Needless to say, Antifa & the Pelosicrats are rejoicing that Trump got his mouth suspended from Twitter. Alvin and the Chipmunks are leading the Chorus. (Alvin is the name of the NYSlime Editorial Board.) Beware meeses. When the Black Cat goes around he comes around.
Let us be clear...there is at least probable cause to believe that Trump incited the disruption of an official act and that is a violation of 18 U.S. Code § 2384. It is my belief that that is also the meaning of a "high misdemeanor" and is grounds for impeaching him. But assuming Trump were to be impeached or be found guilty of a crime (neither of which has as of yet occurred) that does not mean he should be banned from Twitter.
It is one of the utter perversities of the neo-liberal system that what are in effect public spaces can be privately owned. It is no answer to this to say that Twitter is privately owned and that the Mr. Moneybags who owns it can do with it what he wills. In the first place that begs the question of what to do with public spaces that are privately owned. In the second place it is not true.
In Pruneyard Shopping Ctr. v. Robins, 447 U.S. 74 (1980), the USSC upheld a California Supreme Court ruling which prohibited private shopping centers from prohibiting passers by from exercising their free speech on the premises. Various states have followed the California court's lead on this.
Although the Supreme Court did not uphold Pruneyard under the First Amendment it has recently recognized one of the underpinnings of that case. In Packingham v. North Carolina, 582 U.S. ___ (2017), the Court held that the government may not prevent convicted criminals from using the internet (Facebook). In reaching this conclusion the Court found that social media, like Facebook and Twitter served the function of a public commons." That is a very important finding. It dispels the idea that it is sufficient to say "Nyah nyah it's my property!" Social media may be privately owned but it is not simply private property.
From this premise, the Court went on to hold that the Government (in this case North Carolina) could not prohibit a convicted sex offender from cruising the internet.... no matter what blabbidy blab about "risk" and "sacred innocent children" and "improper content" it resorted to. In a unanimous decision the court ruled "A fundamental principle of the First Amendment is that all persons have access to places where they can speak and listen, and then, after reflection, speak and listen once more ... By prohibiting sex offenders from using those websites, North Carolina with one broad stroke bars access to what for many are the principal sources for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge." Justice Kennedy added: "It is well established that, as a general rule, the Government 'may not suppress lawful speech as the means to suppress unlawful speech'."
Thus even if Trump were actually impeached or convicted the government (state or federal) could not bar him from using the internet.
The question then becomes can Twitter (a private entity) do what the government cannot do even before Trump has been convicted of anything? Can a private entity pre-emptively prohibit speech? Pre-emptively, mind you, which gives rise to what the Supreme Court has condemned as a "chilling effect" on freedom.
Packingham did not answer this question. But if you read Prunedale and Packingham together the answer ought to be a resounding NO.
Of course, the First Amendment only applies to government action. But the underlying difficulty is that private actors hold a monopoly on what is acknowledged to be a public space. If you grant Twitter or Facebook the right and the power to censor and pre-censor speech then you have basically shit-canned the exercise of free speech in the modern world.
Do you really want to do that? You may hate Trump and pedophiles, or the "alt right" or "extremist" or this or that. But these are just labels. One day you will say something that will "deeply offend" someone or make a person feel "threatened" or "assaulted." You may say something that is "beyond the pale," "devoid of reason" or that "denies a self evident (cough) fact!" blah, blah, blah. The outrages and the excuses of censors are always the same.
Just remember: first they silenced criminals, but I am not a criminal; then they silenced extremists, but I am not an extremist, then they came and silenced me. The Black Cat always makes its rounds.
Meeses would be well advised not to cheer.
Let us be clear...there is at least probable cause to believe that Trump incited the disruption of an official act and that is a violation of 18 U.S. Code § 2384. It is my belief that that is also the meaning of a "high misdemeanor" and is grounds for impeaching him. But assuming Trump were to be impeached or be found guilty of a crime (neither of which has as of yet occurred) that does not mean he should be banned from Twitter.
It is one of the utter perversities of the neo-liberal system that what are in effect public spaces can be privately owned. It is no answer to this to say that Twitter is privately owned and that the Mr. Moneybags who owns it can do with it what he wills. In the first place that begs the question of what to do with public spaces that are privately owned. In the second place it is not true.
In Pruneyard Shopping Ctr. v. Robins, 447 U.S. 74 (1980), the USSC upheld a California Supreme Court ruling which prohibited private shopping centers from prohibiting passers by from exercising their free speech on the premises. Various states have followed the California court's lead on this.
Although the Supreme Court did not uphold Pruneyard under the First Amendment it has recently recognized one of the underpinnings of that case. In Packingham v. North Carolina, 582 U.S. ___ (2017), the Court held that the government may not prevent convicted criminals from using the internet (Facebook). In reaching this conclusion the Court found that social media, like Facebook and Twitter served the function of a public commons." That is a very important finding. It dispels the idea that it is sufficient to say "Nyah nyah it's my property!" Social media may be privately owned but it is not simply private property.
From this premise, the Court went on to hold that the Government (in this case North Carolina) could not prohibit a convicted sex offender from cruising the internet.... no matter what blabbidy blab about "risk" and "sacred innocent children" and "improper content" it resorted to. In a unanimous decision the court ruled "A fundamental principle of the First Amendment is that all persons have access to places where they can speak and listen, and then, after reflection, speak and listen once more ... By prohibiting sex offenders from using those websites, North Carolina with one broad stroke bars access to what for many are the principal sources for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge." Justice Kennedy added: "It is well established that, as a general rule, the Government 'may not suppress lawful speech as the means to suppress unlawful speech'."
Thus even if Trump were actually impeached or convicted the government (state or federal) could not bar him from using the internet.
The question then becomes can Twitter (a private entity) do what the government cannot do even before Trump has been convicted of anything? Can a private entity pre-emptively prohibit speech? Pre-emptively, mind you, which gives rise to what the Supreme Court has condemned as a "chilling effect" on freedom.
Packingham did not answer this question. But if you read Prunedale and Packingham together the answer ought to be a resounding NO.
Of course, the First Amendment only applies to government action. But the underlying difficulty is that private actors hold a monopoly on what is acknowledged to be a public space. If you grant Twitter or Facebook the right and the power to censor and pre-censor speech then you have basically shit-canned the exercise of free speech in the modern world.
Do you really want to do that? You may hate Trump and pedophiles, or the "alt right" or "extremist" or this or that. But these are just labels. One day you will say something that will "deeply offend" someone or make a person feel "threatened" or "assaulted." You may say something that is "beyond the pale," "devoid of reason" or that "denies a self evident (cough) fact!" blah, blah, blah. The outrages and the excuses of censors are always the same.
Just remember: first they silenced criminals, but I am not a criminal; then they silenced extremists, but I am not an extremist, then they came and silenced me. The Black Cat always makes its rounds.
Meeses would be well advised not to cheer.
©barfo 2021
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