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Twitter CEO Jack Dorsey testifies before a Senate Intelligence Committee hearing on foreign influence operations on social media platforms on Capitol Hill in Washington, U.S., Sept. 5, 2018. (Reuters/Joshua Roberts)

Editorials

Arbitrary Power

Is it still possible to believe that the rule of law prevails in the United States of America? That concept—that we are governed by our laws and Constitution, and not the arbitrary power of dominant individuals or groups—is endangered as never before, especially after the 2020 presidential election, the loss of two Republican Senate seats in Georgia, and the alarming Jan. 6, 2021 attack on the United States Capitol during Congress’s review of the 2020 Electoral College results.
 
Not just the purportedly defeated presidential candidate, Donald J. Trump, but many of the 74 million voters who cast ballots for him believe the election was tainted by irregularities favoring the Democratic Party candidate, Joe Biden. These included changes in election rules not sanctioned by state legislatures in flagrant disregard of the Constitution; the apparent casting of ballots by ineligible, and in some cases, deceased, voters; the late-night appearance of and counting of tens of thousands of ballots after observers had been ejected from the premises; and the possibility that vote-tabulating machines had been nefariously programmed or misused to exclude Trump votes and substitute Biden ones.
 
With one voice, the mainstream media, the Democrats, and the Washington Establishment falsely proclaimed that there was “no evidence” of widespread voter fraud. Since the accusations of that fraud had not been tested in the Supreme Court, which declined to review the matter for procedural reasons, and since many state and federal legislators remained convinced of the presence of misconduct that might have influenced the election, President Trump and many of his supporters remain unpersuaded.
 
At a Washington rally on Jan. 6, Trump urged the many thousands gathered to exercise their First Amendment rights of speech and assembly, and to walk down Pennsylvania Avenue to let Congress know of their concerns. The president urged his listeners to act peacefully; meanwhile, disturbances at the Capitol resulted in a stoppage of proceedings and the loss of five lives—one protestor was shot by the Capitol Police, one policeman was injured and later died, and three protesters succumbed to prior medical conditions.
 
The mainstream media narrative swiftly became that Trump was fomenting “insurrection.” This was the justification used for the president’s lightning impeachment by the House, which occurred with no opportunity for the president to defend himself, and with no hearings. There have been reports, however, that the disturbances began and were planned long before the president spoke, and that many, if not most, of the key miscreants were not Trump supporters.
 
Just as the truth of charges of election chicanery is now in the process of being concealed, the truth of the “insurrection” accusations against Trump was apparently not an issue in persuading all of the Democrats in the House of Representatives and 10 Republican members to vote to impeach him—making him the first president in American history ever to have been impeached twice. At press date, it is unknown whether there will ever be a Senate trial on this impeachment, since it is unclear whether the Constitution permits trial on impeachment charges for a president who has left office.
 
The twin dubious assertions—that the president had fomented insurrection and that he wrongly refused to acquiesce to the view that the election had been on the up-and-up—became the justification for removing his personal accounts from Twitter, Facebook, YouTube, and other internet platforms.
 
All of this amounted to an exercise of raw and arbitrary political power never before seen in American history. Similarly blatant was the nearly simultaneous decision to remove the conservative alternative social media platform Parler (on which the president’s views had been promoted), from the servers maintained by Amazon, effectively silencing that outlet.
 
Were these acts of deplatforming legal? Even if there is now no means of controlling a rogue Congress, is there a way to stop the Silicon Valley tech giants from censoring political speech not to their taste? What about the First Amendment? The text of that Amendment, fortunately or unfortunately, only circumscribes actions of Congress, though it has been dubiously and repeatedly interpreted by the courts also to apply to acts of state and local governments.
 
Twitter, Facebook, and Amazon, though they now have greater wealth and resources than many governments combined, have no such official status. There is a line of jurisprudence that applies constitutional safeguards against some private actors when they actually wield the power of government (for example when conducting primary elections, or when using a public facility, such as the airwaves), but it would be a stretch to apply this to the internet, which is essentially a private platform.
 
There are, however, two other means of circumscribing the actions of the tech giants. One I have previously discussed in these pages (“Rethinking Big Tech’s Legal Immunity,” August 2019 Chronicles): Their behavior could be curtailed by changing their protected status under Section 230 of the Federal Communications Act, which prevents libel suits from being brought against them. The Act classifies internet platforms such as Twitter, Facebook, et al. as impartial distributors of information (like newsstands or bookstores), rather than as “publishers.”
 
Big Tech’s neutrality, is, of course, in doubt, and some conservative lawmakers, like Senator Josh Hawley (R-Mo.), have advocated for the removal of the Section 230 provisions, but such an effort is unlikely to succeed in the current left-leaning Congress, which likely approves of the silencing of views it opposes.
 
Moreover, the internet giants suppressing the former president and conservative-leaning platforms, such as Parler, have express statutory authority granted in Section 230 to remove materials inciting violence. Accordingly, they have eagerly grasped the current talking point of the Left (crucial to the president’s second impeachment) that Trump and his followers are insurrectionists, thus arguing that suppressing them is entirely permissible.
 
No court has yet tested this argument, but there is at least one lawsuit that has been filed suggesting a second means of checking abuse by internet oligarchs. Amazon Web Services, Inc. (AWS) the leading internet hosting platform (used, for example by Facebook) terminated its web-hosting contract with Parler, giving as an excuse the claim that Parler was allegedly failing to police posts for threats of violence. This termination came as Parler was becoming the most-downloaded app on Apple and Google (both of which also terminated Parler) in the wake of Twitter suspending Trump’s account.
 
Parler immediately brought suit in the federal court for the Western District of Washington State, where Amazon is headquartered. Parler asked for reinstatement of its AWS platform, without which it alleged it couldn’t continue in business, and claimed that AWS was in breach not only of its contract, but also in violation of the Sherman Antitrust Act, which prohibits any contracts in restraint of trade. Parler alleges AWS is liable for tortious interference with Parler’s business, since it was clearly favoring Twitter over Parler. In its pleading, Parler pointed out that tweets advocating “hanging Mike Pence” were apparently condoned by AWS, since it did not terminate Twitter’s platform, while ostensibly punishing Parler for abusive posts.
 
Parler also alleged in its filing that Twitter users had actually used that platform to organize and execute the very proceedings at the Capitol which ostensibly led to the violence blamed on Trump, his supporters, and platforms such as Parler.
 
At the date of this publication, there has been no resolution of Parler’s lawsuit, but it has the potential to result in a multi-million dollar judgment against AWS. This likely means that the lawsuit will eventually be settled. Parler has signaled it will soon be back online, but it appears to be having difficulty finding a hosting provider that offers the scale of service of AWS. If it can be proven that AWS, Google, and Twitter coordinated their activities against Parler, seeking to destroy it, they could also conceivably be liable for a conspiracy in restraint of trade, another violation of the United States’ antitrust laws.
 
This is by no means certain, however, and what is left of the freedom of political speech still hinges on the whims of the internet titans and their political allies.
 
In January 2021, then, the mask slipped, and we saw the snarling, demonic face of tyranny. It was not worn by the oddly-coiffed man who used to occupy the White House, but rather it leered forth from the glossy offices of Silicon Valley and Seattle.
 
There is some speculation that Trump, who was, before he became president, a hugely successful figure in reality TV, will reorient his interests, and form a new media colossus to compete with the platforms such as Facebook, Twitter, and YouTube which shut him down. Those platforms will likely lose millions of dollars in revenue when Trump’s followers leave them, and the potential for Trump to rebuild his fortune, to say nothing of his political base, is obvious.
Stephen B. Presser

Stephen B. Presser

Stephen B. Presser is the legal affairs editor for Chronicles magazine. He is the Raoul Berger Professor of Law Emeritus at Northwestern University's Pritzker School of Law, and Professor of Business Law Emeritus at the Kellogg School of Management. He is a leading American legal historian and expert on shareholder liability for corporate debts.

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