

The best we can hope for is that social media companies will improve their content moderation practices by more accurately and rapidly excluding or limiting access to objectionable speech that users do not want to see and platforms do not want to host.

The internet and social media are tremendously powerful tools for freedom of speech. It is not hyperbole to say that they are the most important development for expression since the invention of the printing press.

They have enormously enhanced the ability for people to reach a mass audience and to access information. But such tools, and speech itself, can be used for good or for ill.

James can investigate, but the law is clear: The social media companies cannot be punished for being the sites where racist speech was expressed by a deeply disturbed and violent individual.

This article does not necessarily reflect the opinion of The Bureau of National Affairs, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

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Erwin Chemerinsky is the dean of U.C. Berkeley School of Law and the Jesse H. Choper Distinguished Professor of Law. Prior to that he was the founding dean and distinguished professor of law, and Raymond Pryke Professor of First Amendment Law, at the University of California, Irvine School of Law.

Alex Chemerinsky is a federal law clerk in the District of Arizona.

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Mass Shootings and Hate SpeechWhat Can the Government Do? - Bloomberg Law

For several years after the 1998 Columbine high school massacre, and again after the 2012 Sandy Hook massacre, I wrote so often about the causes and consequences of American gun slavery that I felt a bit like the 19th-century abolitionist William Lloyd Garrison, railing against an evil that seemed indomitable.

In our own time, the real root causes of our gun mayhem seem so hard for Americans to understand or even to rebut that my efforts to highlight them especially in theWashington Monthly in 2016 and in theAtlantic, with law professor Daniel Greenwood, as well as on the Brian Lehrer show on WNYC hardly altered public perceptions.

So I left off for a while, recognizing that most of us perceive only what we're incentivized most strongly to perceive, and ignore what we're pressured and trained to ignore.

But those incentives and pressures are shifting now. Let me try again to help the perceptions and responses get ahead of what's really driving gun violence.

RELATED:Gun violence is the health care crisis we're ignoring

The most powerful immediate drivers are fairly obvious: First, the aggressive marketing and easy availability of guns, some of which shouldn't even be in any civilian hands. Second, the racial and ethnic or religious hatred that drove Dylann Roof in a Black Charleston church in 2015, Robert Bowers in a Pittsburgh synagogue in 2018 and Peyton Gendron in a Buffalo supermarket this month, among others. Third, the mentally deranged but seemingly "raceless" rage that drove Adam Lanza in the Sandy Hook elementary school in 2012, Stephen Paddock at a Las Vegas concert in 2017, Nikolas Cruz in Parkland in 2018 and Salvador Ramos in a Texas elementary school this month. Those are the virulent symptoms and accelerants, but not the root cause that grips millions of us so tightly and intimately that we're too numb to it to be alarmed or even to name it, let alone change it.

I'm not thinking about the evil in our divided human hearts that runs back to the Garden of Eden and to Cain's murder of Abel. I'm not even thinking mainly about American jurisprudence that has reinforced the Second Amendment and its enthusiasts. I'm thinking about the jurisprudence that, even more directly if more subtly, has expanded First Amendment protections of the commercial speech that indoctrinates us, 24/7, to embrace narrow, self-interested strategies of "self-improvement" and protection.

That kind of commercial speech, rendered ever more relentless, more intrusive and more intimate, strikes me as the main reason why we're losing our capacity and inclination to bind our sense of selfhood to our contributions to the good of the whole to "enlightened self-interest," as Alexis de Tocqueville and others called it.

Commercial speech is degrading our public and private lives, not malevolently or conspiratorially but for the most part mindlessly. It's groping us, goosing us, titillating us, tracking us, indebting us and, sometimes, as in commercials for drugs and home-protection systems, intimidating us, bypassing our brains and hearts on its way to our lower viscera and our wallets. Even ads that are "entertaining" incentivize defensive selfishness and greed.

Want a daily wrap-up of all the news and commentary Salon has to offer? Subscribe to our morning newsletter, Crash Course.

Some conservative Roman Catholic thinking calls for a "common good constitutionalism" aimed at reconfiguring and curbing self-interest by redirecting the energies unleashed by today's markets ber allesneoliberalism. But a theocratic, semi-authoritarian solution won't work in our society, which in its best civic-republican mode is "ethical and pragmatic, disciplined and free," as a mentor of mine, the late literary historian Daniel Aaron, put it.

To renew that civic-republican ethos, we need first to face a hard truth that, in my experience, many Americans consider too close for comfort: Commercial speech, combined with social media, has deranged the public sphere by fragmenting, privatizing and alienating millions of us, and I don't mean only the shooters.

The toxic effects of commercial speech and social media have deranged the public sphere by fragmenting, privatizing and alienating us by the millions. I don't just mean the shooters.

Those who become shooters have indeed been mentally disturbed or especially susceptible to displacing their early personal hurts and resentments, often consequences of social fragmentation and family disintegration. But many others among us "merely" embrace conspiracy theories and believe whatever Donald Trump or Tucker Carlson tell them. Still others and here's where it gets too close for comfort for many of us depend on retirement accounts or other forms of investment in the publicly-traded corporations and private-equity ventures that sustain the deluge of commercial speech that's miseducating and disorienting the most impressionable, most vulnerable and most badly stressed among us.

That deluge peddles false escapes into impulse buying and degrading entertainment, and for almost the last three decades social media platforms have amplified and catalyzed the viral spread of the violent displacement of rage and envy by the most deeply wounded among us.

Retirees, gung-ho investors and financial managers are all implicated in the investments that bypassing other people's brains and hearts in ways that weaken their inclination and ability to sustain public trust. The hard truth that few of us want to face, including those of us who produce "news" as well as consume it, is that the commercial "speech" that our employment and our supposed standards depend on must somehow be altered and curbed.

A rare acknowledgment of the problem in the form of a boast came in CBS president Les Moonves' famous declaration, at a Morgan Stanley conference in 2016, that Donald Trump's presidential campaign "may not be good for America, but it's damn good for CBS."

One necessary step will be reversing the Supreme Court's notorious Citizens United ruling, which extended First Amendment protections to corporate "speech," both in the form of direct campaign contributions and untraceable, unlimited "dark money" spending.

That kind of jurisprudence hands the megaphone, along with almost incalculable political power, to incorporeal entities, and leaves ordinary citizens who struggle to advance the public interest feeling powerless and straining to be heard. It doesn't strengthen speech but hollows it out, incentivizing selfishness and leaving us with empty platitudes. Pumping corporate speech into politics leaves a vacuum in public beliefs and virtues that clueless armed citizens have too often tried to fill by besieging state capitols and storming the U.S. Capitol.

These are too often the same people who refuse to wear masks because masks protect others more than themselves. Many of them buy guns not in the theoretical interest of making society safer, but to protect themselves against a society that they're making less safe day by day.

Still others work for investment banks and hedge funds, or pour their money into them, not to make business more efficient and effective but in order to accumulate enough wealth to insulate themselves from the decay their own activities accelerate, whatever clouds of pious public rhetoric they may offer. Others offer gifts, including large philanthropic donations, more intended to make themselves look good than to help the wounded and bereft around the world whom their activities have damaged.

"How many conservative economists does it take to screw in a lightbulb? None. The Invisible Hand will take care of it." That's an old joke about the false presumption that through some magical process a greater good will flow from everyone pursuing their own individual "good," and the less interference there is from "bleeding heart," "busybody" big-government liberals, the better.

Mass shootings may not be inherent in capitalism, but they stem from our individual drive to maximize narrow self-interest without considering the unintended consequences.

The accelerating danger of mass shootings and other forms of gun mayhem may not be inherent in capitalism as such, but in our long-internalized, individualistic drive to maximize personal profit and narrow self-interest, rather than reconciling what we do to "make a living" with its unintended consequences. The real danger lies in denying that a democratic polity must ultimately have sovereignty over an economy, and in pretending that wealth is anything more than a necessary support for a commonwealth.

"Ill fares the land, to hastening ills a'prey, when wealth accumulates and men decay," wrote Oliver Goldsmith in 1777, as the American republic was being born. Now that the republic is in danger of dying, let's take that warning to heart and find ways to pledge our lives, our fortunes and our sacred honor to defending its truth.

That kind of idealism may have been outflanked in our current era by developments that can only be described as fascist. We may have to move to tighter organizing and take to the streets. We may have to follow the example of unarmed peoples who've brought down vast, national security states in Eastern Europe, in South Africa, in British India by following the examples of Gandhi and Martin Luther King Jr., with disciplined purpose and our eyes on the prize, even at risk of death.

Read more on America's epidemic of mass shootings:

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Gun violence, neoliberalism and Citizens United: We can't change things without facing the truth - Salon

Bill Cotterell| Capital Curmudgeon

Uvalde mass shooting: US mourns after 19 children, two teachers killed

Families and the country are left to grapple with grief after a shooting in Uvalde, Texas, left 19 children and two teachers dead.

Scott L. Hall, Jessica Boller and Anastasiia Riddle, USA TODAY

Walking along a busy San Francisco thoroughfare on the day I got out of the Marine Corps, I was amused to see so many guns for sale in shop windows.

Id awakened that day in a barracks full of trained, disciplined Marines who knew what they were doing. We kept our rifles in a locked rack and, when we had a good reason to fetch them, the Officer of the Day would watch us sign the weapon in and out. There wasnt a round of ammunition anywhere nearby.

Yet there I was, on a downtown street with my mustering-out pay in my pocket and all kinds of guns available to anyone.

It seemed strange, in my youthful naivet, that well-trained military members zealously guarded their weapons while civilians put more regulations on dogs than instruments which, in the wrong hands, are deadly. But back then, I probably hadnt heard much about the Second Amendment or its political potency.

Covering politics and government in several states for 50-plus years, I heard all the legal arguments and the cheap bumper-sticker slogans usually in stories of unimaginable tragedy. And now, we hear it again; this time, its 19 little kids and two adults at an elementary school in west Texas.

When in Gods name are we going to stand up to the gun lobby? President Biden asked. When in Gods name do we do what needs to be done?

Probably not this time. Even if Biden was popular and had solid support in Congress, guns are politically untouchable.

As if by script, the shock and horror will dissipate and both sides of the never-ending gun debate will hurl Facebook memes and slogans back and forth for a while. Neither side will even admit that the other has a point.

That Second Amendment the Republicans hold so dear really does refer to a well-regulated militia. But our Supreme Court is likely to skip ahead to the part about the right of the people to keep and bear arms. And gun-control opponents correctly argue that criminals wont obey any law thats why we call them criminals and you cant deter illogical people with logical laws.

But shouldnt we try? Drunk drivers and heroin dealers dont obey laws either, but we try to stop them.

Must we live this way? Is burying 10 innocent people in Buffalo one week, and 21 in Texas the next, just a price we pay so some people can get rifles like Rambo uses?

As a journalist, I wont yield an inch on the First Amendment. But its tempered by laws against plagiarism, libel and slander. And we register our companies so you can find out who owns the presses and what they publish.

In various towns, Ive registered my house, my car, my marriage, the birth of my son, and my dog. The government hasnt confiscated them, so why shouldnt guns be registered?

But thats more impractical than ever in the current political climate.

More from Bill Cotterell:

On the day Nikolas Cruz murdered 17 people and wounded 17 others in Parkland, my wife and I landed in Australia on vacation. The Sydney TV nets were full of commentators saying it was all so simple just forbid private gun ownership and collect all the guns. Problem solved!

I was tempted to phone the TV station and ask if they had any idea how impractical no, impossible that is.

And sure enough, then-Gov. Rick Scott and the Legislature responded to Parkland with a few tepid measures, which promptly got tied up in court.

Biden is right about one thing: Other countries dont have this slaughter. If our leaders werent afraid of the gun lobby, maybe they could find out what those countries do and, even if it takes a constitutional amendment or two, go for it.

More likely, our leaders will issue statements about how our society is too violent, how families need to instill in our youth the values of responsibility and respect that we grew up with a generation ago. Then they can keep those statements handy for the next time it happens and the time after that, and the time after that.

Bill Cotterell is a retired Tallahassee Democrat capitol reporter who writes a twice-weekly column. He can be reached at bcotterell@tallahassee.com

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Do we really have to live with mass shootings? | Bill Cotterell - Tallahassee Democrat

AUSTIN (The Borowitz Report)A rattled Greg Abbott described for reporters the moment of abject terror that he endured when the gubernatorial candidate Beto ORourke suddenly talked to him.

Without warning, out of nowhere, there he appeared, saying things, the Governor of Texas said. Im still shaking just thinking about it.

Accusing ORourke of hiding behind the First Amendment, Abbott asserted, That amendment was written in the eighteenth century and was intended for use only in times of war, such as when Paul Revere warned that the British were coming.

Abbott said that he would secure twenty-four-hour police protection to shield himself from future terrifying incidents of ORourke speaking, and that he would take measures to safeguard fellow-Texans from similar outbursts.

One measure under consideration is a two-week waiting period between ORourke thinking of something to say and being permitted to say it, aides to the Governor confirmed.

The No. 1 problem facing Texas today is Beto ORourke making sudden, unprovoked comments, he said. We must pass new, strict laws to protect Texans from Beto ORourkes sentences.

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Shaken Greg Abbott Describes Moment of Terror When Beto ORourke Talked to Him - The New Yorker

If April is the cruelest month as T.S. Eliot and thousands of amateur dinner-table philosophers have attested then May may be the most poignant month.

And so, as the fifth month roars to a close amid rising temperatures, blooming wildflowers and great summer expectations, let us consider several late-month anniversaries that speak to us at this difficult moment in the American passage. They involve, as so much of our history does, our tortuous, tortured and tardy racial reckoning.

May will forever be remembered as the month in which George Floyd was mercilessly, senselessly and needlessly killed in Minneapolis, triggering a nationwide reexamination of our views on race.

This month also includes the birthdays of Jim Thorpe (the first Native American to win Olympic gold medals, a standout baseball and football player and film star) and Malcolm X (a controversial civil rights leader and prominent member of the Nation of Islam). Both left huge footprints in the pathways of American life.

It also is the birth month of John F. Kennedy, for most of his life a reluctant foot soldier in the struggle for racial justice, but in his last six months a strong voice for the cause he described as being as old as the Scriptures and as clear as the American Constitution.

Kennedy came to his conclusion about racial justice (We are confronted primarily with a moral issue) only after a long-forgotten May moment, Vice President Lyndon B. Johnsons 1963 Memorial Day speech at Gettysburg, where, in marking the 100th anniversary of the landmark battle there, he said, One hundred years ago, the slave was freed. One hundred years later, the Negro remains in bondage to the color of his skin.

That speech jolted Kennedy, prompting him to deliver his reprise of his vice presidents call to arms, saying, One hundred years of delay have passed since President Lincoln freed the slaves, yet their heirs, their grandsons, are not fully free.

Now we approach another 100-year anniversary, and the tensions that surround American presidents and their approach to race are rippling through the country again. Monday is the centenary of the dedication of the Lincoln Memorial, and the anniversary is important because it illuminates the assumptions of that time and the tensions of our own time.

Two American presidents were present to commemorate the life of a third American president. Both were Republicans. Both were white.

One was Warren G. Harding, who had been in office for only 13 months and had, in October 1921, told a large crowd in Birmingham, Alabama, that racial discrimination was the problem of democracy everywhere, if we mean the things we say about democracy as the ideal political state, adding, to the discomfort of the audience and the outrage of Birminghams ruling grandees, Whether you like it or not, our democracy is a lie unless you stand for that equality.

On that May 1922 dedication day, he said the 16th president knew he had freed a race of bondmen and had given the world the costly proof of the perpetuity of the American union.

Also on the dais was William Howard Taft, who after being president was appointed chief justice of the Supreme Court. He spoke of Lincolns instinct for justice, truth, patience, mercy and love of his kind, simplicity, course, sacrifice and confidence in God.

There were other speakers, all of them also white except for Robert Russa Moton, grandson of a slave. Here the educator who succeeded Booker T. Washington as the principal of the Tuskegee Institute clashed with Taft, one of the most prominent figures in the first quarter of the 20th century.

A dozen days before the dedication of the memorial, Taft asked to see Motons remarks. This was a fateful, and disgraceful, moment of conflict, a collision between the commemoration of the freedom won in the 13th Amendment to the Constitution and the freedom of expression enshrined in the First Amendment. Taft objected to several elements of the Moton text and insisted that this passage be excised:

My fellow citizens, in the great name which we honor here today, I say unto you that this memorial which we erect in token of our veneration is but a hollow mockery, a symbol of hypocrisy, unless we together can make real in our national life, in every state and in every section, the things for which he died.

Also cut was this evocative passage:

With equal truth, it can be said today: No more can the nation endure half privileged and half repressed; half educated and half uneducated; half protected and half unprotected; half prosperous and half in poverty; half in health and half in sickness; half content and half in discontent; yes, half free and half yet in bondage.

Moton, a late addition to the proceedings someone recognized that an event celebrating Lincoln could not be conducted without at least one Black speaker was not invited to sit with the white speakers. Indeed, Black people in the audience were shunted off to a roped-off area, prompting the Chicago Defender, the prominent Black newspaper, to remark, The venomous snake of segregation reared its head at the dedication.

Nonetheless, Moton argued in his remarks that greatness for Abraham Lincoln lies in this, that amid doubt and distrust, against the counsel of chosen advisers, in the hour of the nations utter peril, he put his trust in God and spoke the word that gave freedom to a race.

Today the legacy of Lincoln, like that of the Founders and Andrew Jackson, is being reexamined. He remains known for his Emancipation Proclamation, but other elements of his life his opposition to interracial marriage, his advocacy of shipping Black people to Africa, his hostility to racial equality and skepticism of the abolitionism movement are receiving new prominence.

In dedicating the Union cemetery at Gettysburg in 1863, Lincoln employed various forms of dedicate six times in a speech of only 272 words.

At the centenary of the dedication of his own memorial, we might dedicate ourselves to the notion that, as he put it in a speech that transformed the Civil War from a battle for preservation of the Union into a crusade for the abolition of slavery, this nation, under God, shall have a new birth of freedom and that government of the people, by the people, for the people, shall not perish from the Earth.

DAVID M. SHRIBMAN is the former executive editor of the Pittsburgh Post-Gazette.

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SHRIBMAN: On 100th anniversary, Lincoln Memorial reminds us of unmet aspirations - Sharonherald