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yesEmily BirnbaumNone
July 29, 2020
Only a few minutes after the Big Tech CEO hearing was slated to start, President Donald Trump made sure to offer his input for the committee.
"If Congress doesn't bring fairness to Big Tech, which they should have done years ago, I will do it myself with Executive Orders," Trump tweeted. "In Washington, it has been ALL TALK and NO ACTION for years, and the people of our Country are sick and tired of it!"
Trump has threatened to take unilateral action against the top tech companies many times before. But the warning carries fresh gravity on the heels of the White House's social media executive order, which took on the tech industry's legal liability protections.
Emily Birnbaum
Emily Birnbaum ( @birnbaum_e) is a tech policy reporter with Protocol. Her coverage focuses on the U.S. government's attempts to regulate one of the most powerful industries in the world, with a focus on antitrust, privacy and politics. Previously, she worked as a tech policy reporter with The Hill after spending several months as a breaking news reporter. She is a Bethesda, Maryland native and proud Kenyon College alumna.
Politics
'Woke tech' and 'the new slave power': Conservatives gather for Vegas summit
An agenda for the event, hosted by the Claremont Institute, listed speakers including U.S. CTO Michael Kratsios and Texas Attorney General Ken Paxton.
The so-called "Digital Statecraft Summit" was organized by the Claremont Institute. The speakers include U.S. CTO Michael Kratsios and Texas Attorney General Ken Paxton, as well as a who's-who of far-right provocateurs.
Photo: David Vives/Unsplash
January 16, 2021
Emily Birnbaum ( @birnbaum_e) is a tech policy reporter with Protocol. Her coverage focuses on the U.S. government's attempts to regulate one of the most powerful industries in the world, with a focus on antitrust, privacy and politics. Previously, she worked as a tech policy reporter with The Hill after spending several months as a breaking news reporter. She is a Bethesda, Maryland native and proud Kenyon College alumna.
Issie Lapowsky (@issielapowsky) is a senior reporter at Protocol, covering the intersection of technology, politics, and national affairs. Previously, she was a senior writer at Wired, where she covered the 2016 election and the Facebook beat in its aftermath. Prior to that, Issie worked as a staff writer for Inc. magazine, writing about small business and entrepreneurship. She has also worked as an on-air contributor for CBS News and taught a graduate-level course at New York University’s Center for Publishing on how tech giants have affected publishing. Email Issie.
January 16, 2021
Conservative investors, political operatives, right-wing writers and Trump administration officials are quietly meeting in Las Vegas this weekend to discuss topics including China, "woke tech" and "the new slave power," according to four people who were invited to attend or speak at the event as well as a copy of the agenda obtained by Protocol.
The so-called "Digital Statecraft Summit" was organized by the Claremont Institute, a conservative think tank that says its mission is to "restore the principles of the American Founding to their rightful, preeminent authority in our national life." A list of speakers for the event includes a combination of past and current government officials as well as a who's who of far-right provocateurs. One speaker, conservative legal scholar John Eastman, rallied the president's supporters at a White House event before the Capitol Hill riot earlier this month. Some others have been associated with racist ideologies.
<p>Government officials listed on the agenda include United States Chief Technology Officer Michael Kratsios and Texas Attorney General Ken Paxton, who is leading a multi-state antitrust lawsuit against Google and is currently <a href="https://www.texastribune.org/2020/11/17/texas-ken-paxton-fbi/" rel="noopener noreferrer" target="_blank">under federal investigation</a>. A source familiar with Kratsios' planned remarks said he intended to speak about artificial intelligence and China. Also on the agenda: Josh Steinman, the White House National Security Council's recently departed senior director for cyber, who now describes himself as the founder of a "stealth startup" on LinkedIn. </p><p><div class="ad-tag"><div class="ad-place-holder" data-pos="1">
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</div></p><p>Newly confirmed FCC Commissioner Nathan Simington was also listed on the agenda, but he told Protocol he did not end up attending. "Despite initial plans to do so, I did not attend or otherwise participate in the Claremont event this weekend, and I did not prepare or submit remarks," Simington said. </p><p>The event is happening as Las Vegas <a href="https://lasvegassun.com/news/2021/jan/13/las-vegas-hospital-capacity-crisis-covid-19-soar/" rel="noopener noreferrer" target="_blank">experiences a spike in COVID cases</a>.</p><p>Claremont Institute President Ryan Williams refused to answer Protocol's questions about "the new slave power" panel, what COVID-19 safety protocols are in place during the in-person gathering or the range of speaker backgrounds on the agenda.</p><p>"The Claremont Institute has been a leading voice against political censorship by the Big Tech oligarchs, and we have no interest in commenting on an obvious hatchet job by a publication so clearly beholden to the pieties of Silicon Valley," Williams said in an email to Protocol. "Your questions are riddled with false premises, but we welcome the fire."</p><p>The list of speakers included several people with controversial pedigrees. One speaker, blogger Curtis Yarvin, otherwise known as Mencius Moldbug, has written that there is "no question that biological differences made Africans better slaves than indigenous Americans" because they were less susceptible to tropical diseases. He also once <a href="https://www.unqualified-reservations.org/2007/11/why-i-am-not-white-nationalist/" rel="noopener noreferrer" target="_blank">wrote</a> in a blog post, "although I am not a white nationalist, I am not exactly allergic to the stuff." Yarvin was listed to speak on the panel about "the new slave power," along with Michael Anton, former deputy national security adviser under President Trump, who recently wrote an essay in Claremont's The American Mind publication suggesting that Democrats were "openly talking about staging a coup." </p><p><div class="ad-tag"><div class="ad-place-holder" data-pos="2">
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</div></p><p>Another speaker on the agenda, Adam Candeub, is the current acting head of the National Telecommunications and Information Administration. Previously, as a lawyer, he <a href="https://www.motherjones.com/politics/2020/05/trumps-commerce-department-just-hired-a-lawyer-with-ties-to-white-nationalists/" rel="noopener noreferrer" target="_blank">represented</a> white nationalist Jared Taylor in a lawsuit against Twitter. Eastman recently retired from his position as a law professor at Chapman University amid an <a href="https://www.ocregister.com/2021/01/13/controversial-law-professor-john-eastman-retires-from-chapman-university/" rel="noopener noreferrer" target="_blank">uproar</a> over a speech he gave alleging election fraud at the pro-Trump rally preceding the Capitol attack on Jan. 6.</p><p>One of the final speakers listed on the agenda, Soylent founder Rob Rhinehart, <a href="https://www.nytimes.com/2020/10/28/technology/politics-tech-start-ups-culture-war.html?" rel="noopener noreferrer" target="_blank">made waves earlier this summer</a> with a 5,300-word blog post about why he <a href="https://www.robrhinehart.com/why-i-am-voting-for-kanye-west/" rel="noopener noreferrer" target="_blank">supported hip-hop artist Kanye West</a> for president. "I am so sick of politics. Politics are suddenly everywhere," he wrote, before jumping into a lengthy post about Joe Biden, why the media is "actually evil" and the importance of biofuels. </p><p>One attendee said they had not been given any information on who would be speaking as of midday Friday, hours before the event was set to kick off, and Claremont Institute did not appear to be promoting the event on social media Saturday as the first panels began. "Maybe they're trying to keep it under wraps," the attendee said. </p><p><div class="ad-tag"><div class="ad-place-holder" data-pos="3">
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</div></p><p>The attendee said they understood that the tenor of the weekend would be "very critical of tech, very pro some type of intervention."</p><p>"There's going to be some discrepancy and debate around what intervention looks like," the attendee said.</p><p>The other topics on the agenda include a panel on "restoring law" and a fireside chat titled, "What happened?" The summit takes place 10 days after a violent mob of Trump supporters breached the Capitol Hill complex, resulting in five deaths and forcing a reckoning within the Republican Party over its alignment with Trump and right-wing conspiracy theorists.</p>
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Emily Birnbaum ( @birnbaum_e) is a tech policy reporter with Protocol. Her coverage focuses on the U.S. government's attempts to regulate one of the most powerful industries in the world, with a focus on antitrust, privacy and politics. Previously, she worked as a tech policy reporter with The Hill after spending several months as a breaking news reporter. She is a Bethesda, Maryland native and proud Kenyon College alumna.
Politics
Silicon Valley is cracking down on Congress
Big Tech's pause on PAC contributions highlights how powerful it's become.
Democrats are particularly frustrated by Facebook, Google and Microsoft's decision to halt PAC contributions altogether, rather than targeting particular Republican lawmakers.
Photo: Tobias Hase/Getty Images
January 13, 2021
Emily Birnbaum ( @birnbaum_e) is a tech policy reporter with Protocol. Her coverage focuses on the U.S. government's attempts to regulate one of the most powerful industries in the world, with a focus on antitrust, privacy and politics. Previously, she worked as a tech policy reporter with The Hill after spending several months as a breaking news reporter. She is a Bethesda, Maryland native and proud Kenyon College alumna.
January 12, 2021
Congress has failed to act on every opportunity it had to seriously rein in the power of Big Tech over the last several years. Negotiations over a federal privacy bill fell apart last year, antitrust reform hit partisan headwinds and every debate over content moderation since 2016 has devolved into a theatrical yelling match that left the parties more divided over solutions than ever.
And now, the bigger-than-ever Silicon Valley is flexing its muscles with impunity as companies cut off violent extremists and wield the power of their political donations, acting more like a government than the U.S. government itself. They're leaving Republicans and Democrats more frustrated and powerless than ever in their wake.
<p>"There's a cultural problem in Silicon Valley — they want to be the government," said one Democratic House aide. </p><p>Google, Facebook and Microsoft this week became the latest corporations to announce they are suspending contributions from their political action committees following last week's violent riots on Capitol Hill, which were incited in part by President Trump and a cadre of Republicans who spent weeks falsely claiming the presidential election had been stolen. Meanwhile, tech companies like Amazon, Airbnb and Intel said they are suspending campaign contributions specifically to the Republicans who voted against certifying the results of the U.S. election, making it clear that those lawmakers bear some responsibility for the chaos and violence. </p><p><div class="ad-tag"><div class="ad-place-holder" data-pos="1">
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</div></p><p>"Given the unacceptable attempt to undermine a legitimate democratic process, the Amazon PAC has suspended contributions to any Member of Congress who voted to override the results of the U.S. presidential election," an Amazon spokesperson said on Monday. "We intend to discuss our concerns directly with those members we have previously supported and will evaluate their responses as we consider future PAC contributions."</p><p>It's an amazing display of power from an industry that has shied away from politics, and especially the appearance of partisanship, for years. The tech companies' PACs deliberately contribute to <a href="https://www.protocol.com/tech-company-pacs-2019-2020" target="_self">both Republicans and Democrats</a> equally, but the events of this past week have forced corporations to stake out stances that they never would have before, drawing out the limits of how far they will go in the name of neutrality. </p><p>"We've never seen anything like this," said Fred Wertheimer, president of Democracy 21, which advocates for campaign finance reform. "This is unique. It's the reaction to an effort to overturn an election and basically violate the fundamental rules of our democracy." He added: "We will see whether it's real or temporary."</p><p><div class="ad-tag"><div class="ad-place-holder" data-pos="2">
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</div></p><p>The companies are taking a gamble that could land them in hot water as Democrats assume control of the House, Senate and White House. Facebook, Google and Microsoft's approach in particular has rankled Democrats, who say they're being punished for Republicans' sins as companies temporarily pause all of their PAC spending, rather than contributions to the particular lawmakers.</p><p>"Instead of holding the guilty responsible, their decision to treat the guilty and innocent the same is the type of political calculus that led us here," Democratic Rep. Jan Schakowsky said in a statement. She saved her most pointed ire for Facebook, who she has sparred with as chair of the House Committee on Energy and Commerce consumer protection subcommittee: "Most cowardly and despicable is Facebook, who is unwilling and unable to confront their role in fostering the hatred that led to this action."</p><p>A number of corporations have temporarily suspended PAC contributions altogether, but aides told Protocol that Democrats have been particularly aggrieved by Big Tech's total pullback.</p><p>"It's like 'all lives matter,'" said the Democratic congressional aide. The aide said the blame lies with Republican lobbyists in the government affairs shops of the companies, most prominently Facebook. "I know the decisions at those companies were all made by people whose loyalty is to the GOP and not to the United States, nor their companies. That's been the case for a long time, this is just laying it bare for everyone to see." </p><p><div class="ad-tag"><div class="ad-place-holder" data-pos="3">
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</div></p><p>The companies that paused their donations this week made it clear that it's a temporary decision as they rethink and reconsider their previous political contribution tactics. Margaret O'Mara, a professor at the University of Washington who focuses on the history of Silicon Valley, said it's likely the companies will begin spending again within a few months — just as Democrats begin bearing down in their efforts to regulate the platforms.</p><p>"The large tech companies are among the biggest spenders in D.C. now," O'Mara said. "That's not going to go away. They're going to be working very hard to make sure that regulation is something that's going to work for them and work for their business." </p><p>Republicans and Democrats for years have made noise about the growing power of the tech companies. But now, in the absence of any regulation, they face a situation in which those companies are larger and more powerful than ever, with the ability to make decisions that affect millions of Americans and every member of Congress without any oversight. And it's yet to be seen if Congress will finally do something about it. </p>
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Emily Birnbaum ( @birnbaum_e) is a tech policy reporter with Protocol. Her coverage focuses on the U.S. government's attempts to regulate one of the most powerful industries in the world, with a focus on antitrust, privacy and politics. Previously, she worked as a tech policy reporter with The Hill after spending several months as a breaking news reporter. She is a Bethesda, Maryland native and proud Kenyon College alumna.
Politics
Trump wants to strike back at Big Tech. There’s not much he can do.
He's already exhausted most of his options.
Trump wants to spend his final week as president getting back at Twitter and Facebook for suspending him.
Photo: Oliver Contreras/Getty Images
January 12, 2021
Emily Birnbaum ( @birnbaum_e) is a tech policy reporter with Protocol. Her coverage focuses on the U.S. government's attempts to regulate one of the most powerful industries in the world, with a focus on antitrust, privacy and politics. Previously, she worked as a tech policy reporter with The Hill after spending several months as a breaking news reporter. She is a Bethesda, Maryland native and proud Kenyon College alumna.
January 11, 2021
President Trump has been telling anyone who will listen that he wants to do something to strike back at Big Tech in the final days of his presidency, promising a "big announcement" soon after Twitter permanently banned him last week.
In a statement that Twitter has taken down multiple times, Trump hammered usual targets — Section 230, the "Radical Left" controlling the world's largest tech platforms — and pledged he would not be "SILENCED." But at this point, as he faces a second impeachment and a Republican establishment revolting against him in the waning days of his presidency, there's likely very little that Trump can actually do that would inflict long-lasting damage on tech companies.
<p>With a little more than a week left in his presidency, and facing existential questions about the role that he played in inciting violence in the nation's capitol last week, Trump and top Republicans have every incentive to change the conversation to target Big Tech, their favorite bogeyman. But any efforts would likely amount to performative theatrics that do nothing to wear down the power of the tech platforms, and simply serve to distract from the conversation about whether the president should be immediately removed from office after helping to incite a riot. </p><p><div class="ad-tag"><div class="ad-place-holder" data-pos="1">
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</div></p><p>"I don't think he has any power," said one Republican technology adviser who is sympathetic to the president's efforts. "It's not like he has any friends right now."</p><p>Rachel Bovard, a Capitol Hill veteran and senior adviser for the right-wing Internet Accountability Project, said she would like to see the White House act aggressively against the tech companies, but she's unconvinced the president "can do anything at this point." President-elect Joe Biden could immediately reverse most moves from Trump after his inauguration, which is nine days away. </p><p>"Any executive order he puts out will be undone, there's no more regulatory road he can go down with the [Federal Communications Commission]," Bovard said. "I don't know what else can be done." </p><p>The Trump administration has already launched significant antitrust investigations and lawsuits into the major platforms, including Google and Facebook. The president signed a social media executive order that went largely ignored by the FCC, Federal Trade Commission and executive branch. (FCC Chairman Ajit Pai <a href="https://www.google.com/search?q=pai+protocol.com&oq=pai+protocol.com&aqs=chrome..69i57j69i60.8241j1j4&sourceid=chrome&ie=UTF-8" rel="noopener noreferrer" target="_blank">confirmed to Protocol</a> last week that he would not move forward with a rule-making on Section 230, one of the executive order's central requests.) And Trump lost his political clout on Capitol Hill virtually overnight last week: As Democrats took back the Senate, Republican senators <a href="https://www.nytimes.com/2021/01/11/us/politics/trump-politicians-donations-degrees.html" rel="noopener noreferrer" target="_blank">condemned his involvement</a> in the riots on Capitol Hill, which resulted in five deaths. </p><p><div class="ad-tag"><div class="ad-place-holder" data-pos="2">
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</div></p><p>Trump won't be able to push through a Section 230 repeal at the eleventh hour as his top allies in Congress are <a href="https://www.theguardian.com/us-news/2021/jan/10/capitol-attack-republican-senators-josh-hawley-ted-cruz-face-resign" rel="noopener noreferrer" target="_blank">enduring their own controversies</a> over their refusal to certify the Electoral College vote. Though Trumpworld advisers, including Trump's former campaign manager Brad Parscale, are newly <a href="https://twitter.com/parscale/status/1347723758467997699?s=20" rel="noopener noreferrer" target="_blank">calling for antitrust reform</a> to beat back the unprecedented power of the platforms, serious efforts to reform the antitrust laws hit roadblocks from Republicans, including Trump ally Rep. Jim Jordan, last year. </p><p>Trump is expected to make a public statement about Big Tech this week, two sources familiar with conversations at the White House told Protocol, though it's unclear what the medium or message would be. He's been suspended from Facebook, Twitter and many other social networks. (There's always <a href="https://twitter.com/Nash076/status/1348301387944370177" rel="noopener noreferrer" target="_blank">cable news</a>, though.) </p><p>There's a number of levers he could try to pull, experts said. After all, he is still the most powerful political leader in the world, with access to a range of unilateral executive powers that he's tapped throughout his presidency. </p><p>It's within his power to sign an executive order barring federal agencies from using Twitter and Facebook, for example, though agencies have <a href="https://www.vox.com/recode/2020/5/28/21273878/trump-executive-order-twitter-social-media-section-230-free-speech-implications" rel="noopener noreferrer" target="_blank">largely ignored</a> the last social media executive order's request to pull back their ad spending from major social media platforms. </p><p>"The main power at his disposal is still executive orders," said Daniel Castro, vice president of the Information Technology and Innovation Foundation, a tech-funded think tank. But any effort to pull federal agencies off of social media likely would prove a bigger headache for the government than for the platforms. "It would be disruptive, it would cause confusion, it would be trending on Twitter, but it wouldn't cause any permanent impact, especially because the Biden administration would probably ask them just to undo those changes," Castro said. </p><p><div class="ad-tag"><div class="ad-place-holder" data-pos="3">
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</div></p><p>Trump could tap his Justice Department to bring a splashy lawsuit against Twitter or Facebook for censoring him. That would've been easier before former Trump loyalist Attorney General Bill Barr <a href="https://www.cnn.com/2020/12/14/politics/william-barr-out-as-attorney-general/index.html" rel="noopener noreferrer" target="_blank">resigned</a> amid escalating tensions with the White House last month. And a lawsuit against any of the tech platforms would immediately face the near-insurmountable roadblock of <a href="https://www.protocol.com/tag/section-230" target="_blank">Section 230</a>. </p><p>A lawsuit "wouldn't be quick," said Ellen Goodman, a professor at Rutgers University who specializes in information policy law. "And as long as they have 230 immunity, it won't succeed." </p><p>Trump could model a lawsuit against the platforms after PragerU's suit against YouTube, in which the conservative group <a href="https://www.natlawreview.com/article/youtube-schools-prageru-lanham-act-censorship-case" rel="noopener noreferrer" target="_blank">claimed</a> that YouTube violated the Lanham Act, which protects against misleading advertising, when it filtered out PragerU's videos. That attempt was <a href="http://v" rel="noopener noreferrer" target="_blank">shot down by a judge</a> who said YouTube, a private company, isn't bound by the First Amendment and can therefore remove any content that its policies deem offensive. </p><p>There's a nuclear option that Trump could turn to, which some policymakers have been warning about for years: Under Section 706 of the Communications Act of 1934, the president is empowered to to shut down or take control of "any facility or station for wire communication" if he declares that there is a threat of war in the U.S.</p><p><div class="ad-tag"><div class="ad-place-holder" data-pos="4">
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</div></p><p>"They could claim Parler is being blocked from Google's service and that's a disruption," said Berin Szóka, president and founder of TechFreedom, a tech think tank. "It has not been used, so it's a little hard to know exactly how far the president could go."</p><p>But there is no indication that Trump or his advisers have considered that option, or any other aggressive move that could actually harm the tech platforms, especially beyond Jan. 20. </p><p>Trump has signaled that he's interested in setting up his own social media network to compete with the platforms that booted him this week. That long-shot effort would likely require enormous amounts of money, time and resources, especially given that he'd likely have to own every part of the internet stack that his network would rely on to ensure it isn't kicked offline. "Trump would have to have a cable company, his own web servers, his own DNS provider, his own version of Cloudflare," Goodman said. </p><p>Trump is the most powerful politician in the world, but ultimately, he may be no match for the tech platforms. </p>
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Emily Birnbaum ( @birnbaum_e) is a tech policy reporter with Protocol. Her coverage focuses on the U.S. government's attempts to regulate one of the most powerful industries in the world, with a focus on antitrust, privacy and politics. Previously, she worked as a tech policy reporter with The Hill after spending several months as a breaking news reporter. She is a Bethesda, Maryland native and proud Kenyon College alumna.
We need Section 230 now more than ever
For those who want to see less of the kind of content that led to the storming of the Capitol, Section 230 may be unsatisfying, but it's the most the Constitution will permit.
Even if certain forms of awful speech could be made unlawful, requiring tech sites to clean it up would be even more constitutionally difficult.
Photo: Angel Xavier Viera-Vargas
January 11, 2021
Berin Szóka (@BerinSzoka) is president of TechFreedom (@TechFreedom), a technology policy think tank in Washington, DC.
January 11, 2021
Many conservatives are outraged that Twitter has banned President Trump, calling it "censorship" and solemnly invoking the First Amendment. In fact, the First Amendment gives Twitter an absolute right to ban Trump — just as it protects Simon & Schuster's right not to publish Sen. Josh Hawley's planned book, "The Tyranny of Big Tech."
The law here is clear. In 1974, the Supreme Court said newspapers can't be forced to carry specific content in the name of "fairness," despite the alleged consolidation of "the power to inform the American people and shape public opinion." The Court had upheld such Fairness Doctrine mandates for broadcasters in 1969 only because the government licenses use of publicly owned airwaves. But since 1997, the Court has held that digital media enjoys the same complete protection of the First Amendment as newspapers. "And whatever the challenges of applying the Constitution to ever-advancing technology," wrote Justice Antonin Scalia in 2011, "'the basic principles of freedom of speech and the press, like the First Amendment's command, do not vary' when a new and different medium for communication appears."
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</div></p><p>Republicans battled the Fairness Doctrine for decades, and for good reason: The Kennedy and Johnson administrations really <em>did </em><a href="https://www.cato.org/policy-report/march/april-2020/how-jfk-censored-right-wing-radio" rel="noopener noreferrer" target="_blank">weaponize</a> the FCC to keep conservatives off the airwaves. Republicans' <a href="https://prod-cdn-static.gop.com/media/documents/DRAFT_12_FINAL%5B1%5D-ben_1468872234.pdf" rel="noopener noreferrer" target="_blank">2016 platform</a> (recycled for 2020) blasted the (by then, long-dead) Fairness Doctrine, demanding "free-market approaches to free speech unregulated by government." </p><p>Sadly, most elected Republicans have since abandoned those free market principles as they have increasingly come to see themselves as the victims of censorship by Big Tech. Even the removal of outright bigots like Richard Spencer and other neo-Nazis has been <a href="https://www.wsj.com/articles/dont-let-google-get-away-with-censorship-11565132175" rel="noopener noreferrer" target="_blank">cited</a> in august outlets like The Wall Street Journal without <a href="https://twitter.com/BerinSzoka/status/1159114731258568704" rel="noopener noreferrer" target="_blank">considering</a> exactly <em>who</em> was banned and <em>why</em>. The storming of the Capitol should make clear once and for all <em>why</em> all major tech services ban hate speech, misinformation and talk of violence: Words can have serious consequences — in this case, five deaths (plus a Capitol officer's suicide days later).</p><p>MAGA Republicans initially struggled to reconcile their "Fairness Doctrine for the Internet" with conservatives' past hardline defense of the First Amendment. They quickly learned how to obfuscate their hypocrisy. </p><p>First, they've posed as the "real defenders of free speech" — as if the First Amendment gave every American the right to an audience on someone else's property. In reality, the First Amendment prohibits compelled speech and forced association — a point conservatives trumpeted when it was bakers refusing to make cakes for same-sex weddings.</p><p><div class="ad-tag"><div class="ad-place-holder" data-pos="2">
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</div></p><p>Second, they claim that websites have no First Amendment right to block speech they find abhorrent because their centrality to public discourse makes them "public fora" just like town squares, where the First Amendment guarantees everyone a right to speak. But the Supreme Court, led by Justice Brett Kavanaugh, emphatically <a href="https://casetext.com/case/manhattan-community-access-corp-v-halleck?tab=keyword&jxs=us,1cirapp,2cirapp,3cirapp,4cirapp,5cirapp,6cirapp,7cirapp,8cirapp,9cirapp,10cirapp,11cirapp,dccirapp,fedcir&sort=relevance&type=case&resultsNav=false" rel="noopener noreferrer" target="_blank">rejected</a> an equivalent argument (in a case about public access cable channels) in 2019: "Merely hosting speech by others is not a traditional, exclusive public function and does not alone transform private entities into state actors subject to First Amendment constraints." In other words, the First Amendment remains a shield against government meddling in online speech, not a sword for the government to ensure "fairness."</p><p>Third, they blame Section 230 for online "censorship." Trump even cited Congress' refusal to repeal the 1996 law in his veto of defense spending (<a href="https://www.protocol.com/bulletins/house-overrides-trumps-section-230" target="_self">which Congress overrode</a>). But when sites are sued for banning users or removing content, Section 230 merely ensures that courts will quickly dismiss lawsuits that would have been dismissed anyway on First Amendment grounds — but with far less hassle, stress and expense. Multiply all those across the huge volume of online content, and websites could be deterred from trying to moderate content altogether. It's not just website operators that would suffer, it's their most <a href="https://www.vox.com/culture/21432987/trans-twitter-reddit-online-anonymity" rel="noopener noreferrer" target="_blank">vulnerable users</a> — and our overall discourse.</p><p>And that's <em>exactly </em>what MAGA Republicans are trying to do: force websites to broadcast their speech, no matter how noxious. That's why they've <a href="https://techfreedom.org/wp-content/uploads/2020/10/Letter-Big-Tech-Hearing-on-230-10.28.20.pdf" rel="noopener noreferrer" target="_blank">proposed ending</a> 230's liability shield for moderation of hate speech, misinformation, conspiracy theories, voter suppression and most foreign election interference — all real threats to our democracy that the First Amendment bars the government from doing much, if anything, about. </p><p><div class="ad-tag"><div class="ad-place-holder" data-pos="3">
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</div></p><p>In 2012, the Supreme Court <a href="https://casetext.com/case/united-states-v-alvarez" rel="noopener noreferrer" target="_blank">ruled</a> that the First Amendment protects false speech, with only narrow exceptions. The Court hinted that it might be possible to curtail false claims about election procedures and results. But the Court isn't likely to reconsider the line it <a href="https://casetext.com/case/brandenburg-v-ohio" rel="noopener noreferrer" target="_blank">drew</a> in 1969: The <em>government </em>can punish a call for violence only when it "is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." It's unclear whether Trump's speech encouraging his supporters to go to the Capitol actually met that very high bar. But, again, social media sites have a First Amendment right to take down such speech and ban him for it.</p><p>Even if certain forms of awful speech could be made unlawful, <em>requiring</em> tech sites to clean it up would be even more constitutionally difficult. It's one thing to do that with child sexual exploitation material, which is generally readily identifiable. It's quite another to make a website both judge and jury in cleaning up the speech of others. As an appeals court <a href="https://casetext.com/case/midwest-video-corp-v-f-c-c" rel="noopener noreferrer" target="_blank">said</a> in 1978, an FCC regulation holding cable operators responsible for obscenity created by public access channel users would have "subjected the cable user's First Amendment rights to decision by an unqualified private citizen, whose personal interest in satisfying the Commission enlists him on the 'safe' side — the side of suppression." </p><p><div class="ad-tag"><div class="ad-place-holder" data-pos="4">
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</div></p><p>That's why Section 230 is so vital. It enables private website operators to do what the First Amendment says the government may not: at least <em>try</em> to clean up the internet. For those who want to see less of the kind of content that led to the storming of the Capitol, Section 230 may be unsatisfying, but it's the most the Constitution will permit. Yes, we should pressure websites to do more, but without Section 230, that won't work. Simply put, we need the law more than ever.</p>
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Berin Szóka (@BerinSzoka) is president of TechFreedom (@TechFreedom), a technology policy think tank in Washington, DC.
Politics
Trump got all he needed from Twitter. Now, he still has all the power.
President Trump used Twitter to become the most powerful man in the world. Now, that power is his to keep.
Trump became the most powerful man in the world thanks to Twitter. Now that he's banned, he'll take that power with him.
Photo: Joshua Hoehne/Unsplash
January 11, 2021
Issie Lapowsky (@issielapowsky) is a senior reporter at Protocol, covering the intersection of technology, politics, and national affairs. Previously, she was a senior writer at Wired, where she covered the 2016 election and the Facebook beat in its aftermath. Prior to that, Issie worked as a staff writer for Inc. magazine, writing about small business and entrepreneurship. She has also worked as an on-air contributor for CBS News and taught a graduate-level course at New York University’s Center for Publishing on how tech giants have affected publishing. Email Issie.
January 8, 2021
On Friday night, Twitter announced that it was forever banning President Trump from the digital podium where he conducted his presidency and where, for more than a decade, he built an alternate reality where what he said was always the truth.
There are moral arguments for not doing business with the guy who provoked a violent mob to invade the U.S. Capitol, leaving several people dead. There have been moral arguments for years for not doing business with the guy who spent most of his early mornings and late nights filling the site with a relentless stream of pithy, all-caps conspiracy theories about everything from Barack Obama's birthplace to the 2020 election. There are also moral arguments against tech companies muzzling the president of the United States at all.
<p>Wherever you stand, there's a hard truth to Twitter's decision to stop doing business with Trump now: Trump has already gotten all he needs from Twitter. He's already used the platform — and the company — to become the most powerful man in the world, bending Twitter's carefully-crafted rules and dancing across its neatly-drawn lines, knowing that by virtue of his position, he'd never face repercussions. Now that he has, that power is still his to keep, and it will follow him wherever he winds up next. </p><p><div class="ad-tag"><div class="ad-place-holder" data-pos="1">
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</div></p><p>Deplatforming a controversial or even dangerous figure doesn't always work that way. Remember Milo Yiannopoulos? The conservative provocateur was credibly threatening to launch his <a href="https://www.businessinsider.com/milo-yiannopoulos-media-company-2017-4" rel="noopener noreferrer" target="_blank">own media company</a> after being removed from Twitter and resigning from Breitbart in scandal — but when Yiannopoulos lost access to these forums, he lost his audience and effectively disappeared from public view. </p><p>But the fact that Twitter's decision is unprecedented also means that no one as powerful as the president of the United States has ever been permanently banished from any social media platform. Yes, he will soon lose the office of the presidency and the <a href="https://www.protocol.com/facebook-ban-trump-democrats-power" target="_self">levers of power</a> that office holds. But Wednesday's show of force by his adherents was evidence that there are many thousands of people willing to commit open insurrection in his name. And that's just the people who could afford a ticket to D.C. in the midst of an unemployment crisis. So it goes without saying that this time will be different. </p><p>As soon as Twitter <a href="https://blog.twitter.com/en_us/topics/company/2020/suspension.html" rel="noopener noreferrer" target="_blank">broke the news</a>, explaining that Trump's most recent tweets could be interpreted as incitements to violence in the context of this week, conservative commentators announced (on Twitter, of course) that they were <a href="https://twitter.com/marklevinshow/status/1347692115615219717?s=20" target="_blank">boycotting the site</a>, and invited their followers to seek them out on Parler, the far-right echo chamber of the moment. Shortly after, Google suspended Parler from the Play Store, saying in a statement that the company was "aware of continued posting in the Parler app that seeks to incite ongoing violence in the U.S.," including threats on elected officials and plans for a militia march. Apple also <a href="https://www.buzzfeednews.com/article/ryanmac/apple-threatens-ban-parler" rel="noopener noreferrer" target="_blank">reportedly</a> threatened a ban on Parler as well, giving the company 24 hours to develop a moderation policy.</p><p><div class="ad-tag"><div class="ad-place-holder" data-pos="2">
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</div></p><p>The president also briefly breached Twitter's blockade, tweeting Friday night <a href="https://twitter.com/Kantrowitz/status/1347717828359516160?s=20" target="_blank">from the official @POTUS account</a>, which remains unaffected by the ban, to say he was looking into "building out our own platform in the near future." That tweet quickly disappeared, too. </p><p>Whether Trump takes his diatribes to Parler or Rumble or 4chan or any of the other platforms that would love his help in quadrupling their engagement, the man who was a media mogul long before he was president will find his venue. The only question is whether the mainstream media will, out of habit, morbid curiosity or concern for public safety, follow him there. If they — if we — do, the next four years will be no different from the last in terms of Trump's chokehold on the national conversation. If not, his audience might be smaller. But it won't be any less angry, any less capable of the violence that Twitter and Google and Facebook and the other tech companies that have taken action this week are afraid of. It will only be more insular, more tunnel-visioned, more removed from a world of information that Trump has said all along is fake news anyway.</p><p><div class="ad-tag"><div class="ad-place-holder" data-pos="3">
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Issie Lapowsky (@issielapowsky) is a senior reporter at Protocol, covering the intersection of technology, politics, and national affairs. Previously, she was a senior writer at Wired, where she covered the 2016 election and the Facebook beat in its aftermath. Prior to that, Issie worked as a staff writer for Inc. magazine, writing about small business and entrepreneurship. She has also worked as an on-air contributor for CBS News and taught a graduate-level course at New York University’s Center for Publishing on how tech giants have affected publishing. Email Issie.
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Bulletins
January 15, 2021 13:45 EST
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