The First Amendment and Social Media: Part 2, The Road to Pravda

I guess that the First Amendment is the gift that just keeps on giving. I can’t help but thinking that there are a lot of people who are getting it wrong. I wrote some of it up a number of weeks ago in this post. My thoughts on the subjects I wrote about then have not changed but I feel the need to add some more to them, thus Part 2.

To start with I would like to point out what the First Amendment actually says. “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” Please note that this is something specific, which applies to a specific group of people. It says that “CONGRESS shall MAKE NO LAW….” It does not say “Nobody in the government shall….” It is talking about Congress in the federal government and by extension Congress in all of the States.

For this article we are talking mostly about the abridging of free speech.

What is free speech?

It’s pretty simple but sometimes in the passions of humanity we only think of one side of it. Most people would answer the above question by saying, “We get to say whatever we want.”

This is true but that is not the half of it. We also cannot be required to say things that we don’t want to say. The Fifth Amendment also backs this up, even to the degree that we cannot be compelled to answering questions that incriminate us.

All power is a double edged sword. There is never only one side to anything. You can say what you want and Congress can’t do anything about it. So, by corollary, Congress also cannot compel people to say things that they don’t want.

It’s pretty basic.

Now let’s make it a little more complex. I could say to you that “ducks fly south in the winter.” This is true. Ducks do fly south in the winter. That doesn’t mean that you have to agree to hear it. It also doesn’t mean that you have to pass it along to someone else should you decide to hear it. Both of these are covered by the First Amendment as well.

Let’s add more complexity for the sake of fun. I could say to you that “ducks don’t fly south in the winter; they fly north.” This is a lie. This again is something that you do not have to hear. Assuming you have heard this lie you are not required to pass it on.

Freedom of speech means:

1) You can say what you want to.

2) You cannot be compelled to say things you don’t want to.

3) You do not have to listen if you don’t want to.

4) You can listen if you do want to.

5) You do not have to tell the truth but you can if you want.

6) You do not have to lie but you can if you want.

7) True or not, you do not have to pass communication from someone else if you don’t want to.

It is understood that as with all actions a person needs to exercise some responsibility with communications with regards to the potential consequences. You can tell your wife, should you feel that your life does not have enough excitement in it, that those pants do not make her look fat because she in fact is fat, with or without them. You can also be slapped for it. The government has no authority to tell you that you have to lie to your wife, or tell her the truth.

Within the limits of the potential consequences is freedom of speech. Within those limits all of the seven situations above are covered by the First Amendment.

By corollary infringements on freedom of speech is when:

A) You can’t say what you want to.

B) You can be compelled to say things you don’t want to.

C) You have to listen even if you don’t want to.

D) You aren’t allowed to listen even if you do want to.

E) You have to tell the truth whether you want to or not.

F) You cannot lie even if you want to.

G) True or not, you have to pass communication from someone else even if you don’t want to.

All seven of these are violations of the First Amendment IF done by Congress at the federal level or any State.

So one day during a recent pandemic a high ranking Twitter executive decided that it would violate Twitter’s policy to have the opinions of doctors who disagreed with the administration’s position on Covid passed along as tweets by their users. The users who passed this information had their tweets taken down and their accounts suspended.

There is something here that needs to be said because it is one of the immutable laws of the universe. IF YOU GO TO TWITTER FOR MEDICAL ADVICE YOU ARE JUST PLAIN STUPID. I’m sorry to have to say this but it does need to be said just to clear the path to the next item on the list. I also have to say that Twitter is a pretty handy way to get word out there about the potentiality of any given situation but to act on it without verification? Nope. Stupid. However per numbers 1-7 above, it’s covered from government interference per the First Amendment, consequences notwithstanding.

There is something else here that needs to be said because it is also one of the immutable laws of the universe. IF YOU GO TO THE GOVERNMENT FOR MEDICAL ADVICE YOU ARE JUST PLAIN STUPID. I am sorry to have to say this but it does need to be said just to clear the path to the next item on the list. Unlike Twitter government is not really all that handy for anything under the sun.

The next thing on the list that needs to be covered is that Congress was recently grilling the, now former, high ranking Twitter executive about that policy. Included in that grilling were all kinds of questions, accusations and blame about the consequences of Covid, and the qualifications of the Twitter executive in labeling tweets, containing content from doctors who disagreed with the government line on the subject, as misinformation. You can watch the example I’m talking about here.

I have to be very clear here about something. I DO NOT AGREE WITH TWITTER’S ACTIONS IN REGARDS TO THEIR HANDLING OF COVID. They acted as a very sucky company during that time. I am a very firm believer in freedom of speech. Thus, this article. However because of this belief in freedom of speech I agree entirely with the right of Twitter to make its own choices regarding what communications they are going to allow to pass through their privately owned and operated company. It is their business alone and they can run their business as stupidly as they want.

What isn’t Twitter’s business is to do anything whatsoever about Covid. Remember that first law above? IF YOU GO TO TWITTER FOR MEDICAL ADVICE YOU ARE JUST PLAIN STUPID. As the congresswoman pointed out, Twitter executives are not doctors. How exactly are they in any way legally responsible for anything that happened because of Covid? Their business is to provide a place where every Tom, Dick and Harry can go to say something. As a courtesy and customer service they try to make it a safe place to talk, which is nice when it works. But that also implies that they don’t have to pass communications that they don’t think are safe. There is also no requirement for them to be right about it. All of this is covered by the First Amendment.

What would violate the First Amendment would be if Congress made a law that said Twitter HAS to allow tweets containing content from doctors who disagreed with the government line on the subject, when those executives think that it may be misinformation. Look at B, C, E, F and G above.

By the congresswoman’s own questions of Gadde, Gadde was in no position to determine what the truth of the matter was. She believed what she believed and acted on it. I think it was wrong. Congresswoman Mace thinks it was wrong. The thing is that neither you, nor I, nor Congresswoman Mace, were the executive at Twitter in charge of making the decisions. And also by Congresswoman Mace’s question of Gadde she sets the same standard for herself. She’s not a doctor either. So by what medical expertise does she lay claim to the truth? Remember that other immutable law? IF YOU GO TO THE GOVERNMENT FOR MEDICAL ADVICE YOU ARE JUST PLAIN STUPID.

I can already see it happening. Twitter allowed the wrong information to pass (I think) and suppressed the right information. Some people acted on that information as presented in the Tweets that were allowed to pass. IF YOU GO TO TWITTER FOR MEDICAL ADVICE YOU ARE JUST PLAIN STUPID. Some people paid the consequences of doing so. So as big government does what it does, I can see them making a law; the effect of which would make social media companies pass along information that those companies would not normally wish to pass.

As human nature would have it, during the next crisis, sooner or later, some amount of that information will be wrong too. The blame game will start again as the politicians who allowed it to happen, dive for political cover. So the government will make more laws to protect people who may be harmed by it. Sometime a law is going to come up saying that social media companies are only allowed to pass along information that is the truth.

Well hell’s bells! Who knows what the truth is? Guess what they’ll do then? They’ll decide for us what the truth is. Maybe they’ll even appoint a Secretary (or Minister) of Truth, you know, someone who can tell us all what is true and not true. Then they can punish people for not telling the truth as they see it.

The road to Orwell is paved with good intentions? Don’t for a second believe that people won’t fall for it. There is Pravda.

While I agree and sympathize with Congresswoman Mace’s position, that Twitter shouldn’t have suppressed the information, it’s also not within Congresswoman Mace’s power under the First Amendment to dictate what communications a privately owned and operated social media company should allow their users to pass.

Now should the admirable congresswoman decide that she wants to politely ask some social media company to pass or withhold a certain class of information, I think she would be well within her rights. The entirety of Congress could do so and be well within their rights. The FBI would be well within their rights. The White House would be well within their rights. You can ask questions of people and make requests of them. As long as they voluntarily go along with it, according to their own will, no foul.

Guess what? The First Amendment covers government officials too. It’s perfectly okay for an FBI agent, for example, regardless of rank, to oppose the reelection of his boss and seek out and publicly push a narrative that is supportive of that goal.

The second they try to use government to force the issue is where it becomes a problem. Here’s the tricky thing. “Congress shall make no law….” This is a specific action prohibited to a specific group of people. If Congress doesn’t make a law, signed by the POTUS, it is not a violation of the First Amendment. This does not apply to the POTUS. This does not apply to the FBI. However it would most certainly be an abuse of power and corruption and the government officials engaging in this kind of behavior should be locked up for a very long time.

The First Amendment either literally means and is limited to what it actually says or it means something vague, nebulous and ambiguous that the Supreme Court can reinterpret into saying that school teachers can’t pray. Government officials, just as you or I, can say whatever they want. I could even make the case that it is more so for them. What is the First Amendment for if it does not mean that political speech is protected for the people in the places where it is used the most?

There is an argument out there that basically says, “It all depends on whether Twitter is a publisher or a platform.” I think this is pure bunk. I can’t find the part of the Constitution that says, “Congress has the power to define the difference between a publisher and a platform and thus further decide what each can or cannot say.” That in itself would seem to be contrary to the First Amendment.

There are a lot of details I’m not talking about here because the situation is too large to cover. I tend to lean towards the big picture basics of political philosophy rather than the finer details. What I would ask is that people very carefully look at the underlying principles. The advocates of big government are very fond of never letting a good crisis go to waste. Covid is an ideal crisis; if not by its own virtues but by what it has been unnecessarily made into.

No matter what side of the aisle you fall on we want to be very careful regarding any laws regulating social media and government’s relationship to it. Almost all of it crosses directly through the path of the First Amendment.