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In an unprecedented display of private censorship, Twitter, Facebook and other major social media platforms suspended former President Trumps accounts, preventing him from communicating with his millions of followers. Many Americans were relieved, finally, to see limits placed onTrumps ability to spread misinformation and sow discord. But few should be sanguine attheprospect of unaccountable technology monopolies serving asthenations speech police.

Social media platforms such as Facebook and Twitter also have allegedly deletedtheposts and accounts of racial justice advocates at home and human rights activists abroad, especially when they have been critical of government power.

That private technology platforms exert unparalleled power over political discourse is deeply undemocratic.

To be clear, this is not a First Amendment issue.TheFirst Amendments protection of free speech applies only tothegovernment and not to private companies. But it is an issue of profound importance with regard to free speech andtheright of speakers to express their message and of their audience to hear it.

Congress, though, can regulate social media platforms by federal law and hasthepower to pass legislation that forbids designated social media platforms from discriminating against users and content onthebasis of their political views. Platforms would still be free to remove unprotected speech such as libel, slander, threats andtheintentional dissemination of untruth. They would also be permitted to remove posts that do not conform to their community standards of decency and mutual respect. But platforms would not be permitted to censor speech based on its political content.

Congress hastheconstitutional authority to enact such legislation, and it has exercised this authority inthepast. Starting in 1949, through what became known asthefairness doctrine,theFederal Communication Commission (FCC) required broadcast licensees to discuss controversial issues of public importance and to ensuretheexpression of contrasting viewpoints. IntheCommunications Act of 1959, Congress explicitly acknowledged the obligation of broadcasters to operate inthepublic interest and to afford reasonable opportunity forthediscussion of conflicting views on issues of public importance.

TheSupreme Court upheldtheconstitutionality ofthefairness doctrine in Red Lion Broadcasting Co. v. FCC (1969). TheCourt held thattheFirst Amendment does not preventthegovernment from requiring a broadcast licensee to conduct itself as a fiduciary with obligations to present views and voices that are representative of its community. Otherwise, broadcasters would have unfettered power to communicate onlytheviews of those with whom they agreed.

In Red Lion and subsequent cases,theSupreme Court has said thatthegovernment can regulatethespeech of broadcasters so long as its action is substantially related to achieving an important government purpose. For example, in Turner Broadcasting System v. FCC (1997),theCourt rejected a First Amendment challenge tothemust carry provisions oftheCable Act of 1992, which forced cable television providers to dedicate some of their channels to local broadcast television stations. In doing so,theCourt recognizedtheneed to promotethedissemination of information from multiple sources in order to counteractthemonopoly power of cable companies.

Based on these cases, a nondiscrimination doctrine applied to technology platforms with monopoly power should also be upheld.TheRed Lion decision rests in part onthescarcity ofthebroadcast spectrum, but private monopoly power over speech exists not only whenthegovernment grants a broadcast license, but also when a social media platform dominates public discourse. In truth,thepower that platforms such as Twitter and Facebook possess is far greater than that of individual broadcasters who compete with one another as well as with satellite and cable networks.

A federal law preventing social media companies from discriminating onthebasis of political views would enhance free speech by preventing monopoly suppression of particular views, thereby ensuring that competing voices are heard over social media. Such a provision would be narrowly tailored because it requires only that platforms refrain from censoring speech onthebasis of its political content. In contrast, underthefairness doctrine, broadcast licensees were required to identify issues of public importance and present contrasting viewpoints. These aspects ofthefairness doctrine have been criticized, but a nondiscrimination doctrine does not require identifying and promoting particular views.

Finally, social media platforms do not and should not receivethesame protections affordedthepress. In Miami Herald v. Tornillo (1974),theSupreme Court invalidated a Florida law that granted political candidatestheright to reply to attacks on their record by a newspaper because it infringed onthe newspapers editorial freedom. However, under Section 230 oftheCommunications Decency Act of 1996, providers of an interactive computer service are not publishers or speakers of third-party content provided on their service. Unlike newspapers, social media platforms are immune from lawsuits that arise from that content.

Free speech is threatened by both public and private censorship. But existing laws do little to limittheawesome power of todays social media monopolies to silencethespeech of whoever they oppose. By preventing social media platforms from discriminating, Congress can keep faith withtheFirst Amendment while ensuring that private monopolies do not controlthepublic sphere.

PrasadKrishnamurthy is a professor at the University of California, Berkeley School of Law. Erwin Chemerinsky is dean and a professor at the University of California, Berkeley School of Law.

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How Congress can prevent Big Tech from becoming the speech police | TheHill - The Hill

The left has a free-speech problem. As Bryce Wyles recent column indicates, there is an increasingly common willingness to strip basic civil liberties in the name of social justice, as well as a troubling lack of understanding of the First Amendment, what it exists to protect and the inherent societal value of free speech. There is deep irony to Wyles statement that people will often assume their freedom of speech means they can deny others right to speech that is simply unconstitutional. This statement is nonsensical not only because nowhere on the list of non-first amendment protected speech is anything resembling silencing others, but also because the hateful speech Wyles describes does nothing to prevent anyone from speaking out against it. Most of all, Wyles article shows a disturbing disregard for freedom of speech. It indicates a belief that only those who wish to express reasonable or even only progressive speech deserve free expression.

The First Amendment protects racist speech, bigoted speech and other hate speech. However, this is not a flaw in our free-speech laws but a deep strength. Like Wyles, I am disgusted by the Universitys chapter of the Young Americas Foundations hateful actions. However, what makes the First Amendment so powerful is that it does not exist to make me comfortable. It does not exist to protect reasonable opinions, good ideas and productive discourse. It exists to protect the repugnant, the controversial and the provocative. A world without the freedom to say controversial things even objectively terrible things is a world without free expression. Without free expression, there can be no civil liberties.

Further, U.Va. is a public university and is thus legally bound to uphold the First Amendment. It both cannot and should not silence any First Amendment protected speech, which ultimately includes all hate speech that does not become harassment, libel or any other non-protected speech act. However, Wyles column reveals a greater problem than ignorance about the First Amendment. The complete willingness to disregard basic liberties in the name of social justice is an increasingly common trend in college leftism. Ultimately, this trend will work to the detriment of liberal thought and erode leftist commitment to liberal values.

As a liberal, I am increasingly troubled by the distinctly authoritarian streak in modern leftism. While I wholeheartedly agree with the leftist cause of economic and racial justice, the increasingly authoritarian, anti-free speech rhetoric used by leftists is deeply harmful to the progressive cause. Over the past few years, I have seen words like free speech and liberty become dirty words in liberal spaces this deeply disturbs me. To abandon a commitment to essential civil liberties yes, even for those with whom you disagree radically is to abandon what liberalism fundamentally stands for in favor of destructive dogmatism. I align with the political left because I deeply believe in the value of a free and open society. This is something that can only be gained when all are able to express their beliefs, and where ideological disagreements are solved in the public forum of debate, discourse and protest. When someone says something repugnant, the solution is not to silence them but to use your rights to vocally and intensely disagree.

If an appeal to the inherent value of civil liberties isnt convincing, then consider a more pragmatic perspective. If your goal is to change minds and hearts, advocating for the censorship of those you dislike isnt going to change anything. In fact, it makes leftists appear volatile, dogmatic and anything but progressive. Public disagreement gives liberals an opportunity to share their best ideas and to actually present compelling arguments for joining the cause. Censorship is lazy and ultimately ineffective.

I believe in the liberal cause and the importance of leftist activism and advocacy for the kinds of radical change needed in our nation. I, too, am enraged by the kinds of hateful, indisputably racist language groups like YAF deploy. However, for all my disagreement, I could not in good conscience wish for their silencing. Instead, I use my own free expression to state deep disgust at their speech, while remaining deeply committed to their right to say it. Authoritarianism is becoming increasingly popular on both sides of the aisle and to devastating effect. If progressivism is to remain a powerful force, and frankly to state a deeper fear of mine if a commitment to liberty is to remain valuable in this nation, leftists must abandon authoritarian sympathies. The freedom of speech is one of the most basic and essential rights given in this country. I, for one, will continue grasping tightly to it.

Emma Camp is an Opinion Columnist for The Cavalier Daily. She can be reached at opinion@cavalierdaily.com.

The opinions expressed in this column are not necessarily those of The Cavalier Daily. Columns represent the views of the authors alone.

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CAMP: The left should embrace free-speech again - University of Virginia The Cavalier Daily

Democrats took aim at the Trump legal teams expected First Amendment defense, saying it has no basis in the evidence.

Watch Raskins remarks in the player above.

Lead House Impeachment Manager Jamie Raskin argued in the Senate trial that there is a First Amendment defense against the impeachment charge is absurd.

Futher, Raskin said, The First Amendment does not create some superpower immunity from impeachment.

Thursdays session follows the previous days raw and visceral video of last months deadly insurrection.

Though most of the Senate jurors seem to have made up their minds, making Trumps acquittal likely, the never-before-seen audio and video released Wednesday is now a key exhibit in Trumps impeachment trial as lawmakers prosecuting the case argue Trump should be convicted of inciting the siege.

Trump lawyers are expected to will argue Friday that his words were protected by the Constitutions First Amendment and just a figure of speech.

Excerpt from:
WATCH: Trump not protected by First Amendment for inciting insurrection, Rep. Raskin says - PBS NewsHour

Rep. Jamie Raskin, D-Md., the lead House impeachment manager, speaks in the Senate on Wednesday. He argued that former President Donald Trump incited the Jan. 6 attack on the U.S. Capitol and that his words are not protected by the First Amendment. Bloomberg/Bloomberg via Getty Images hide caption

Rep. Jamie Raskin, D-Md., the lead House impeachment manager, speaks in the Senate on Wednesday. He argued that former President Donald Trump incited the Jan. 6 attack on the U.S. Capitol and that his words are not protected by the First Amendment.

Lead House impeachment manager Rep. Jamie Raskin, D-Md., opened the second day of impeachment proceedings by rejecting the defense's argument that former President Donald Trump's remarks at a rally prior to the Capitol attack are protected speech under the First Amendment.

Raskin said that Trump was not merely a private citizen walking down the street expressing his support for the overthrow of the federal government. The former constitutional law professor said if Trump were, his speech would be protected.

As president, however, Raskin argued, Trump had a sworn duty that set him apart from every other American to protect the Constitution.

"Look, if you're the president of the United States, you've chosen a side with your oath of office," Raskin said. "If you break it, we can impeach, convict, remove and disqualify you permanently from holding any office of honor, trust or profit in the United States."

Raskin likened what Trump did to a local fire chief who is paid to put out fires but instead orders a mob to descend on a crowded theater and set it ablaze.

And then when calls for help go to the fire department, Raskin continued, Trump "does nothing but sit back, encourage the mob to continue its rampage and watch the fire spread on TV."

Raskin noted that the conservative Federalist Society issued a memo before the start of the impeachment trial that said in part: "The First Amendment is no bar to the Senate convicting former President Trump and disqualifying him from holding future office."

Raskin added that not only are Trump's words not shielded by free speech protections, but what he did on the day of the Capitol attack was the act of "inciter in chief."

"When he incited insurrection on Jan. 6, he broke that oath [of office]. He violated that duty. And that's why we're here today. And that's why he has no credible constitutional defense," Raskin said.

Trump's legal team is expected to rely heavily on a First Amendment defense. Tuesday, defense attorney Bruce Castor asked the Senate, "This trial is about trading liberty for the security from the mob? Honestly, no. It can't be."

"We can't possibly be suggesting that we punish people for political speech in this country," Castor said.

As NPR's legal affairs correspondent Nina Totenberg reported on Tuesday, some legal scholars argue that the question is irrelevant to an impeachment trial.

"The First Amendment's protection of freedom of speech simply doesn't apply to impeachment," Peter Keisler, a former acting attorney general in George W. Bush's administration, says. "This isn't a criminal prosecution which seeks to render someone's speech illegal."

Trump is entitled to hold whatever opinions he wants and to express them, Keisler says. "But he is not entitled to assert a First Amendment defense against removal or disqualification from office ... because the Founders were in particular worried about ... the ways in which demagogues could become tyrants."

Continued here:
Trump Impeachment Trial And The 1st Amendment Debate : Trump Impeachment Trial: Live Updates - NPR

The response to my column about what to do with police officers who participated in the Trump rally on January 6 was immediate and intense. And whats clear so far is that the dozens of law enforcement agents who traveled to the nations capital that day to support or witness an insurrectionists cause will long be tagged by it. Some may get charged with a crime. Some may be fired. But even those who keep their jobs will face credibility questions for the rest of their professional lives. They will forever be the cops who traveled miles to gleefully participate in a potentially dangerous event based on a monstrous lie.

The gist ofmy February 1 pieceis that there is really only bad news and worse news for these cops. Either they were insurrectionists, in which case they have no right to wear a badge, or they were too foolish to heed all of the warnings about potential violence in Washington that day, in which case they really have no right to wear a badge. What actually happens to these officers, however, turns both on law and local politics or more precisely, the politics of local policing. It figures that it would be harder for a cop to come home from the Trump rally to a blue country than a red county, right? But well see.

The legal answers will come from the text of the First Amendment. Some cops who are fired are going to sue to get their jobs back by saying they were illegally retaliated against for exercising their free speech rights. They will say that even public employees government employees have certain First Amendment rights. They do! But those civil lawsuits will turn on whether the rights of those cops to attend Trumps rally outweigh the interests their police departments have in ensuring public confidence in the competence of officers, including the officers ability to easily distinguish uncontroverted evidence from baseless conspiracy theories.

Thats how the legal case will play out. Whats a little clearer now is what the politics of it will look like. Law enforcement agents who attended the rally and the ensuing riot will be fired, whether or not they are criminally charged. Those officers who attended the rally but left before the riot will likely keep their jobs unless their social media profiles from before the rally, or their comments after it, make it clear they are a discredit to their departments. But even those cops who attended the rally and left before the riot and dont have Facebook walls full of white supremacist junk arent easily going to be able to shake their link to the Capitol riot.

The two most interesting reactions to my piece dovetail together and are worth mentioning. One law enforcement source told me that police officials in some jurisdictions will be willing, if not eager, to fire or discipline officers who were at the rally but not involved in the riot if their participation that day was part of a broader pattern of support for racist causes or sedition. Another source a few actually wondered whether police officials would be scared to look too closely under such rocks given howextensivethe links seem to be between law officers and right-wing groups. I mean, thats the heart of the problem to begin with, isnt it?

We are seeing a form of this situationunfold alreadyin Franklin County, Kentucky, home to the state capital, Frankfort. Jeff Farmer, a sheriffs deputy, proudly attended the Trump rally and now has come home to controversy. Even before the insurrection and coup attempt in Washington, even before the protests last summer in Frankfort over police brutality, Farmers conduct as a cop had attracted the attention of local civil rights leaders and defense attorneys for what they consider misconduct, ranging from use of excessive force to discriminatory practices.

When word got out that Farmer had attended the Trump rally and it wasnt as though he felt he needed to hide the news Franklin County Sheriff Chris Quire was forced to launch an investigation that has roiled the county. On the one side are Farmers many supporters, on the force and in the community, who say hes a good cop who has done a great deal to apprehend drug dealers. On the other side are those who see in Farmers Trump-infused journey to Washington as further proof that his professional judgment, at a minimum, should be called into question. Cops have constitutional rights,remember, but there is no constitutional right to be a cop.

Nathan Goodrich, an attorney who runs the public defenders office in Franklin County, put it well last week in aninterviewwith Jon Schuppe of NBC News. Goodrich has clients whose lives have been directly impacted by Farmers work. The march was based on a lie stop the steal, the election was stolen, Goodrich said. So much of Deputy Farmers work as a detective is determining when people are telling the truth and lying to him. It raises questions about his ability to do his job as a detective when hes engaged in a rally in support of a belief that so many members of the community believe is utterly without support.

Farmers story so far suggests he is hewing to the same line weve seen expressed by cops in several other cases in which theyve been questioned about their roles in Washington on January 6. But Farmers story suggests more, too. During his trip, he documented his arrival with friends on Facebook, and after the siege wrote a post in which he called the rioters idiots and questioned whether they were really Trump supporters. Its that last part that ought to trouble the sheriff and the residents of the county. And if I were Goodrich and company, its that last part Id want to ask Farmer about under oath.

It was beyond a reasonable doubton the day of the riotthat most if not all of the rioters were Trump supporters. That was clear during the rally that preceded the riot, it was clear as the siege was unfolding and we all could see the harrowing images from inside the Capitol, and it was clear in the immediate aftermath of the attack, even before federal law enforcement officials started arresting and prosecuting right-wing extremists involved in the insurrection. For a cop not to see that, or to see it and pretend otherwise, goes to the very heart of what it ought to mean to be a cop: Seek the truth. Follow the evidence. Stay clear of the crap.

I hope that the sheriff is asking tough questions of Farmer in Franklin County. And I hope that Farmer is answering them candidly. The more we hear about the coordination that took place in advance of the riot, the more we hear about all the threats that preceded the rally, the more it becomes clear that no law enforcement agent should have been near that rally that day as a private citizen. Whether Farmer loses his job or not, and today I have no reason to believe that he will, its going to be virtually impossible for him to go back to his pre-riot days. His community will never see him the same way again. Maybe it was all worth it. I would want to know that, too, if I were a public defender.

In the same way that prosecutorskeep lists of police officerstheydont trust to testify, there will now be a new list of cops whose credibility may legitimately be questioned about January 6 if they are ever called as a witness in a future criminal case. Only this list wont be the secret purview of prosecutors and police union officials. It wont be the subject of countless years of litigation. One day very soon (if it hasnt already happened), there will be a crowdsourced, publicly available database containing the names of every law enforcement agent associated in any way with the Trump rally or deadly riot that followed.

That will be a great day. Every cop who believes today that Trump won the election, or who believed it on January 6, should have to answer for that belief all the rest of their days in uniform. They should have to answer it in courtrooms under oath in front of juries. And in conference rooms during sworn depositions. They should have to answer it during public press conferences. It should cast a pall on everything they touch in their professional lives. We talk a lot about police accountability and about how we are going to root conspiracy theories and white supremacy out of law enforcement. Heres one way to begin doing that.

The views expressed are the authors own and not necessarily those of the Brennan Center.

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The Insurrection, Police Accountability, and the First Amendment - brennancenter.org