Facebook's Ban of Trump Is Not an Infringement of Free Speech

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. 

Trump's 1776 Commission Report - An Extension of Fake News

One of Trump's last acts as President was releasing the report of his 1776 Commission, members of which included no professional historians but did include right-wing conservative activists and "thinkers."  

It's no surprise therefore that just as Trump legitimized his fake news, his alternative facts, by calling the authentic mainstream news fake news, this report lambasts liberals and progressives for hijacking the founding documents and the intentions of the founders and indoctrinating the youth of this country with liberalism and instead calls its highly conservative version of our founding as being the real facts.   It even disputes the impact of slavery on the founders and our history and criticizes the Civil Rights movement as not being true to the founders' intentions. 

When I read a summary of some of the reports main "findings" I thought it sounded suspiciously like the writing of Matthew Spalding in his We Still Hold These Truths: Rediscovering Our Principles.   And so I Googled whether he was on the commission.   He was in fact the Executive Director. 

This right-wing take on our founding documents and the founders is a travesty of historical research and interpretation.   When Spalding's book was published in 2009, I was aghast because it had the same title as my 2004 book, We Still Hold These Truths: An American Manifesto. 

When I edited the Wikipedia entry for "We Still Hold These Truths" to include information about my book - it just had included Spalding's book - here is what I said:

"Hirsch has a very different reading of those principles found in our founding documents. This is not as surprising as it may appear, for as Hirsch says in his book, 'in [the Declaration’s] interpretation lies the core of both the Liberal and Conservative ideologies that have run through American political life and the tension between them.'"

"Hirsch looks at the words of the Declaration and finds an all-embracing, profoundly Liberal, statement of the equality of all people and that all have the right to life, liberty, and the pursuit of happiness. And that, as stated in the Declaration, the role of government is to secure these rights. Hirsch then goes on to use the Declaration of Independence as a touchstone to examine nine key areas of government policy." 

"Ironically, just as Spalding feels that Progressives eroded the founding principles, Hirsch believes that, “our nation stands at a crossroad. There is a radical Republican movement afoot to fundamentally alter the balance that our system has struck between private rights, the public good, and government. The issue is not simply big versus small government, high versus low taxes. At risk is the heart of our democracy, our historic values.” 

"Hirsch states that current Republicans focus solely on rights of the individual, quite divorced from their responsibilities as citizens and from the rights of others and the common good. Since the Declaration states that all men are created equal and all have the right to life, liberty, and the pursuit of happiness, the system can only work if one says that each person has this liberty so long as it does not harm others or impinge on the rights of others. This last proposition is in fact the basis for all government laws and regulation, whether of individuals or corporations. "

President Biden almost immediately disbanded the 1776 Commission, but its report will probably not just gather dust, as most reports do, because the far right loves to be able to justify their beliefs and actions based on the Constitution.   They love the legitimacy it confers. 

Whereas for some perverse reason, liberals and progressives do that seek to actively use our founding documents to support their cause.   Perhaps they feel it's so obvious; but to much of the country obviously that is not the case.   Whenever I've sent my book to top Democratic politicians, I've only gotten an acknowledgment at best, despite a pre-publication endorsement from James Fallows, the well-respected national correspondent for The Atlantic.   Liberals do not flock to my book for support like the far right flocks to Spalding's book.

Republican Representatives and Senators Must Be Held Accountable

When Congressmen take the oath of office, they swear that they will "support and defend"  the Constitution.   A central part of the Constitution concerns our electoral process.   It is a core element of our democracy and the peaceful transfer of power.

If there were indeed evidence of fraud, and the courts for some reason refused to acknowledge that evidence, and so they objected to the votes of electors on solid ground, they would be doing their job because a fraudulent election is not in furtherance of our democracy. 

However, that is not the case here.   In no court case, in no appeal to their supporters, has anyone connected with Trump's efforts to overturn the results of the election brought forth one shred of evidence of widespread fraud.  Wild conspiracy theories, yes, but no evidence.  

Despite the lack of evidence, three contested states obliged the President and conducted recounts or audits.   The results were unchanged; no fraud, no missing ballots, were found.   And in two of those states, the Secretary of State that was responsible for overseeing this examination was a Republican.   Every court that heard Trump's complaint of fraud smacked the complaint down, often quite forcefully, and many of the judges who so spoke were Trump appointees. 

Yet in the face of this universal proof and judgment by the responsible officials that Trump's allegations were baseless, more that 138/121 Republican Representatives, roughly 60% of  the Republican caucus, and 8 Senators voted to object, to not accept, the votes from Pennsylvania and Arizona, respectively. 

They must  be held accountable.   They must be censured, at a minimum.   Really they should be impeached, but that won't happen if for no other reason than the number of people to be charged is huge and the result would be extremely disruptive to the work of Congress. 

And what about those Congressmen who actively engaged in urging the crowd last Wednesday to commit violence against the government?  As reported in The New York Times, Rep. Mel Brooks told the crowd before going to the capitol that they should "kick ass" and urged them to "fight for America. "  Representatives Taylor Greene and Boebert, speaking before the surging crowd, both referred to the day as "Republicans' 1776 moment."  All three were inciting the crowd to commit violence against the government, in violation of their oath of office. 

They and any other Republican congressmen who engaged in such statements should be impeached.   What they did amounted to treason. 

Now it is also reported that some Republican Congressmen may have led insurgent groups on tours of the capitol the day before the riot.   This allegation is now under investigation.   If found to be true, they should also be impeached for aiding and abetting the insurrection.   At a minimum they must be censured. 

It is a sad day for our democracy when elected members of Congress actively engage in the destruction of our democracy.   It is all too scarily close to the action of the Nazis as they rose to power legitimately through the democratic electoral process and simultaneously engaged in violence and sabotage to destabilize the government. 

Have They No Shame?

What can one say to the news that twelve Republican Senators now plan to contest the electoral college vote in various states.   Unfortunately, the only realistic things is to face the facts and say that there is little hope of our country returning to any semblance of political normalcy in the coming years. 

Despite all the audits, recounts, court cases, and Barr's Department of Justice finding that there was no widespread fraud.   Despite the President's allies not coming up with a shred of evidence to back any of their claims.   Despite this, 12 Senators plan to back this travesty. 

One of the latest reasons given for their positions is that polls show that a large percentage of Republicans think that the election was rigged.   And that mere thought, which originates with the President's baseless claims and a chorus of right-wing pundits, is felt by these Senators to justify not accepting the election results and calling for yet another audit. 

Since their announcement, The Washington Post  revealed that a Trump conversation this past Saturday with the Georgia Secretary of State was taped.   In that conversation he asked that the Secretary "find" 11,780 votes.   He also repeated various conspiracy theories to which the Secretary said they've all been shown to be false.   He said to Trump that the problem is that he is looking at data which is not valid.

This is probably the most shameful moment in American politics.   Even more shameful than the McCarthy hearings.   Winning the two Georgia Senate races becomes even more critical now for President-elect Biden presidency. 

There is increasing talk of the need to impeach Trump again and this time convict him.   Even though he will no longer be in office, this is critically important because it will show that a President is not above the law and that he will be made to account for his actions, even if no longer in office.   It will also remove all future emoluments of having been President from Trump and prevent him from running for President again in the future. 

Yes, this will enrage his supporters.   But they are enraged anyway.   And this is necessary for the health of our democracy. 

And by the way, that commission that Republican Senators wanted to establish to do a 10-day audit of contested states.   That should be established by the new Congress to show once and for all that there was no fraud and that Biden is the legitimate President. 

The Right-wing Press, Alternative Facts, and the FCC

If you look at The New York Time's "Coronavirus World Map" (December 25), you will be surprised to learn the the U.S. has the second worst record of per capita daily cases.  Only Lithuania has a worse record. 

How sad that this great country, home to one of the finest medical systems in the world, is experiencing such devastation. 

And why is this happening?  The answer falls clearly on the shoulders of President Trump.   Through a combination of well-documented early inaction, a disastrous stand on not wearing masks, turning epidemiological controls into attacks on people's Constitutional rights, and lack of a coordinated federal policy, we are approaching 20,000,000 cases and have surpassed 340,000 deaths. 

Why is it that half the country doesn't seem to realize this.   The answer is that they listen to right-wing news media, who have aided and abetted this crime against the nation. 

What is it about the right-wing media?  How could they be so callous about what is happening throughout the country that they continue to support Trump in his dismissal of the virus as something not serious.   This is not a question of free speech, of opinion.   This is a question of using the public air waves to disseminate lies, misinformation in the current parlance, that threaten the well-being of our country.   

Stations, whether radio, TV, or cable, receive a license to broadcast from the Federal Communication Commission.   Station licensees, as the trustees of the public’s airwaves, must use the broadcast medium to serve the public interest.

The FCC gives stations broad leeway in deciding how it serves that interest.  It will generally not intervene in the exercise of journalistic judgment or opinion.   

"However, as public trustees, broadcast licensees may not intentionally distort the news. The FCC has stated that 'rigging or slanting the news is a most heinous act against the public interest.' "

"The Commission will investigate a station for news distortion if it receives documented evidence of rigging or slanting, such as testimony or other documentation, from individuals with direct personal knowledge (italics supplied) that a licensee or its management engaged in the intentional falsification of the news. Of particular concern would be evidence of the direction to employees from station management to falsify the news. However, absent such a compelling showing, the Commission will not intervene."  This quote is from the FCC manual. 

In the current situation regarding reporting on the pandemic, there has been ample evidence that Fox and other news outlets have done precisely that.   They have intentionally distorted the facts, scientific and other, regarding the pandemic.   Further, I believe that there has been reported direction from management to falsify or distort the news. 

The concept of "alternative facts" that was dreamed up by Kellyanne Conway does not provide cover.   Or at least should not.   Again, this is not a matter of someone having a different opinion on something; something where, as lawyers say, reasonable men may differ.  These are made-up facts; a less-offensive term than falsehoods.

By providing alternative facts to the public, right-wing cable stations are in fact misleading the public, they are distorting the facts on a matter of the gravest national public health interest.   And it is their intention to mislead; they know that they are distorting the facts. 

Obviously with Trump appointees as chair and the majority of the FCC, no complaint regarding this issue would have seen the light of day.   They consider alternative facts, facts. 

But in June 2021, Biden will be able to appoint a Commissioner, giving the Democrats a majority.  With a Democratic chair and majority, hopefully someone will come forward that meets the high bar set by the FCC.   Someone with the required direct personal knowledge, i.e.  a whistle blower possessed of internal documents, and make a well-documented complaint regarding the handling of news of the pandemic.   If proven, the result should be that, at a minimum, a substantial fine should be imposed.   But this case is so egregious that revocation of licenses may be appropriate.

If such a person does not come forward, this travesty that has become news reporting will continue unabated, unchastised.   Another example of the negative impact is the near-fanatacism with which liberals protect free speech.   Whether it's the issue of hate speech or something as gross as the misleading "facts" that have been presented by right-wing media recently, the absolutism of free speech advocates is misplaced.   

As I've stated before in posts, the 1st Amendment right, as with all rights, is not absolute.  There are already various exceptions carved out by the Supreme Court to protect the public from immediate and serious harm, such as false advertising, obscenity, and speech that incites to imminent lawless action.   I agree that the requisite intent to mislead is of critical importance, but there are ways of proving that without a whistle-blower. 

What Will Happen When Trump's Defeat Becomes Final?

During the election, there were times when I shuddered in fear.   I read of roving gangs, for that's what they were, of Trump supporters in cars and trucks stopping traffic on the Garden State Parkway, the Mario Cuomo bridge over the Hudson, various highways crisscrossing the New York City region, and trying to force a Biden-Harris campaign bus off an interstate highway in Texas. 

It reminded me of dark scenes from the movie "Mad Max."  Of roving gangs of hoodlums terrorizing ordinary people in the desolate post-apocalyptic world with their brute power. 

I wondered will this ultimately be the legacy of Donald Trump's presidency?  Even if a small percentage of Trump supporters would be of a mind to engage in such activity, the result would be, as Trump prophesied, bedlam.   It would severely damage our democracy. 

Now as the final denouement of Trump's defeat gets ever closer and his options to reverse the will of the people disappear, he has not changed his tune.   He continues to say that he won by a landslide and that if just some wise people would have the courage to acknowledge the facts, meaning the Supreme Court, he would win.   His latest argument is that the fraud can't be seen because local officials loosened the process so that the fraud was not discoverable. 

Meanwhile, his base of supporters is getting ever-more angry.   Threats are being received by officials, Republican and Democrat alike.   In Arizona, the Republican Party is trashing it's own leaders, the governor and the speaker of the House, for telling the facts of Trump's defeat like it is.   The same is happening in Georgia.   The Arizona Republican Party even sent out a call for people to die fighting for the cause.   Republican officials across the country, even attorney generals, not just his voter base, continue to support Trump's baseless claims. 

Now Trump is trying to get Republicans in Congress to agree to not accept the vote of the electoral college.   His last chance, on January 6.  Senator McConnell after finally acknowledging Biden as President-Elect has urged his Senate colleagues not to join the effort.

What happens when the last nail is driven in the coffin?   When there is no escape for Trump and his supporters from his defeat?

There was an op-ed piece in The New York Times after the election saying that the most dangerous time of our history, for our democracy, will be in the coming weeks.   And I think the writer was right.   

Who will be able to quiet the Trumpist masses when Trump goes down flailing?  It's beyond hope that the Trump loyalist pundits will take a positive role at long last.    And his followers have no use for past Republican leaders, so their words will be useless.   

Some leaders of the Evangelical church might make a difference if they told their followers, Trump supporters, that regardless how aggrieved they feel, that the results of the election must be respected, that law and order must be kept, that they should harm no one in their grief.   Will organized religion finally rise to the occasion, or will it once again fail out of the human weakness of its leaders?

I do not believe in the God of our forefathers, in the God of the Old Testament, but at this moment, I pray to that God that he protect our country from this dark eventuality.   (For clarification, I do believe in the God that is the divine essence that is within each of us; yes, including Trump supporters.   Unfortunately, most people are unaware of and unconnected with their divine essence.)

Invoke the 25th Amendment

If Vice President Pence and the Cabinet were men and not puppets, if they had any ethics or commitment to American democracy, they would invoke the 25th Amendment, Section 4, and free our country from President Trump.   Trump clearly is "unable to discharge the powers and duties of his office."  The peaceful transfer of power being one of the most important duties of an American president. 

This would certainly throw the Republican Party and its voting base up for grabs.   But the fact that Trump loyalists took such a move would at least have a chance to quiet the Trump base and result in a peaceful transition to the Biden presidency. 

From what we have seen during the past month since the election, when Trump's defeat becomes final, it will not be accepted gracefully.