FCC

Protocol: Ajit Pai is distancing himself from President Trump

By Emily Birnbaum

In an interview on C-SPAN’s “The Communicators,” [FCC Chairman Ajit] Pai told Protocol and C-SPAN co-host Peter Slen that he does not intend to move forward with a rule-making on Section 230, which was laid out in Trump’s social media executive order. He said he won’t “second-guess” the decisions made by Facebook and Twitter to bar Trump from posting…

Here are some of the highlights from the conversation with Pai, which will air on C-SPAN this weekend.

Free Speech

Glenn Greenwald: Violence in the Capitol, Dangers in the Aftermath

It is stunning to watch now as every War on Terror rhetorical tactic to justify civil liberties erosions is now being invoked in the name of combatting Trumpism, including the aggressive exploitation of the emotions triggered by yesterday’s events at the Capitol to accelerate their implementation and demonize dissent over the quickly formed consensus…

Within hours of the Capitol being cleared, we heard truly radical proposals from numerous members of Congress. Senators and House members who objected to Electoral College certification, or questioned its legitimacy, should be formally accused of sedition and removed from expelled from the House if not prosecuted, argued Rep. Cori Bush (D-MO), with other House members expressing support. Even those unarmed protesters who peacefully entered the Capitol should, many argued, be hunted by the FBI as domestic terrorists.

Calls proliferated for the banning of the social media accounts of instigators and protest participants. Journalists and politicians cheered the decision by Facebook and Twitter to temporarily bar the President from using their service, and then cheered again when Facebook’s CEO Mark Zuckerberg announced on Tuesday that the ban on Trump extended through Biden’s inauguration. Some journalists, such as CNN’s Oliver Darcy, complained that Facebook had not gone far enough, that more mass censorship was needed of right-wing voices…

These calls for censorship, online and official, are grounded in the long-discredited, oft-rejected and dangerous view that a person should be held legally accountable not only for their own illegal actions but also for the consequences of their protected speech: meaning the actions others take when they hear inflammatory rhetoric. 

Reason (Volokh Conspiracy): Incitement and Ordinary Speakers; Duty and Political Leaders

By Eugene Volokh

A friend asked me whether Trump’s speech yesterday could be punished as criminal incitement of the appalling Capitol riot.

I doubt it, at least as I read what Trump was saying. Under Brandenburg v. Ohio, even “advocacy of the use of force or of law violation” can’t be punished unless it “is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”

Saying things that foreseeably move some audience members to act illegally isn’t enough. Speaking recklessly isn’t enough. The Court was well aware that speech supporting many movements-left, right, or otherwise-that merely moves the majority to political action may also lead a minority of the movement to rioting or worse. It deliberately created a speech-protective test that was very hard to satisfy.

And that test of course applies equally to all speakers, politicians or otherwise. If an ordinary citizen said what Trump had said, it seems to me very hard to see how prosecutors can show beyond a reasonable doubt that he was intentionally promoting a riot (see, e.g., Hess v. Indiana), or even intentionally promoting trespassing.  

Online Speech Platforms

New York Times: Facebook Bars Trump Through End of His Term

By Mike Isaac and Kate Conger

Facebook on Thursday said it will block President Trump on its platforms at least until the end of his term on Jan. 20, as the mainstream online world moved forcefully to limit the president after years of inaction.

Mark Zuckerberg, Facebook’s chief executive, said in a post that the social network decided to cut off Mr. Trump because a rampage by pro-Trump supporters in the nation’s capital a day earlier, which was urged on by the president, showed that he “intends to use his remaining time in office to undermine the peaceful and lawful transition of power to his elected successor, Joe Biden.”

“We believe the risks of allowing the president to continue to use our service during this period are simply too great,” Mr. Zuckerberg wrote. As a result, he said, Facebook and its photo-sharing site Instagram would extend blocks, first put in place on Wednesday, on Mr. Trump’s ability to post “until the peaceful transition of power is complete.” …

The spotlight now falls on Twitter and what it will do with Mr. Trump’s account…

Jack Dorsey, Twitter’s chief executive, spent Thursday morning liking and retweeting commentary that urged caution against a permanent ban of Mr. Trump. That suggested he would not deviate from the plan to allow Mr. Trump back onto the service.

Twitter said in a statement that it was continuing to evaluate the situation and whether “further escalation in our enforcement approach is necessary.” 

Washington Post: Facebook, Twitter could face punishing regulation for their role in U.S. Capitol riot, Democrats say

By Tony Romm

Facebook, Google and Twitter are staring down the prospect of harsh new regulations in Washington, as politically ascendant Democrats in Congress pledge to take fresh aim at Silicon Valley for its role in stoking the deadly riots at the U.S. Capitol this week.

The violent mob that stormed the House and Senate, leaving the two chambers in lockdown, has emboldened party lawmakers who say that social media sites failed to heed their repeated warnings – and then did too little, too late, in response to President Trump and his incendiary rhetoric online.

In the months to come, some Democrats now are promising to use their powerful new perches – and their control of the White House and Congress starting in a matter of days – to proffer the sort of tough new laws and other punishments that tech giants have successfully fended off for years. Their seething anger could result in major repercussions for the industry, opening the door for a wide array of policy changes that could hold Facebook, Google and Twitter newly liable for their missteps.

“They bear major responsibility for ignoring repeated red flags and demands for fixes,” said Sen. Richard Blumenthal (D-Conn.), who stands to play a key role leading a tech-focused congressional panel in the coming months…”and these events will renew and refocus the need for Congress to reform big tech.”

Federalist: Facebook Will Ban And Delete All Photos And Videos Of Any Aspect Of Wednesday Protests

By Tristan Justice

Facebook announced it would be stripping all photos and videos featuring Wednesday’s riots at the U.S. Capitol, claiming such content promoted criminal activity.

“At this point,” the company wrote, “they represent promotion of criminal activity which violates our policies.” No such widespread censorship was afforded to the left-wing riots erupting last year, killing at least 30 people while reporters stood in front of burning blazes and characterized the events as “peaceful protests.”

Wall Street Journal: Can the Government Regulate Deepfakes?

By Cass R. Sunstein

Does the government have the right to ban [non-libelous] deepfakes? According to the plurality opinion in [U.S. v. Alvarez], “The remedy for speech that is false is speech that is true. This is the ordinary course in a free society.” By this standard, the best response to many deepfakes is a smile and a laugh-or counter-speech and disclosure-rather than censorship. Social media platforms are not bound by the First Amendment, but in cases in which people could be misled, such platforms might want to label deepfakes as such, but not take them down, certainly as a matter of course. Twitter has voluntarily adopted an approach of this kind, potentially adding labels to manipulated media but taking down tweets that contain them only if they are “likely to cause harm.” …

Social-media platforms already make it possible for lies and misinformation-involving health, politics and everything else-to spread instantly to countless people. Deepfakes are going to make things worse. They threaten to aggravate a situation in which ordinary citizens are having an increasingly hard time knowing what is true, and often end up believing those who are best at fooling them. Free speech may be the most important right of all, but both private and public institutions are going to have to think hard about how to apply longstanding principles to unanticipated dangers.