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  • WH Admits Working with Big Tech to Censor, Many Implications

WH Admits Working with Big Tech to Censor, Many Implications

William L. Kovacs

July 2021

WH Admits Working with Big Tech to Censor, Many Implications

The Biden administration confirms it aggressively works with Big Tech “…to flag ‘problematic’ posts “that spread disinformation on Covid-19” on the Internet. George Orwell would call such activity propaganda. Historians characterize such a close working relationship between government and big business, as fascism. To the Biden administration, it’s merely cleaning up “misinformation”.

Whatever the American people believe this close working relationship might be, the key fact is whatever information is allowed into the public square depends on Big Tech’s willingness to allow the “information” into the public square.

A little of the history on this matter before discussing how the Biden administration has opened itself up to significant discovery (written and oral questions under oath) in civil litigation.

On April 15, 2021, this blog was one of the first to post an article on Big Tech as State Actor Having Constitutional Obligations to those whose speech in the public square it denies. At that time, the article had a theoretical evidentiary link based on second-hand media reports. It was part of three articles on breaking up Big Tech without new laws. A second article discussed the fact Congress does not have the constitutional authority to delegate to Big Tech the power to regulate other private parties. The third article discussed how citizens can break up big tech using the techniques of the Left.

Notwithstanding Biden’s broad-ranging Executive Order to twelve agencies to ensure competition in the tech market, it is highly unlikely the Biden administration will seriously take on Big Tech, with new legislation, new regulations, or challenge it in the courts. Big Tech companies are the friends, donors, protectors, and the sycophant speech censor for the Biden administration.

Notwithstanding the rhetoric, if the Biden administration wanted to break up Big Tech, is could bring an antitrust action today. It has not. If Biden wanted to subject Big Tech to lawsuits, Biden could ask Congress to repeal section 230 of the Communications Decency Act that provides Big Tech with immunity from suit. Biden would likely have Republican support but he has not asked Congress for help. Or, Biden could direct the FCC to narrow section 230 immunity through rulemaking by limiting the section to child pornography. He has not directed it. So, more talk, talk and talk from a politician.

To take on Big Tech, other ways must be explored.

The most likely way to take on Big Tech/White House censorship will be in Former President Trump’s class-action lawsuit against Big Tech. Trump claims the Big Tech’s close cooperation with the government makes it a state actor. The Biden administration could also join the lawsuit if it truly believes what it claims. It has not.

Trump’s lawsuit has relied on much the same public information as my April article, which is not sufficient evidence for a court of law.

All changed with Jen Psaki’s (White House Press Secretary) admission, at a press conference on July 15, 2021, that the Biden administration is in regular conversation with Big Tech on censoring “misinformation.” Since the press conference, social media has exploded with commentary on the issue. More commentary is not needed. Psaki’s actual words are what people need to read to appreciate how she opens up many lines of discovery in Trump’s civil lawsuit.

A complete transcript of Psaki’s comments on “misinformation” opens the White House to civil discovery procedures.

[The content in brackets in the brackets after Psaki’s statements identifies the information that could be obtained through civil discovery.]

“Alex: (16:19)
Thanks, Jen. Can you talk a little bit more about this request for tech companies to be more aggressive in policing misinformation. Has the administration been in touch with any of these companies and are there any actions that the federal government can take to ensure their cooperation? Because we’ve seen from the start, there’s not a lot of action on some of these platforms.

Jen Psaki: (16:38)
Sure. Well, first we are in regular touch with these social media platforms and those engagements typically happen through members of our senior staff, but also members of our COVID-19 team. Given as Dr. Murthy conveyed, this is a big issue of misinformation, specifically on the pandemic.

[Possible Civil Discovery: Identification of all participants in the conversation, the substance of each conversation, documents identifying specific disinformation and the basis for determining disinformation.]

Jen Psaki: (16:57)
In terms of actions, Alex, that we have taken, or we’re working to take, I should say, from the federal government, we’ve increased disinformation research and tracking within the Surgeon General’s office. We’re flagging problematic posts for Facebook that spread disinformation. We’re working with doctors and medical professionals to connected medical experts who are popular with their audiences with accurate information and boost trusted content. So we’re helping get trusted content out there.

[Possible Civil Discovery: Identification of all disinformation being conducted and tracked by the Surgeon General’s office, all post flagged for Facebook, the identity of all “trusted” doctors and professionals who will do the outreach.]

[Psaki discusses other issues not relevant to Covid – 19 “misinformation.]

Jen Psaki: (17:27)
We also created the COVID Community Court to get factual information into the hands of local messengers. And we’re also investing, as you’ll have seen, in the President’s, the Vice President’s, and Dr. Fauci’s time in meeting with influencers who also have large reaches to a lot of these target audiences who can spread and share accurate information. You saw an example of that yesterday. I believe that the video will be out for tomorrow. I think that was your question, Steve, yesterday, full follow-up there.

[Possible Civil Discovery: Identification of all local messengers and influencers who share the administration’s version of the facts. Discovery would also include the soon-to-be-released video, who made it, what information was relied on in making it, and What is the COCID-19 court, what will it do and who is on it?]

Jen Psaki: (17:56)
There are also proposed changes that we have made to social media platforms, including Facebook. And those specifically are four key steps. One, that they measure and publicly share the impact of misinformation on their platform. Facebook should provide, publicly and transparently, data on the reach of Covid – 19 vaccine misinformation. Not just engagement, but the reach of the misinformation, and the audience that it’s reaching. That will help us ensure we’re getting accurate information to people. This should be provided not just to researchers, but to the public so that the public knows and understands what is accurate and inaccurate.

[Possible Civil Discovery: Identification of how the government believes Facebook should measure misinformation and the reach of such misinformation? How the government believes Facebook should inform the public of what is the specific misinformation. Additionally, identification of the target audiences and the “accurate” information government wants to reach the public?]

Jen Psaki: (18:32)
Second, that we have proposed that they create a robust enforcement strategy that bridges their properties and provides transparency about the rules. So I think this was a question asked before. There are about 12 people who are producing 65% of anti-vaccine misinformation on social media platforms. All of them remain active on Facebook, despite some even being banned on other platforms, including ones that Facebook owns.

[Possible Civil Discovery: Identification of what the administration considers an appropriate, robust, enforcement strategy Facebook should undertake?  Also, what is the identity of the 12 people producing 65% of anti-vaccine misinformation and the specific misinformation?]

Jen Psaki: (18:58)
Third, it’s important to take faster action against harmful posts. As you all know, information travels quite quickly on social media platforms. Sometimes it’s not accurate, and Facebook needs to move more quickly to remove harmful violative posts. Posts that will be within their policies for removal often remain up for days. That’s too long. The information spreads too quickly.

[Possible Civil Discovery: Identification of the administration’s discussion of what does it want Facebook to do “more quickly?” Additionally, what does the White House consider a quick removal, and how does it determine what “misinformation” should be removed?]

Jen Psaki: (19:19)
Finally, we have proposed they promote quality information sources in their feed algorithm. Facebook has repeatedly shown that they have the leverage to promote quality information. We’ve seen them effectively do this in their algorithm over low-quality information. And they’ve chosen not to use it in this case, and that’s certainly an area that would have an impact. So these are certainly the proposals. We engage with them regularly, and they certainly understand what our asks are.

[Possible Civil Discovery: What proposal has the administration made to Facebook on promoting quality information on their algorithms? What does the administration determine quality information? Is the White House following the guidelines in the Information Quality Act to determine “quality information?” Identify each time the administration has engaged with Facebook or any other Big Tech company on this issue?

[The Information Quality Act requires Federal agencies to comply with data quality guidelines to ensure and maximize the quality, utility, objectivity, and integrity of the information disseminated by the Federal government.]

Alex: (19:45)
One of the problems with vaccines right now is that they become politicized. The White House has obviously made the calculation that it’s important to be more aggressive in confronting this information, but is there at all concern that that could backfire and further contribute to politicization? And is there anything that you can do to prevent that at this point?

Jen Psaki: (20:02)
Well, you’re absolutely right, I should say, Alex, in that we have to be very careful and we are mindful of being quite careful of not politicizing the effectiveness of vaccines. The fact that they can save lives, young people, old people, middle-of-the-road people. It’s important for us, we’ve made a calculation, to push back on misinformation. You’re right.

[Possible Civil Discovery: Identify all the information relied upon in making the calculation to push back on misinformation? Who reviewed the data to make that determination and was all the data subject to the guidelines of the Information Quality Act?]

Jen Psaki: (20:22)
But that’s one of the reasons, as Dr. Murthy was conveying, we have empowered, engaged, funded local voices because they are often the most trusted voices. Doctors, medical experts, clergy, people who are civic leaders in communities. That’s where we are putting most of our resources, even as we are working to combat misinformation that’s traveling online or traveling, unfortunately out of the mouths of elected officials from time to time.”

[Possible Civil Discovery: Identification of all local “trusted” voices to be participants in the administration’s outreach, as well as what resources the administration deploying and the cost of such effort?]

With the July 15, 2021 press conference, Jen Psaki, opened up the administration to answer questions under oath in a civil deposition or by written question. This discovery will likely be used by Trump’s attorneys. With even reasonably good lawyering, the public will discover what the Biden administration believes is misinformation and what is good information, who possesses which type of information, and the rigors of ensuring “good information” is tested against the Information Quality Act. It will also let the public know what information the Biden administration wants us to know is the “truth.” That by itself will be interesting in a day when 58% of people believe media has become “the enemy of the people.”



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  • Opponents of Section 230 Can Reform It Without Congress

Opponents of Section 230 Can Reform It Without Congress

William L. Kovacs

June 2021

Opponents of Section 230 Can Reform It Without Congress

Critics of section 230 of the Communications Decency Act (“sec. 230”) have discussed reforming it for a decade. Section 230 has two primary provisions. The first exempts internet providers from civil liability for publishing any information from a third-party content provider that is objectionable. The second provision exempts Big Tech from liability when it takes voluntary, good faith actions, to restrict objectionable materials or provides the technical means to restrict them.

Unfortunately, like most politicians, sec. 230 opponents talk and talk. Watch and listen to Senators Cruz and Hawley on cable news. While their talk is full of sound and fury, it really signifies the proverbial nothing. Other conservatives introduce antitrust legislation to break up Big Tech, an endless effort for Congress and the courts. A few opponents just want to repeal sec 230, an incomprehensive statute designed to protect children from online predators but used to protect Big Tech.

Republicans controlled Congress and the White House until 2021 and did nothing to address sec. 230. Now, however, with significant help from Big Tech, especially with campaign contributions and the selective use of algorisms, Democrats gained control of Congress and the White House in 2021. As a result, Democrats will protect Big Tech, as long as it bans conservatives from its platforms. Being free of liability has allowed Big Tech to grow in size and wealth while achieving regulatory control over social media. Big Tech is so powerful, it even banned a sitting President from Facebook and Twitter. In addition, Google and Apple blocked Parler’s App from their stores, and Amazon Web Services suspended Parler’s access to its cloud network, thereby shutting it down for months.

Unless conservatives take innovative, concerted action outside of Congress, Big Tech will remain free to ban conservative voices from social media as long as Democrats hold the White House. It is now time for conservatives to take action or get off the pot.

Fortunately, there are many actions that can be taken with the drama of an inept Congress.

Several times on these pages I have argued that sec. 230 is an unconstitutional delegation of power to private sector companies to regulate other private sector companies. Congress has no constitutional power to authorize private parties to deprive, even unpopular citizens, of their constitutional rights. Moreover, when private parties control the new public square, they function as a state actor and must provide constitutional rights for all.

These principles are set out in Carter v. Carter Coal Company, (1935) and  Marsh v. Alabama, (1946). Since the First Amendment severely limits governments’ power to regulate political speech, the government cannot grant private parties, functioning as a government, more power than it has. If Congress desires to impose speech limitations on the Internet, it must do so directly, by government regulation that protects the constitutional rights of citizens.

Opponents of sec. 230 can take several actions to achieve reform.

Action 1: file a lawsuit asserting sec. 230 is an unconstitutional delegation of congressional authority. Perhaps the newly formed America First Legal will take on the issue. Free speech is just as important as illegal immigration.

Action 2: Join Florida in its attempt to restrain the power of Big Tech. Governor DeSantis (R-FL) proposed and had passed a law prohibiting Big Tech from de-platforming the speech of political candidates and imposed fines on violators as high as $250,000 a day. Florida also allows citizens to sue companies violating the law. However, the penalties will not impact Big Tech’s actions. A few weeks ago, Google, with a market capitalization over $1 trillion, settled an antitrust case with French authorities for $270 million, a fraction of a percent of its worth. These individual attempts to control the power of Big Tech will be of limited success against the five largest tech giants having a value of $ 5.2 trillion. The state of Florida’s budget is $101.5 billion. The 2021 combined budget for all fifty states is $2.1trillion. Additionally, Big Tech is challenging the constitutionality of Florida’s law.

Action 3: to break Big Tech’s stranglehold on free speech in social media, conservative groups could craft and implement an advocacy plan to restrict the application of sec. 230 without passing a new law. The model for this effort is the radical Left’s brilliant strategy to regulate climate change without passing any new law.

To seriously challenge Big Tech, conservatives will need to develop and implement a coordinated and aggressive strategy that includes legislators, governors, attorneys general, interest groups, legal centers, and citizens who want freedom of speech in the public square.

A similar strategy worked for the radical Left when it developed, coordinated, and implemented its plan to impose climate change regulation on the U.S. without Congress passing a climate change law. The strategy’s components:

  1. Using Administrative Procedure Act laws, file petitions with federal and state agencies to initiate rulemaking to change regulatory policy.
  2. If the petitions are denied, a coalition of states, cities, and non-profit organizations will appeal the denial to the courts.
  3. Use states as lead petitioners in court challenges to secure special standing recognized by the U.S. Supreme Court.
  4. Organize states with similar policy views into regional working units, similar to Compacts, designed to regulate activities of regional concern. For example, nine states in the Northeast and Mid-Atlantic, and three west coast states, formed regional compacts to address climate concerns.
  5. Encourage state Attorneys General, and coalitions to sue on innovative legal theories. One example would be Big Tech’s potential liability for flagging posts as “misinformation,” which were later found to be credible, and Big Tech retracted its label. Specifically, Facebook’s recent retraction of its ban on posts concerning coronavirus leaks from a Chinese lab. Under section 230(f)(3), when Facebook labels a third-party’s content “misinformation,” it is acting as an authoritative speaker on its platform by producing, in whole or in part, new content with the third party. Since section 230 protects platforms, not speakers, Facebook’s speech no longer has immunity from civil liability, and facts supporting its new content may be subject to civil discovery.
  6. Environmental groups brought hundreds of NEPA cases to deny permits to oil and gas operations. NEPA lawsuits could also be brought to block permits for Big Tech’s massive energy-consuming data centers that make the Internet viable, just as permits allow big energy to get its product to market.
  7. Environmental organizations and state attorneys general brought over One Thousand lawsuits against the government and private parties in the U.S. to impose climate regulation. A similar approach could be launched against Big Tech each time it censors “objectionable” content.
  8. Perhaps s a class action suit against Big Tech is appropriate by those whose comments on the lab leak were flagged as “misinformation.”

If conservatives are serious about reforming section 230, they have all the tools for success: 27 Republican governors, 25 Republican Attorneys General, and certainly the numerous groups believing in free speech. Recently, twenty-five red states independently opted out of accepting extra federal unemployment benefits. These actions demonstrate a significant base of potential support. The key to success rests in the conservative’s willingness to plan, organize and implement like the Left.

Message to conservatives: If sec. 230 is truly the concern you make it to be; it’s time for the talking to stop and the action to start.

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  • Big Tech Is a State Actor Having Constitutional Obligations

Big Tech Is a State Actor Having Constitutional Obligations

William L. Kovacs

April 2021

Big Tech Is a State Actor Having Constitutional Obligations

Readers of the political press are familiar with the actions of Big Tech to censor the social media speech of former President Trump, several Republican Congressman, and purges of thousands of conservative social media accounts. Since these actions were taken by private parties against private parties, it is generally assumed the Constitution does not apply and Big Tech, with congressional immunity from suit, can regulate the Internet activities of private parties as it wishes.

When Big Tech uses the powers authorized by section 230 of the Communications Decency Act (“CDA”) to restrict access to materials on the Internet it considers “objectionable,” it is acting for the state (“State Action”). As a state actor, Big Tech must provide the same constitutional protections as the government provides.

In a prior article, I argued section 230 was an unconstitutional delegation of authority by Congress to private parties. The seminal case supporting this position is  Carter v. Carter Coal, a 1936 U.S. Supreme Court case invalidating the delegation of government power to private coal producers to regulate other coal producers. The court characterized such action as “Legislative delegation in its most obnoxious form.” The holding has not been challenged for 85 years.

Unfortunately, Congress continues to ignore its unlawful delegation while Big Tech continues to regulate speech in the social marketplace as if the delegation is valid. Due to the significant impact on free speech, this controversy should be quickly resolved.  There are three possible outcomes: Congress re-writes the statute; the court declares section 230 constitutional or unconstitutional, or courts provide due process rights for objectionable speakers deprived of free speech by state actors. The first two options are years in the future. Affording due process can be immediate.

When are actions by private parties State Action?

There are two situations in which the actions of private parties are deemed State Action: (1)     there is a close relationship between the actions of the private party and what government seeks to have accomplished; or (2) the private party performs a traditional government function.

 Constitutional protections are mandated when private parties are state actors

While State Action is a factual matter, the Supreme Court, in Skinner v. Railway Labor Executives’ Assn. (Labor Assn.) ruled on a situation similar to the actions of Big Tech. In Skinner, the government authorized but did not compel, private railroads to drug test employees as part of accident investigations. Railroads voluntarily conducted the tests. The Labor Assn. sought to enjoin the railroads from conducting drug tests, claiming unlawful searches in violation of the Fourth Amendment. The Supreme Court held that while the railroad’s program was a private initiative, the tests, encouraged by the government, cannot be viewed as private action outside of the reach of constitutional protections, i.e., state action.

As with Skinner, section 230 of CDA, did not compel Big Tech to restrict materials it deemed objectionable. Moreover, like Skinner, the government’s grant of section 230 immunity and power to restrict materials, produced a close relationship between Big Tech and government that encouraged Big Tech to actively implement government’s goals, i.e., state action.

Another case, Marsh v. Alabama involved a company-owned town that operated like any other town, except that it prohibited the distribution of certain religious literature. The U.S. Supreme Court held when private parties exercise powers traditionally reserved for the state, they perform a public function; thus, bound to respect constitutional rights, the same as government.

The private parties owning the town of Marsh, like the private parties operating the Internet, both regulated speech. When Big Tech controls speech in the public square, it exercises state regulatory power. And, like Marsh, it must respect the constitutional rights of those in the square.

Courts have the power to immediately protect objectionable free speech

The actions of Big Tech are State Actions reviewable by courts that can balance the property interests of private parties against the free speech and due process rights of objectionable speakers.

Determining the process due a litigant depends on the situation. If only property rights are involved and other administrative processes are available to protect those rights, a hearing is generally not required before the deprivation occurs. However, when fundamental liberties, e.g., speech, are involved, courts must provide hearings before the deprivation of rights occurs.

While litigants cannot seek monetary damages due to Big Tech’s immunity from civil liability, they can seek a hearing for injunctive relief and discovery of why their free speech is being denied, before losing their right to speak in the public square.

This article was originally published in The Hill.

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  • What Democrat One-Party Rule in U.S. Looks Like (Part II

What Democrat One-Party Rule in U.S. Looks Like (Part II

William L. Kovacs

February 2021

What Democrat One-Party Rule in U.S. Looks Like (Part II

Part I, “Unity Not Possible When Government Is in Overdrive” discusses the 52 Executive Orders (“EOs”) issued by President Biden in his first few weeks in office and how these wide-ranging directives will substantively change our legal system without any statutory changes or constitutional amendments. Part II explores how Democrats and their friends in the media will attempt to change the fundamental structure of the U.S. to achieve permanent, one-party rule.

The two major political parties have both sought one-party rule for decades but with little success. The American people have always have had enough smarts to stop them in the next election, usually due to political leaders ignoring commonsense.

But this time it may be different due to the horrific seizing of the Capitol on January 6, 2021. The events of that day will be justification for using every power of government, and its friends in the media, to build a permanent one-party, Democrat ruled state. The building blocks are in place and set forth below.

Big tech, big censorship

Big tech detests Trump for his calls to repeal section 230 of the Communications Decency Act which gives it immunity from civil suit for any actions taken to “police” the Internet, including censorship. The January 6, 2021 riot, gave big tech the excuse needed to censor the speech of then president Trump and his conservative allies.

Days after the invasion of the Capitol, Big Tech, a group that poured hundreds of millions of dollars into helping Democrats win the 2020 election, launched a surprise attack on web content they deemed objectionable. Twitter permanently banned President Trump’s account, wiping out his contact with 88 million followers and banned thousands of conservative social media accounts. Google and Apple blocked Parler’s App from their stores, and Amazon Web Services denied Parler access to its cloud network. Parler was shut down. A swath of conservatives lost the ability to speak on the Internet, the nation’s new public square.

Big business, big labor implements a successful conspiracy to change voter perception of information

Big business, i.e., the U.S. Chamber of Commerce, a traditional ally of Republicans, joined with the AFL-CIO and big tech, to take down Trump and conservatives. A Time Magazine article The Secret History of the Shadow Campaign That Saved the 2020 Election, proudly claims victory in its account of the inner workings of a little-noticed cabal effort to “protect the election” from what they viewed as “disinformation.” The conspiracy touched every aspect of the election, from voting systems to lawsuits to ensure massive vote by mail, to pressuring social media companies to remove what they believe to be “disinformation.” The cabal’s goal was to secretly “…influence voter perceptions, change voting rules and laws, steer media coverage, and control the flow of information” [received by voters]. The cabal claims the conspiracy was “… not rigging the election; [it was] they were fortifying it.”

The cabal achieved its purpose – it changed the voting system by changing laws and regulations governing the election, generated negative media coverage of Republicans, and controlled the flow of information voters received about the election. To this day, social media continues its censorship of some conservative speech, including a lifetime-ban on Trump’s Twitter account. In a recent opinion piece by James Freeman of the Wall Street Journal, he notes “…that the most consequential use of this censorship tool in 2020 was an abusive blocking of true information” such as “… the New York Post’s reporting on the Biden family influence peddling” which was suppressed by Twitter and other media outlets.

Democrats seek to punish Republican members of Congress

The Democrat Speaker of the House claims her members are at risk of harm, and “the enemy is within the halls of Congress.” Democrats in Congress seek to punish members of the Republican party who exercised their right to object to electors under 3 U.S.C. sec.15, including expulsion. Democrats advocate for creating an enemies list containing the names of Trump supporters and deny them jobs in the private sector. A counsel for PBS even called for sending the children of Trump’s supporters to re-education camps. Katie Couric told Bill Maher that members of President Trump’s “cult” need to be “deprogrammed.” The Democrats’ obsession with purging former president Trump, those who worked for him, and even some who voted for him, will likely continue until Trump and his allies are cancelled.

D.C. becomes a military state

26,000 national guard troops are brought to D.C. to protect the Capitol during the inauguration, about five times more than in Afghanistan and Iraq combined. Congressman Van Drew commented, “It looked like [Biden was] getting sworn in in Venezuela…” The military will leave 5,000 – 7,000 troops in D.C. and massive fencing around the Capitol, for several more months, at least. Moreover, the Department of Homeland Security (“D.H.S.”) issued a terrorism advisory that there is a “heightened threat environment across the United States that is likely to persist over the coming weeks.” D.H.S. admitted it has no information of any creditable plot.

Will DC be a perpetually occupied military zone to protect a government that fears its citizens? Is this the beginning of military control of the nation? Is this the new image of America to the world?

Investigative reporter, Glen Greenwald, cautions that fighting “domestic terrorists” presents dangers “…when governments, exploiting media-generated fear and dangers, arm themselves with the power to control information, debate, opinion, activism, and protests.”

Packing the Supreme Court to form a radical-left majority

Additionally, the president announced a commission to study reforming the U.S. Supreme Court, including the need for additional justices. The commission will be run out of the office of the White House counsel. Is this the first step to packing the court to dilute the active conservatives’ 5 – 4 majority? Is this the end of even the appearance of a neutral Supreme Court? Can a political Supreme Court uphold the rule of law?

D.C. Statehood

The DC mayor is demanding statehood as promised by the Democrats. Our Constitution allows Congress to admit new states into the Union by majority vote. The Democrat-controlled Congress supports it and has the votes to pass it. If Republicans launch a filibuster, Democrats can repeal it merely by changing the Senate rules as done by Senate Majority Leaders Reid and McConnell for judicial and cabinet-level appointments. Such a move would give Democrats two additional Senate seats and likely control of the Senate for decades. It would also position Democrats to admit additional Democrat states such as Puerto Rico.

Eliminate the Electoral College

Then there is the non-threatening sounding proposal “The National Popular Vote Interstate Compact” (“N.P.V.”). Under N.P.V., by agreement with other states in the compact, a state awards all its electoral votes to the presidential candidate who wins the popular national vote, notwithstanding who wins the popular vote in the respective states. The compact goes into effect when the states controlling the majority of electoral votes (270) join the compact. Fifteen states, representing 196 electoral votes, have already adopted the compact. The measure is still active in states having 97 electoral votes and controlled by Democrats.

Democrats have two years to install a one-party rule, or else?

Democrats have two years with control of the House, Senate, and presidency to transform the U.S. into a nation of one-party, rule, a type of rule common in many authoritarian countries.

If the Democrats fail to impose one-party power after forceful attempts to deny freedom of speech to many conservatives,  punishing duly elected members of Congress for exercising their statutory rights, rule by executive fiat, packing the Supreme Court, adding new states to ensure Democrats control the Senate, eliminating the electoral college without a constitutional amendment and opening the southern border to anyone who might be a Democrat supporter, Democrats will be soundly rebuked by the voters. The Democrat party will be the ninth political party to sink into oblivion.

Our Constitution, is a broad and vague document that can sanction freedom or permit one-party rule enforced by oppressive legislation, massive regulation and a political judiciary. Reform the Kakistocracy: Rule by the Least Able or Least Principled Citizens concludes by noting the U.S. has reached a fork in the road. Depending on the path it takes, “…posterity will reap the fruits of success or suffer the slide from being exceptional to experiencing the perpetual frustrations of mediocrity, growing poverty, and a dimmer future. The future is ours to create.”

Published first in The Libertarian Republic

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  • Section 230 Unconstitutional Delegation of Power to Big Tech

Section 230 Unconstitutional Delegation of Power to Big Tech

William L. Kovacs

January 2021

Section 230 Unconstitutional Delegation of Power to Big Tech

In the frenzied days after Democrats won control of Congress, the presidency, and rioters invaded the Capitol, Big Tech, relying on section 230 of the Communications Decency Act, for immunity from civil suit, launched a surprise attack on web content they deemed objectionable. Twitter permanently banned President Trump’s account, wiping out his contact with 88 million followers and banned thousands of conservative social media accounts. Google and Apple blocked Parler’s App from their stores and Amazon Web Services (“AWS”) denied Parler access to its cloud network. Parler was shut down. A swath of conservatives lost the ability to speak on the Internet, the nation’s new public square, the place where political ideas are exchanged, and commerce flows.

Two questions must be answered –

  1. Can private parties controlling the public square, deprive citizens of their right to free speech? and
  2. Can Congress empower private parties to regulate competitors?

Congress spectacularly muddled section 230 and the U.S. Supreme Court has not addressed it. Fortunately, decades-old Supreme Court cases involving the tech giants of yesteryear, i.e. coal companies, railroads, and company towns, provide guidance on the limits of big tech’s power to regulate the public square.

What does section 230 do?

Section 230 has two primary provisions. The first exempts internet providers from civil liability for publishing any information from another content provider that is objectionable. The second provision exempts Big Tech from liability when it takes voluntary, good faith actions, to restrict objectionable materials or provides the technical means to restrict them.

Private parties cannot deprive unpopular citizens of constitutional rights when governing the public square

By granting Big Tech immunity from civil liability when restricting material from the Internet it deemed objectionable, Congress encouraged and indirectly authorized private parties to regulate speech.  Congress has no constitutional power to authorize private parties to deprive, even unpopular citizens, of their constitutional rights. Moreover, when private parties control the new public square they function as a government and must provide constitutional rights for all.

These principles are set out in Marsh v. Alabama, (1946). Marsh, a privately owned town, made it illegal for persons to distribute religious literature on its sidewalks. Since the town functioned like any other community having speech and commerce, citizens in the town had the same rights as if in a municipal town. When private parties wield great power over the public’s use of town services, the powers of the private parties are circumscribed by the statutory and constitutional rights of those using the town. Private property rights are not sufficient to justify restricting fundamental liberties.

Since the First Amendment severely limits governments’ power to regulate political speech, the government cannot grant private parties, functioning as a government, more power than it has. If Congress desires to impose speech limitations on the Internet, it must do so directly, by government regulation that protects the constitutional rights of citizens.

Congress cannot grant private parties the right to regulate competitors

By refusing to sell Parler’s app, and by denying Parler’s access to cloud storage, Google, Apple, and AWS, private parties, relying on a congressional grant of civil immunity, took, in essence, regulatory actions to put another private company out of business. Congress has no constitutional authority to authorize, or foster conduct by private parties, that allows them to regulate other businesses. This has been the law since the U.S. Supreme Court’s decided Carter v. Carter Coal, (1936).  

In Carter, Congress delegated to coal producers and miners the power to impose standards on other producers and miners.  Carter held a private entity “…may not be entrusted with the power to regulate the business of another, and especially a competitor. Any statute which attempts to confer such power undertakes an intolerable and unconstitutional interference with personal liberty and private property. The delegation is so clearly arbitrary, and … a denial of…due process…”

By granting immunity from liability to big tech for restricting materials Big Tech deems objectionable, Congress is sanctioning the regulation of private parties by other private parties, an action it has no constitutional authority to authorize. Regulating competition is the responsibility of the government.

The principles in Carter were upheld by the DC Circuit as recently as 2013 in American Assn of Railroads v.US DOT (reversed on other grounds).

Section 230 immunity from suit encourages Big Tech to assume the regulatory functions of government by regulating the rights of other businesses to speak and compete in the public square. The Constitution does not give Congress or private parties this power.

This article was first published by The Hill.