Some Quick Facts about the Current Situation

With Trump in Walter Reed Hospital, though he’s claiming to be feeling fine and doctors say he may be released today, the news outlets are reviewing the legal and constitutional contingencies for what will happen if his condition gets worse.  I offer this post as a brief summary.  I urge you to read it.

Obviously, if Trump dies, Vice President Mike Pence becomes president.  Moreover, if Trump becomes temporarily incapacitated, Pence will become acting president.

It is the opinion of many that Pence, given his sensitive position, should stay in Washington and keep his distance from others.  He has tested negative for COVID so far, but the words “so far” are potent.  As it happens, he’s not staying put, but rather, he’s flying west to make campaign appearance on behalf of Trump.  Wednesday night, he’s scheduled to be in Salt Lake City, Utah, for the vice-presidential debate against Kamala Harris.

Because Pence is taking those risks, we’re being reminded of what provisions are in place if the president and vice president both die.  That’s not in the Constitution, but a 1947 act of Congress provides that the line of succession after the vice president goes to the speaker of the House (currently Nancy Pelosi from California, a Democrat), then the president pro temporary of the Senate (currently Chuck Grassley from Iowa, a Republican), and then the members of the president’s cabinet according to seniority of when their position was created, which puts Secretary of State Mike Pompeo at the top.  Since nobody is expecting Nancy Pelosi to die any time soon, the point is that if Trump and Pence both die, Nancy Pelosi becomes president.

If Trump dies and Mike Pence lives, then the 25th Amendment to the Constitution calls for Pence to appoint a new vice president, who has to be confirmed by both the House and the Senate in a simple majority vote.

Assuming that Trump lives, the big question is how his illness will affect the election.  On the one hand, his loyal base still loves him.  On the other hand, outside of his loyal base, some may start to think that Trump should have been able to protect himself from the virus if he wants to claim to be able to protect the country.  A number of bad choices made by Trump, including having that reception for Amy Coney Barrett where people were interacting at close range–and where several others besides Trump were present who later tested positive for COVID-19.

Speaking of Amy Coney Barrett There’s one more important situation that needs to be addressed.  Three Republican senators have just been diagnosed with COVID-19.  If they all recover within the next few weeks, they should be able to cast their votes for the confirmation of Judge Barrett for the Supreme Court (the seat held by Ruth Bader Ginsburg).  If they don’t recover in time, then her confirmation in jeopardy.  The Republicans can only afford to lose two Republican votes for her, and two Republican senators (Susan Collins of Maine and Amy Murkowski) have said they’re going to vote against her confirmation

Under the current Senate rules (which were not written with a pandemic like this in mind), senators have to be present on the Senate floor to cast their votes.  Senate Majority Leader Mitch McConnell has announced that the Senate floor is closed for two weeks, but committee hearings will proceed, including the confirmation hearings of the Judiciary Committee (although two of the afflicted senators are on it).  Senators can take part in committee hearings by Zoom.

You should follow the updates regularly.  For your convenience, news feeds from several key outlets are here on the OpenLab page.  I also recommend for updates and analysis.

The Election and What Some People Are Worried About

This year, more people will be voting by mail than ever before.  In some states, ballots don’t have to be received by November 3, merely postmarked by that date, and in some states, the ballot counters aren’t allowed to start counting the early ballots until the polls have closed on election day.  Obviously, what this means is that there’s no way that any official results are going to be announced that night.  At best, it’s going to be several days after November 3 before we know who the winner is.

The question on may people’s minds is, will Trump declare victory on election night based on early estimates?  If he does declare victory prematurely, and then the vote counts show that he has lost, will he concede the election?  If he doesn’t concede the election, will extremist groups like the Proud Boys and QAnon cause mayhem?

But there’s more.  What if the returns in some states are disputed?  What if the dispute comes to the Supreme Court?  Now, please be clear: there is no guarantee that the justices whom Trump has appointed to the Court will automatically be on his side; there is this thing called the “rule of law.”  Nevertheless, Trump has explicitly said that he wants there to be nine justices, not just eight (which could create a tie), on the Court if and when an election dispute gets there, and that means he want the Senate to hurry up and confirm Amy Coney Barrett.

What’s also true is that if no candidate is able to get a clear majority in the electoral college, the House of Representatives selects the president.  That’s in the Constitution.  It’s also in the Constitution that the vote will be taken with each state’s delegation counting as a single unit.  Now for a little zinger:  While the Democrats have a majority of Seats in the House, the majority of states have Republican-dominated delegations in the House.  But, here comes another twist:  If the election reaches the House, it won’t be the current membership, but the new membership after the election, that will deal with the question.

In other countries over the years, it has taken considerably less tension than what we’re experiencing now to spark civil war.  Here in the United States, if there’s an election dispute, we’re not likely to have a formal civil war, but we are likely to see some violence.  And I strongly believe that Trump strongly believes that he can’t possibly lose the election unless there’s fraud.  How he’ll act on that belief, if at all, is anybody’s guess–he may be contented to storm out and tell his story to the crowd at his next rally (because I’m sure those will continue if he loses).  But it is a factor to be aware of, that Trump doesn’t think it’s possible for him to lose a fair election.  Or at least that’s how he seems to me; I know others see him differently.

Report on NPR, October 1, 2020

And here is the full video of the September 29 debate; the portion most relevant to this post, including Trump’s refusal to pledge not to declare victory prematurely, starts at spot 1:58:42; the broader issues of the election and mail-in voting start earlier at 1:50:44.

The Battle over Justice Ginsburg’s Seat

First of all, we need to review some well-understood basics:  Democrats want there to be more liberal justices on the Supreme Court, and Republicans want there to be more conservative justices.  That reality is very simple.  It fits in with the fact that members of each party want their respective party to be in power in all branches of the government.  On that level, it could be said that it’s all about power.

Of course, ideology fits in with power, because each party has a set of ideological beliefs, and members of each party tend to believe that their party’s ideological beliefs are absolutely right.  What is more, they also believe that their ideological beliefs represent “the will of the people,” even when that notion is contradicted by the polls, because both parties have their ways of explaining away each other’s popular support.

With regard to ideology, Democrats want the right to an abortion to be secure in all 50 states, they want Obamacare to stay in existence even while one key part of it has been repealed, and they want a host of other policies associated with the word “liberal” to prevail.  Republicans want otherwise.  So members of each party feel justified in their efforts to influence the ideological configuration of the Supreme Court

But there’s a really big question today:  How are the Republicans able, now, to justify confirming Trump’s choice for the vacant seat on the Court after what they did in 2016?  It should be remembered that back in 2016, when Justice Antonin Scalia died in February, the Senate Republicans refused to hold confirmation hearings for Obama’s choice to fill that vacancy.  Their stated justification at the time had nothing to do with parties: They said that because it was an election year, it should be left to the new president to fill that seat the following year.  Senator Lindsay Graham actually said “use my words against me,” referring to precisely the scenario that we have now.  Here he is on video.

But this year, Lindsay Graham and the other Republicans don’t seem worried about having their words used against them or seeming hypocritical.  How do they justify this:  Mitch McConnell, the Senate Majority Leader who led the refusal to consider Obama’s choice in 2016, justifies his current actions by interpreting the 2018 midterm elections, in which the Republicans kept their majority in the Senate (though they lost it in the House), as a vote of approval for having the Republicans decide who should be on the Court.  Article in Politico, September 21, 2020.

What also needs to be remembered is that the Republicans have a whole other way of justifying their efforts to control the Court:  They regard conservative justices as more faithful to the Constitution, and regard liberal justices are tending to disregard the Constitution and just make up any laws and case-law doctrines that they feel like making up.  They thus feel that they are protecting the Constitution by doing all the maneuvering it takes to maximize the number of conservatives on the Court.  This point comes through in the remarks of Ted Cruz, in an interview with Steve Inskeep on NPR Tuesday morning, September 29, 2020.

But no matter how your spin it, it is really hard to dispute that the Republicans in the Senate are not holding to the position they claimed to take in 2016.  It can be said that the Democrats have flip-flopped as well, but really, all the Democrats are doing is asking the Republicans to follow their own precedent.  It should also be noted that Scalia died ten months before the election of 2016 and that Ginsburg died just six weeks before the formal date of this year’s election.

It’s about power, but both parties consider themselves justified in claiming that power and doing whatever it takes to get it and keep it.

Final note:  You should also be paying attention to the stories about the specifics with regard to Trump’s choice, Amy Coney Barrett.  To put it in brief, she is exactly what the conservatives want and everything the liberals don’t want.

Why I Can’t Be Neutral about Trump

I have taught this course for years without bringing my political opinions into it.  There have been occasions when I had a class meeting on election day after I had voted, and when I walked into the room and a student asked me whom I had voted for, I replied “I don’t remember.”  I have had no problem at all with talking about the Democratic and Republican parties as representing coherent visions and ideologies, describing each of them in detail while giving no clue to how I felt personally about any of it.

Trump is another story.  And I do not consider this to be “political opinion.”

It’s not about the difference between conservative and liberal.  It’s not about whether I agree or disagree with Trump’s policies.  It’s about the minimum standards of conduct that we, as Americans, have a right to demand of our leaders, of which Trump falls far short.  And I am going to focus here on just one aspect of Trump’s conduct that in my view–my professional opinion, not just my personal political opinion–disqualifies him from being treated like any other president in terms of attempts to be even-handed and so-called “objective,” and that’s his encouragement of hatred toward journalists as people.

First of all, two things that are constant even when things are normal are:  (1) no president has ever enjoyed being held up to critical scrutiny by the press, and there’s nothing abnormal about the president expressing annoyance at the press, and (2) conservatives have claimed for decades that there was a liberal biased media establishment that was working against everything conservative.  What is more, since conservatives have a way of conflating their ideologies with being pro-American and casting liberals as being less so, there’s nothing abnormal about conservatives calling the media unpatriotic and anti-American.

But all of that is about “the press,” and all of that involves criticism of the behavior of the press.  That’s completely different from what Trump has done.  Trump has called reporters–who happen to be his fellow citizens, which means it’s his job to function as their president whether he thinks they like him or not–“enemies of the people.”  That’s not criticism of the press and its behavior; that’s encouragement of hatred against journalists as people.  And some of Trump’s critics have understandably suggested that this encourages dictatorial regimes worldwide to engage in retaliatory violence against journalists who give them a hard time in print, as with the murder of journalist Jamal Khashoggi by the government of Saudi Arabia two years ago.

Now, the thing that has inspired me to make this post today is, I have just learned that Trump called it “a beautiful thing” that a reporter covering a protest in Minneapolis this past May was struck in the knee by a rubber bullet fired by a police officer.  Here’s the story on Yahoo! News.

Even if you can make a case that the media has been extra-critical of Trump, even if you can make a case that the media has behaved unfairly toward him, calling reporters enemies of the people and expressing delight in a particular journalist suffering pain is beyond the pale of what anyone worthy of the office of the president would ever do.  And for that reason, it would be dishonest of me, for the sake of some lofty ideal of “objectivity,” to pretend that, as a historian and an instructor of history and government, I do not see a very serious problem with Donald Trump being president, a problem that goes way beyond anything that can be called “political opinion.”

And I have nothing to hide, when it comes to this.

Ramping Up the Tension

When things are normal, in a presidential election year, the two parties accuse each other of all kinds of sinister motives, but then the voters vote, the results are announced, and the party that loses makes plans and resolutions to do a better job of campaigning for the next one.  Even after the election of 2000, when the result was in dispute, the only sign of it was some protest marches, after which life went on.  I wouldn’t count on that this year, though, because things aren’t normal.

Before we even get to the issues, two things need to be noted about this year’s presidential election.  First, it is likely to be decided by razor-thin majorities in a handful of battleground states.  Most decisive are Pennsylvania, Michigan, and Wisconsin.  Also of interest here are North Carolina and Arizona.  Trump will probably win Ohio; it’s not quite as competitive a state as it was a decade ago, but it’s significant.  And then there’s that nettlesome state of Florida, the state that the big fuss in 2000 was all about.  The conventional wisdom is that Trump has to win Florida to win the election, and if Trump does win Florida, Biden has to win Pennsylvania, Michigan, and Wisconsin.  And it needs to be said again that the margins in those states will probably be razor-thin.

And that brings me to the second key fact about this year’s election, which is that because of the pandemic, an enormous number of voters will be voting by mail.  Trump says that’s going to create massive fraud.  While there is no evidence to support that claim, there’s a whole other problem with mail-in voting: thousands of ballots end up being disqualified because of procedural mistakes voters make on them, like neglecting to sign them.  And some states require more than just a signature.

Those two facts–razor-thin vote spreads and disqualification of some mail-in ballots–add up to a strong possibility that there will be major disputes over the returns in several different states.  It may even make the battle of 2000 look like a love fest.  To say that people will be taking to the streets is probably putting it mildly.

And now for the issues.

At first, it looked as if the election was going to be a referendum on Trump’s handling of the COVID-19 crisis, which would have worked largely in Biden’s favor.  But then the BLM-related protests began, not entirely peaceful, and Trump was able to make “law and order” the center of his campaign, playing to suburban fears.  (The calls to defund the police didn’t do the Biden campaign any favors, as conservatives try to link Biden with that demand even though he’s far from being behind it.)  And all that was before Supreme Court Justice Ruth Bader Ginsburg died.  Now, the focus of the campaigns has changed yet again.

It should be remembered that in February of 2016, when conservative justice Antonin Scalia died, Senate Majority Leader Mitch McConnell announced right away that there would be no confirmation hearings that year for any candidate whom President Obama might nominate to fill that seat, but rather, the Republicans were going to wait till after the election and let the new president fill that seat.  His argument was that it was “too close to the election.”  Is McConnell applying that rule this year, with the opening of the vacancy being a lot closer to the election?  Of course not.  What he’s saying now is that when the American people voted to keep the Republicans in the majority in the Senate in 2018, they voted for the Republicans to keep the liberals in check and to honor President Trump.  So from his point of view, the Republicans will be honoring the will of the people by letting Trump fill this vacancy.  Needless to say, the Democrats think otherwise.

There are currently 53 Republicans and 47 Democrats in the Senate.  That means that the Democrats need 4 Republicans to join them in their refusal to confirm a Trump nominee.  At present, they have 2:  Susan Collins of Maine and Lisa Murkowski of Alaska.  The next one they hope they can get on their side is Mitt Romney, the one Republican senator who is openly and consistently anti-Trump.  That would bring the number of Republicans on Trump’s side down to 50, in which case Vice President Mike Pence, in his capacity as president of the Senate, would cast the tie-breaking vote.  So the Democrats need Mitt Romney plus one more Republican senator, along with Collins and Murkowski, to stop Trump from filling that position (article in Politico, September 19, 2020).

Trump has announced that he will be nominating a woman for the job. I don’t envy whatever woman he nominates; she will inevitably be eaten alive by vultures if any flaws in her character and background can be found at all.  But the big thing I’m getting at is that tensions are abnormally high at the moment, and they just got higher.  Whatever the outcome of the election ends up being, we will be lucky if we don’t see something approaching civil war.  We do, after all, have a degree of partisan tensions greater than what it has taken to spark civil wars in other countries around the world.  That’s what made the remarks last week of Michael Cupoto at HSS, remarks to the effect that Trump supporters should stock up on guns and ammunition because the Biden supporters were already do that, no laughing matter (Politico article, September 15, 2020).

For a lot more detail on what’s going on with this, you should check out the Politico website.  Also, here’s a story on NPR from Saturday morning, September 19, about Ruth Bader Ginsburg’s career and her legacy for women’s rights, as recounted by longtime Supreme Court journalist Nina Totenberg.


Justice Ginsburg Has Died

Justice Ruth Bader Ginsburg has died at the age of 87.  What this means is that the Supreme Court, which up until today had five Republican appointees and four Democratic appointees, is now going to have six and three no matter who wins the presidential election and no matter which party has the majority in the Senate at the start of the new year.  What is more, it is a safe bet that the new justice is going to be an ultraconservative, especially on the subject of abortion.

It should be remembered that in the spring of 2016, when conservative justice Antonin Scalia transitioned to that great courthouse in the sky, the Senate Republicans refused to hold confirmation hearings for President Obama’s nominee, on the grounds that because it was an election year, the new president (who they hoped would be a Republican) should make the choice.  Conservatives nationwide justified this action on that basis.  Now, given that the Republicans still have a majority in the Senate, does anybody seriously think that Mitch McConnell is going to say “Well, we’d better follow our own rule, and let the next president fill this seat”?  I doubt it.

You can expect to see the Democrats try to delay the confirmation of a new justice for as long as they can, but the only way they can truly block it is to leave Washington completely and attempt to deprive the Senate of a quorum, but if they do that, if all of the Republicans show up, there will still be a quorum (50% minimum), and if a quorum doesn’t materialize, no legislation will get passed, including COVID-19 relief, so that’s not an option.

Thus, by the end of this year, the conservatives are going to outnumber the liberals on the Court six to three.

In retrospect, Justice Ginsburg might have done well to retire in the summer of 2014.  Obama was still president, and the Democrats still had a majority in the Senate.  There was no way of knowing for sure that the Democrats would lose their majority in the Senate that year, but it was certainly a clear possibility.  But, we can only deal with the reality that we have, and the reality that we have is that Justice Ginsburg has died, and Trump is going to be choosing her successor with a Republican Senate to confirm her.

Article in Politico, September 18, 2020

Justice Roberts and the Latest Abortion Case

On June 29, 2020, in the case of June Medical Services v. Russo, the Supreme Court ruled 5-4 that a Louisiana law requiring abortion doctors to have admitting privileges at some hospital was unconstitutional and could not stand.  To the surprise of many, Chief Justice John Roberts cast the swing vote, joining the four liberal justices–Ruth Bader Ginsburg, Stephen Breyer who wrote the opinion, Sonia Sotomayor, and Elena Kagan–in striking down that law.  The case followed the precedent of Whole Woman’s Health v. Hellerstedt (2016), which struck down a very similar law in Texas.  Back then, in the Whole Woman’s Health case, Anthony Kennedy was the swing vote, the Republican appointee who voted with the liberals.  Roberts was one of the dissenters in the 2016 case: if it had been up to him, the Texas restrictive law would have been allowed to stand.

In this 2020 case, Justice Roberts voted with the liberals for one reason and one reason only: he believes in the principle of stare decisis, that is, that courts should follow precedents, even disagreeable precedents.  This was no surprise to those of us who had observed him following precedents he found disagreeable before.  He made clear that he was only voting with the liberals because the lower court had followed the 2016 precedent and he was not able to see any way of saying that the lower court had been in error in doing so, because the law in question in Louisiana was nearly identical to the one involved in the 2016 Texas case.

There is, however, a very big however.  While Roberts voted with the liberals to uphold the lower court ruling striking down the Louisiana law, he did so very narrowly.  Stephen Breyer wrote the court’s opinion, joined by the other three liberals.  Roberts wrote a concurring opinion, and his concurring opinion, where he agreed with the conservatives on several points, seriously narrowed the effect of the Breyer opinion.

The 2016 opinion, written also by Breyer, drew on an earlier precedent, Planned Parenthood v. Casey, which of course was drawing on the original abortion decision of Roe v. Wade (1973).  Roe v. Wade, of course, said that states cannot outlaw abortion.  In Planned Parenthood v. Casey (1992), the Court ruled that states cannot put an “undue burden” on a woman seeking an abortion.  In the 2016 Whole Woman’s Health case, Justice Breyer interpreted the words “undue burden” as meaning that when a state places a burden on getting an abortion, the degree of the burden must be balanced against the compelling state interest that motivated the passage of the law.  Breyer applied that precedent, his own precedent, in the 2020 June Medical Services case.

And that is precisely what Justice Roberts did not go along with in his concurring opinion in this 2020 case.  Justice Roberts wrote that the test of whether an abortion restriction law can stand is whether it poses a “substantial obstacle” to getting an abortion and whether that law has a “rational basis.”

The upshot is that Roberts, by narrowing Breyer’s ruling with his concurring opinion, gave a green light to states to craft abortion restriction laws–maybe even laws that require doctors to have admitting privileges at a hospital–in a way that will allow him to let them stand without being unfaithful to stare decisis.  In other words, such laws need to be sufficiently different from the Texas law that the Court struck down in 2016, so that the precedent from the 2016 Texas case won’t be so obviously applicable.

Here are two entries from Scotus blog, dated June 20, 2020: one by a writer who favors abortion being legal, and the other by an opponent of legal abortion.


The Parties and the Police

If Congress is going to pass a law holding police to greater accountability, the Democrats and the Republicans are going to have to come to some agreements.  However, at the moment the two parties are not working together on it, but rather, are off in their own separate corners.  In the House, the Democrats are making ready to pass a bill called the Justice in Policing Act, written largely by members of the Congressional Black Caucus.  In the Senate, the Republicans are working on a bill of their own, largely spearheaded by the single African-American Republican Senator, Tim Scott of South Carolina.

The Democratic bill bans the choke hold nationwide, makes it easier to sue police officers, blocks the transfer of military weapons to local police departments, requires cops to wear body cameras, and creates a nationwide registry to track cops accused of misconduct.  Presumably, the Republican bill will be generally less tough on police.  What remains to be seen is whether Congress as a whole cares enough about passing something for both parties to compromise, or rather whether each party is determined to make a statement to the voters in November, pointing to the other party’s recalcitrance.

However, for the parties, there’s a larger issue than what kind of bill Congress will pass.  The two parties are going to be competing in November for control of the White House, both chambers of Congress, and state legislatures and governorships around the country, and the police just became a central issue in those forthcoming campaigns.  There is talk at the local level of cutting funding for police or even abolishing police forces completely.  The mainstream of the Democratic Party, as represented by presidential candidate Joe Biden and the party leaders in Congress, certainly does not stand for the defunding of police.  However, Republicans have already begun accusing Democrats of precisely that, and making themselves out to be the defenders of the police that the Democrats allegedly hate.

A big part of the problem is that a lot of people think only in binaries, that is, either-or propositions.  In this instance, the binary is about being either pro- or anti-police.  Now, for those who make a serious effort to think the matter through, it doesn’t make any sense to be either purely pro- or purely anti-police, because it’s true that we need police and that a lot of cops are brave public servants risking their lives to keep us safe, and it’s also true that there are cops out there who think they have the right to give the death penalty to anyone who gives them a hard time, as well as other cops who have a reflexive reaction of fear when they see a black face.  Neither reality cancels out the other, but in the minds of many who think in binaries, it really is either one or the other.

The year that Trump was elected, there were some police brutality incidents fresh in people’s minds, but there were also some recent instances of lone madmen killing police officers to avenge those incidents.  There was a big impasse in New York between Mayor Bill De Blasio and the police union, because when De Blasio spoke of racial profiling and the warnings that he had had to give to his black son about it, the police union accused him of having the blood of the murdered cops on his hands.  This pro-Trump manifesto, which Trump supporters were passing around on the internet shortly after Trump was elected, makes clear that in the minds of a lot of Trump supporters, police are under attack by mainstream liberals.  (Key line “You created ‘us’ when you began murdering innocent law enforcement officers.”)  While there is much support for the protests of the killing of George Floyd, there may also be a pro-police backlash, especially if the calls to eliminate police altogether gain a lot of ground.

Biden is in the hot seat right now.  He’s made clear he doesn’t favor defunding police, and that of course is getting him a lot of criticism from protesters and parts of the Black Lives Matter movement.  But he’s also going to be accused by Trump of not being sufficiently pro-police.  And I expect the police issue to be effecting campaigns at all levels, not just Trump versus Biden.

Of course, the election is some months away, and it’s anybody’s guess what further crises and upheavals we’ll be seeing between now and then.

Article in about the Democratic bill, June 8, 2020

Article in about Senate Republican moves toward a bill, June 9, 2020

Trump vs. Twitter: A Post-script

I neglected to emphasize a point in my previous post, so I’m going add it here.

Suppose you have a neighbor who hates you, and that neighbor posts a slanderous story about you on Facebook.  Obviously, if you can prove that it really was your hateful neighbor who posted it, you can sue your neighbor.  But can you also sue Facebook?  According to that 1996 law, no you can’t, because Facebook was not the source of the slander and was not in any way endorsing it by allowing it to be posted.  Part of what’s involved is that even if the administrators at Facebook intended to take it down once they found out about it, the story might well have already been up long enough to do serious damage, and if Facebook can be held liable for that damage, then Facebook will have to screen every post–even those posts where you’re telling the world what you had for breakfast or how cute your new kitten is–before letting it go up, and that would make Facebook as we know it unsustainable.

Okay, so Facebook isn’t legally responsible for the content of people’s posts.  But does that mean that Facebook has to sit back and let everything that anybody wants to post stand?  So far, it hasn’t meant that.  Facebook has taken down lots of posts for violating community standards.  It has, in fact, kicked people out completely on that basis with no explanation.  Fair or unfair, the idea is that Facebook is a private business enterprise that has the right to decide what it does and does not want on its pages, even if it isn’t legally responsible.

What Trump is trying to do with his new executive order is make this into an all-or-nothing proposition.  By lifting legal immunity from social networks that “censor” (his word, and a very questionable use of the word) the content, he would have it that either a social network keeps its hands off the content completely and lets people post anything they want, or that social network exercises complete control over the content and assumes legal responsibility for it.

Trump issued this executive order, of course, in response to his favorite social network, Twitter, posting fact-check links to a tweet of his claiming that voting by mail causes massive voter fraud.  Trump considers this a violation of his freedom of speech.   (Reminder:  Because Twitter is not the government, the whole notion of “freedom of speech” is not applicable, though to be sure people have always used the term conversationally in contexts where it does not apply.)  More recently Twitter flagged a tweet of Trump’s (“when the looting starts, the shooting starts,” referring to events in Minneapolis) as violating its rules against advocating violence.

As private business enterprises, Twitter and Facebook have to keep sponsors and customers happy.  They’ll never please everybody, of course, but there is pressure on them to find just the right balance between allowing free airing of opinions but putting some limits on patently false information, on prejudicial insults, on defamation, on advocacy of violence, etc.  Making it into an all-or-nothing proposition–either total control or no control whatsoever–would put a heavy burden on these companies and possibly make their operations, as we know them now, unsustainable.  There may well be a need for that 1996 law to be rethought, but all-or-nothing hardly seems like a sensible way to go.

Trump’s executive order fits in with his earlier attempts at punishing news outlets for coverage of him that he considers “fake news.”  And as with everything else involving Trump, Americans see it with two narratives: to some Americans, this is Trump trying to be a dictator; to others, it is Trump having the courage to stand up to the America-hating elites that want to stop him from making America great again.

Trump vs. Twitter

Trump, as we well know, is a very prolific tweeter.  But Twitter has recently started attaching links to fact-check sites to some of Trump’s tweets, and Trump is furious.  They’re violating his freedom of speech, he claims.

I do wish Trump had dropped by City Tech and taken my American Government class before running for president, because I would have been able to explain to him that private businesses aren’t bound by any rules of “freedom of speech.”  Rather, when Twitter decides whether to allow Trump’s tweets to go unchecked, or posts caveats on them, Twitter is exercising its own freedom of speech.  Now of course companies and individuals don’t have unlimited freedom of speech–they can be sued for slander or libel, for instance–but Trump is on very thin ice when he claims that Twitter has done anything illegal to him.

Back in 1996, Congress passed a law called the Communications Decency Act that gave online companies protection from being sued for the content of users’ posts.  In other words, if you post something libelous on Facebook or Twitter, Facebook or Twitter can’t be held liable for it, because they are merely channels, not providers, of the content.  But Trump wants that protection taken away from “social media companies that engage in censoring or any political conduct.”  He has just issued an executive order to that effect.

His executive order is probably not going to get very far.  A lot of the decisions in the implementation of that law are made by independent regulatory agencies, state attorneys general, and the courts, which aren’t controlled by Trump’s executive orders.  But this conduct plays well to many among his base who believe, as Trump says, that ““the Radical Left is in total command & control of Facebook, Instagram, Twitter and Google.”  It fits the populist-nationalist narrative to a T:  he’s the man of the people, fighting on behalf of the people, the real Americans who live their country, to make their country great again, and the treacherous elites don’t like that so they’re picking on him.

Under the circumstance, though, one would think that both Trump and his base would have too many real problems to think about, and wouldn’t have time for this nonsense.  But no, that doesn’t appear to be the case.

Article in Politico, May 28, 2020

Another article in Politico, May 28, 2020

Report on NPR, May 28, 2020

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