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, 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

Note to students newly joining this site:  There’s a set of news feeds on this page where you can easily access updates any time.

UPDATE:  On Friday, May 15, a three-judge panel of the Second Circuit Court of Appeals heard arguments in the appeal from this case and showed signs of agreeing with the district court’s ruling.  This article on NBC New York sums it up concisely.  (A circuit court has nine justices.  For a typical appeal, three justices chosen at random hear the case.)

On Tuesday, May 5, a federal district court ruled that New York State must reinstate the presidential primary election that was scheduled for June 23. Judge Analisa Torres of New York’s Southern District ruled that cancelling the primary election and letting Joe Biden get all of the state’s pledged delegates violated the Constitution. But how can that be, when the Constitution doesn’t even say that there have to be primary elections or a popular vote for the president at all? That question recently came up in class, and it’s a very good question.

Just to review a few basics, the primary elections and caucuses are all about selecting delegates from a state’s party to the national convention. It’s at the national convention that the party’s nominee is selected and the party platform is written. The federal government does not control the primaries or the conventions. Rather, the primaries are controlled by a combination of the national party committees, the state party committees, and the state legislatures. It also needs to be remembered that it’s only in since the 1960s that the voters in the primaries have had nearly decisive influence over which delegates got selected to attend the conventions.

For a while this year, it looked as if Joe Biden might not be the strongest candidate. But once the primary elections began, the field started to thin out, and not long after Super Tuesday, it was down to one: Joe Biden.  It needs to be noted, though, that when candidates withdraw from the race, typically, the way they word the announcement is that they are “suspending campaigning.”  That’s different from removing their names from the ballot.  Bernie Sanders, in particular, made sure everyone knew, when he announced suspension of his campaign, that he wanted people to vote for him so that he would have enough delegates at the convention to influence the writing of the party platform.

Now, we come to New York.

New York’s presidential primary election was originally going to be held on April 28. Because of the covid-19 crisis, it was postponed to June 23, by order of Governor Andrew Cuomo. But just before adjourning, the New York state legislature passed a law, and Cuomo signed it, saying that the Board of Elections could remove from the primary ballot any candidate whose campaign was suspended or who had otherwise withdrawn from the race. Armed with that bill, the New York State Board of Elections removed all of the Democratic candidates except Biden from the primary ballot and thus canceled the election.

It was Andrew Yang who sued. (Bernie Sanders took a different approach: he circulated an online petition asking the Democratic National Committee to deny New York a delegation at the convention if the primary was canceled.) Yang, along with a group of seven hopeful delegates who would be pledged to him if he got enough votes, brought the suit. Thirteen Sanders delegates joined in as “plaintiff-interveners.”

Technically, the ruling is a preliminary injunction, but an important component of the preliminary injunction is likelihood of winning on the merits of the case when the case is actually decided.  Thus, as far as this judge is concerned, it’s Andrew Yang and the Yang and Sanders delegates who have the weight of constitutional precedents on their side.

And what, exactly, are those constitutional precedent?

The parts of the Constitution that apply are the First Amendment, specifically “the right of the people peaceably to assemble and to petition the government for a redress of grievances,” and the Fourteenth Amendment, which the Supreme Court has used to apply certain clauses of the Bill of Rights, including that one, against the states.   And the precedents are a string of cases in which the Supreme Court and the Second Circuit Court of Appeals (the circuit that this district court falls under) have applied this concept to state election laws, including laws governing primary elections.  The idea is that, even if Article II and the Twelfth Amendment not require that there be popular presidential elections at all, the First and the Fourteenth Amendments still require that they be run fairly if they’re going to be run at all.  Inequitable election laws, the courts have found, deprive citizens of the right to make their voices heard in the government.

And the Supreme Court has set specific guidelines for the deciding of fair election cases.  In 1983, the Court struck down an Ohio law that set March as the deadline for candidates who wanted to run as independents in the presidential election to file with the state.  In that case, Anderson v. Celebrezze, the Court said that in deciding cases involving election laws, a court had to “first consider the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate,” then “identify and evaluate the precise interests put forward by the State as justifications for the burden imposed by its rule”; the next step was to “determine the legitimacy and strength of each of those interests” and to “consider the extent to which those interests make it necessary to burden the plaintiff’s rights.”  (A subsequent case found that this applies only to drastic restrictions.)

The upshot of the Wang ruling about the New York primary is that the cancellation of the New York primary puts a severe burden on voters who wish to make their voices heard and be represented at the Democratic convention, and that the COVID-19 crisis does not make the imposition of this burden necessary.  The Court also took into account that at the time that Wang, Sanders, and other candidates “suspended campaigning,” this law had not been passed, and that therefore the candidates who suspended their campaigns–and their desirous delegates–had full reason to expect that the candidates would be on the ballot and that their supporters would still have a chance to vote for them.

That’s a quick summary; here’s the actual ruling.  It’s being appealed, so this may not be the last word.