Written By: Anton Sawyer
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Section 230 And The Real Constitution Crisis: The Freedom of Speech
It never ceases to amaze me how both Republicans and Democrats speak so highly towards the United States Constitution, yet the actions of both parties' leadership and bases have shown that they would really like to do away with some of the more (un)popular elements.
Today I'm going to focus on the First Amendment's Freedom of Speech clause and provide some examples—both personal and otherwise—to illustrate the distaste they share.
Over the last three years, we have seen Republican leaders like Donald Trump come out and sign a (mostly) symbolic Executive Order in March of 2019 guaranteeing free speech in colleges—by removing federal funds from Universities that are found in violation of the Constitution. As of this writing, there hasn't been much kerfuffle over the order.
A year earlier, Democrat Senator of Vermont Patrick Leahy was quoted as saying "The First Amendment was the most important part of our Constitution because it promised the freedom of speech," in a press release from November 2018. There are many more that can be found easily enough. You would think that with so much lip service being given to this fundamental American right that leadership from both sides would be the flag bearers in any court case that could threaten it. Unfortunately, this isn't exactly how everything has played out.
As we know in the world of Trump, any thought, idea, even the core of his reality can change at the drop of a hat. This happened with his feelings towards freedom of speech with a Tweet he sent out on November 26th, 2020: "For purposes of National Security, Section 230 must be immediately terminated!!!"
The section he's referring to is 47 U.S.C. § 230, a Provision of the Communication Decency Act. You can read through the entire thing in the bibliography, but at its core, it says that an internet site cannot be sued for the things that are said on their platform.
I'm not entirely sure as to why Donald Trump wants to see it removed so badly.
If it were overturned somehow, and let's say Twitter was held liable for any crime that was committed as a result of something that someone posted anywhere on their website, it would escalate monitoring and crack-downs vastly. It would be near impossible to post something that had any kind of controversial tone whatsoever. To put it in a way that would make complete sense to someone with a conservative bent would be this; if someone legally purchased a gun, went to a restaurant, and shot it up, the gun manufacturer would be held liable for the actions because they made the gun.
One would think that because of how misguided this attempt is, it would vanish like many of the other controversies that Trump has tried to gin up over the last decade or so ... then comes a plot twist.
Senate Judiciary Committee Chairman Lindsey Graham, R-S.C., Dianne Feinstein, D-Calif., Sen. Josh Hawley, R-Mo. and Sen. Richard Blumenthal, D-Conn. introduced a bill that would greatly hinder the freedoms the sites have with their ability to allow free ideas and discussion under the guise of "saving the children." S. 3398, Eliminating Abusive and Rampant Neglect of Interactive Technologies Act of 2020 (EARN IT) was introduced in March of 2020. Though there are many flaws to this legislation, the one that does impact Section 230 is one that would do so by stripping it of all its protections. These protections would only be given back if internet companies follow a list of "best practices" set up by a government commission of 15 people.
It's been no secret over the last number of years that Trump, and those who cater to him, will try to challenge American traditions in whatever way he needs at the time. With this thought, one would be surprised to see two Democrats join in that censorship-filled miasma of law initially. But when you take a closer look, especially towards Feinstein's past, you see that freedom of speech hasn't been a big fan favorite of the liberals either.
In June of 2017, the United States Supreme Court ruled 8-0 in favor of free speech in the case of Matal v. Tam. At the core of the issue was a band name. The Slants. A group comprised of Asian-Americans were not being allowed by the US Patent and Trademark Office to register their band name, as it was considered offensive and derogatory. It made its way through the courts until it reached the highest in the land. The majority opinion stated "The disparagement clause violates the First Amendment’s Free Speech Clause. Contrary to the Government’s contention, trademarks are private, not government speech." Two months later during a Senate Hearing, Professor Eugene Volokh of UCLA School of Law and Feinstein got into a back-and-forth about free speech. Volokh had referenced the Supreme Court case and said to the Senator “The government may not punish speech because of the viewpoint it expresses, whether it views it as hateful or otherwise.”
With a disapproving tone, she responded with “No matter how radical, offensive, biased, prejudiced, fascist the program is? You should find a way to accommodate it?”
“If we’re talking about the substance of the program, not the danger and credible threats but the substance of the program, then yes,” he replied.
It was made clear through this exchange and disapproval of allowing topics she disagrees with to flourish, that there is leadership in the Democratic party which has no qualms about limiting speech that they don't like. This ideology has also gained speed with those on the far-left who are not afraid to try and destroy any and every one of those they do not agree with; we know them as the Social Justice Warriors.
This is the subsection of the liberal party that every conservative uses as the poster child for "political correctness." Even Republican Senate Majority leader Mitch McConnell has called them "the grievance-industrial complex.” Whenever you hear someone boast about not being PC (which is then usually followed by saying something blatantly offensive trailing off with laughter), this person is the example in their minds of who they want to upset. They are also the one group that I had the most issues with when I was doing public relations (PR) during the first part of the Trump administration.
Black Pussy is a 70s-influenced stoner rock band that had been mired in controversy from their first show in the early 2010s. I was introduced to them while writing rock journalism for a local entertainment magazine. By the time I became familiar with their music, trouble had been following them for quite a while. Outside of the obvious, a lot of this negativity was the perceived etymology of the name; the raping of slaves. With their 70s influence and quotes from the band about being fans of the Rolling Stones, comparisons in the media happened. The original title of the song "Brown Sugar" was "Black Pussy," and the lyrical content of the song is about the raping of black slaves. The only problem with this is that the connection was only established in the minds of those in certain media outlets. Having worked with, spent time with, and picked the brain of the bands' leader, Dustin Hill, there is no racism in either the lyrics or the people in the group.
In 2014 they had gained some national attention over their name and the amount of blowback they had been receiving for all the above-mentioned "offenses" when a number of high-profile artists, one being Madonna, was seen wearing their band shirt in solidarity to show support of the freedom of speech and expression. By the time I got involved, they had been doing their PR for a year or so because the pressure from various liberal-affiliated groups had caused their prior representative to quit.
Before starting they warned me that it was not going to be an easy job and that at no time was I to even mention changing their name. Within two months they were going on tour and I set out to drum up press in its support. Over the next few months, the band started getting show cancellations due to club owners and managers receiving multiple threats of violence. Emails explaining that if the band was allowed to perform, the club would be burned to the ground. Or that the employees would be beaten to death after the venue would close. Once it was found that I was their PR guy, I became a target too. Going by an assumed name at that time as well, mainly out of safety, I got messages aplenty. Messages telling me that I was lucky that I didn't use my real name because if they did find me, they would beat me and leave me in a ditch for dead.
By the time I became involved with the band, the landscape had changed drastically when it came to racism and the perception of it. I do not want to minimize the systemic and other racial injustices that are the cornerstones of our society. Those elements are real. But I can't see how a stoner-garage rock band that has never written about, espoused, or had done anything to perpetuate those systemic injustices; it was clear that many felt differently. At the end of the album/tour cycle, we went our separate ways. I learned a lot from the experience as to the profound nature of strength in numbers with the backing of a superior idea of morality behind them.
Between legal threats from upon high, to the physical ones from the boots on the ground, I find it interesting how each side is doing whatever they can to support the philosophical ideas that support their viewpoint.
Is it morally wrong to ridicule someone?
To make them feel like they are a waste as a human being through words—both written and spoken?
Is it wrong to try to stop someone from expressing their feelings with whatever words they chose, even if you don't like it, though it's a right in the constitution?
Is it wrong to crush art because you feel that the name of the artist is going to perpetuate the systemic injustices that have always come from the top down, though it is a basic principle of liberty?
All of these questions, depending on perspective, are a "yes."
The problem is when you try to enforce this morality through either legislation or a kick to the neck, you're going to see a fight that will eventually spill everywhere. The founding fathers were wise when it came to making free speech a primary right, they just dropped the ball when it came to any kind of "retaliation clause."
Too bad we have no way at all to modify such a document ...
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