Trump DOJ Releases Its Plans To Curb Big Tech Censorship - Is It Constitutional?

P. Gardner Goldsmith | June 19, 2020
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The Trump Justice Department Wednesday released details of its strategy to reign-in social media and search engines that have been accused of censoring conservative, libertarian, anti-war, and anti-authoritarian voices.

As Lauren Feiner and Ylan Mui report for CNBC, Attorney General Barr and the DOJ are planning a two-pronged approach, the main spear of which is a reimagining of 1996’s Communications Decency Act, Section 230 of which offers internet hosts and websites immunity from defamation suits and from state indecency prosecution if those web players act as platforms or merely edit items for “good faith” reasons.

Additionally, the DOJ appears to be prepping Antitrust suits against Google and Facebook.

Looking at the former, Feiner and Mui report:

The proposed reforms are the latest action aiming to weaken legal protection established through Section 230 of the Communications Decency Act, a 1990s-era law. The statute protects online platforms, such as Facebook, Twitter and Google’s YouTube, from being held liable for content their users post on their sites, and also allows them to moderate content in good faith. The DOJ’s proposed reforms, which would have to be passed by Congress to go into effect, would limit the broad protections Section 230 typically provides to the tech industry.

And this notice -- that the DOJ is seeking changes to the statute itself -- comes as a surprise to some observers, who read Donald Trump’s May Executive Order asking the DOJ to act on “Big Tech" censorship and saw in it rumblings that he wanted the DOJ and Federal Communications Commission to simply “reinterpret” Section 230.

The Trump Administration position is that if a platform DOES remove or flag material its owners view as objectionable, as 230 allows, the feds not only can claim the power to override that and remove their liability immunity, the DOJ and the FCC could legally punish them, and states also could go after them (based on a SCOTUS ruling called "Pruneyard Shopping Centre v. Robbins" that allows states to provide "more" protection of rights than the feds do -- the implication being that state Attorneys General can sue the Twitters and FBs of the world because they are infringing on 'free speech' -- on their own PRIVATE platforms.)

With this new approach, Barr and the DOJ appear to be backing off the original Executive Order approach and moving towards asking for legislation.

Platforms could lose immunity if they facilitate or solicit federal criminal activity, like trafficking illicit drugs. It would also create carve-outs for child exploitation, terrorism and cyberstalking, holding tech companies accountable for taking action on such content.

But that leaves a big question unanswered.

Is it appropriate to pass such legislation?

According to the Constitution, the Congress can arrange the court system above the State courts and below the US Supreme Court, so, based on the so-called “rule book”, the politicians in DC have the “power” to allow or not to allow defamation suits and breach of contract suits against Big Tech firms, making it possible that conservatives who feel mistreated by such firms can sue.

Likewise, under an originalist view of the Constitution, only CONGRESS is prohibited from writing statutes that infringe on the freedom of speech. As much as many of us might not like the idea that ANY form of government might infringe on speech, the fact is that many states had speech and religion codes and state-funded religious schools until the late 1800s. Pennsylvania was, of course, established as a religious state, and was well known for having state religious schools and local speech codes.

So the possibility that the feds would lift their hands off the states to allow their politicians to sue tech companies for speech violations conforms with the original meaning of the First Amendment.

But there’s a bit more to consider and carry away for future consideration.

For example:

The proposal also would make clear that Section 230 protections cannot be used to dispute antitrust claims, a significant statement as the Justice Department is reportedly preparing an antitrust suit against Google for as soon as this summer. Facebook has also disclosed an antitrust investigation by the Federal Trade Commission.

And that, as much as some folks who are angry at Big Tech might applaud, is a point of concern.

Simply put, there is absolutely ZERO constitutional provision for antitrust action. The 1890 Sherman Antitrust Act and its progeny are wildly unconstitutional, and predicated on an open-ended, inappropriate interpretation of the Interstate Commerce clause of the Constitution (Article One, Section Eight) that merely states Congress has the power to “regulate trade between the States” with a capital S. It was, as James Madison advised after taking notes at the Constitutional Convention, designed to act as a remedial measure to allow Congress to resolve trade disputes between states. It was not designed to give the feds omnipotent control over anything moving over state borders.

As Madison said (quoted on p. 408 of “Makers and Takers”, by Edmond Contoski) the clause was not written:

…to be used for positive purposes, but as a negative and preventative provision against injustice among the states themselves.

In other words, the US was to be a free trade zone.

And the clause was not designed to allow antitrust, at all.

The feds might take such action, but it’s important to remember what the Founders originally designed, even as one sees how easy it is to be tempted to skirt their original intent.

The debate over Big Tech shadow-banning, censorship, and double-standards continues, but it offers us opportunities to learn, even as we watch the heavy political hitters and corporations slug it out.