Over the next few months, Facebook's Oversight Board of thinkers from around the world will decide whether Facebook's ban on Trump should stand or whether he should be let back on. Academic free speech advocates are already suggesting that the Board may well be more responsive to free speech concerns and reinstate Trump. And they are clearly happy with this prospect.
Something has gone very wrong with the concept of free speech protected by the 1st Amendment to our Constitution. There are two issues here. The first is, whether lies and misinformation such as Trump engaged in can be prohibited speech. The second is, how does the advent and impact of social media, as well as cable news, affect the concept of clear and present danger.
Let me once again remind the reader that the 1st Amendment's right of free speech is not absolute, just as none of the rights guaranteed by the Bill of Rights is absolute. The court has long held that certain types of injurious speech can be regulated. Whether it's false advertising, libel or slander, obscenity, or gag orders relating to a court case, the court has approved regulating speech when there is a clear danger of harm to others or, in the case of gag orders, to the impartial process of jury deliberations. In such cases, the state's interest in regulating the speech outweighs the protection granted by the 1st Amendment.
Clearly Trump's lies and misinformation made it virtually impossible for people who believe him, he was the President after all, to render a reasoned verdict on who they should vote for. All politicians lie occasionally, including Presidents, but the systematic manipulation of facts by equating lies with "alternative facts" and the truth as "fake news" has no precedent, at least in modern American history.
Trump is an expert proponent of the "big lie," a propaganda theory perfected by the Nazis. Adolf Hitler in his book, Mein Kampf, wrote of the value of using a lie so huge that no one would believe that one would have "the impudence to distort the truth so infamously."
Joseph Goebbels, the Nazi propaganda minister, went on to expand, “If you tell a lie big enough and keep repeating it, people will eventually come to believe it. The lie can be maintained only for such time as the State can shield the people from the political, economic and/or military consequences of the lie. It thus becomes vitally important for the State to use all of its powers to repress dissent, for the truth is the mortal enemy of the lie, and thus by extension, the truth is the greatest enemy of the State.”
If the reader things my Nazi reference is uncalled for, Trump stated very clearly to Leslie Stahl of 60 Minutes that his purpose in bashing the press, calling it "fake news," was to discredit them, to create a reality in which his supporters would not believe the allegations that he knew would be made against him by his opponents. This is a classic use of the big lie.
But free speech advocates argue against regulating political speech because it does not harm someone, it is an exchange of ideas, which is critical to the proper functioning of a democracy. They say there is no threat of "imminent lawless action" or "clear and present danger" which the Court has required. Forgetting that those standards have been used by the Court to judge speech that advocates the use of force or violation of the law. And so regardless how outrageous or damaging, free speech advocates claim he should be allowed to speak for the sake of our democracy.
What is the impact of technology, of social media, on discussing this question? As recently as 25 years ago, a politician or President could have made the kind of comments Trump makes routinely and it would have had little effect because it would have gotten little exposure and/or he would have been exposed for what he is in the news, both print and TV. All news media, at least major ones, were mainstream, whether liberal or conservative.
But with the advent of Fox News in 1996, and then the social media platforms of Twitter and Facebook in 2006 and 2004 respectively, the ability of someone to propagate their own fake news, their big lie, went viral. As we've seen with COVID-19 and the election, there are innumerable right-wing media outlets that will propagate the lies and misinformation of the President. And through social media such as Twitter and Facebook, the President had the ability of directly communicating with his millions of followers, and so they got the word from him undiluted and unquestioned. The result was disastrous.
Regarding the election, although no one was "harmed" in the classic sense such as false advertising or libel, this situation is more analogous to the gag order. There it is the process of justice that must be protected and kept impartial. Here it is the process of the election, which while certainly not impartial, must allow people to exercise a choice, to reason. That is what lies behind the concept of freedom of speech and its essential nature to democracy.
And so I would argue that Trump's constant stream of lies and misinformation through social and other media did and does constitute a clear and present danger to the process of our elections, which is the process of democracy. And so his speech can be prohibited.
Regarding the pandemic, his lies and misinformation not just presented a clear and present danger, but it did in fact result in great harm to millions of people, indeed to our entire country. We're not just talking about those who died, or those who have been infected, were talking about the effect of the pandemic on people's lives and their financial and psychological well-being. Such speech can and should be prohibited.
The question then is should his rights be suspended for a short period of time or should he be banned from Facebook? Given the pathological nature of his lies and misinformation and the fact that it occurred almost daily during his entire presidency, I think there is justification for holding that the ban can and indeed should be permanent. Even out of office, he poses a huge potential threat to our democracy if he is given a media platform to speak to the people.
For the sake of our democracy's well-being, the Facebook ban on Trump should be made permanent.
