Thanks for your thoughtful and carefully reasoned essay.
I disagree with your reasoning.
To address your ultimate point—the rising lawlessness of our nation—I believe that has already been in the works for many years precisely because of the lack of respect for the Law that “living Constitution” theorizing has engendered.
A “living Constitution” will always fall into abuse at the hands of judges, whose power, unbounded by any fixed principle, will inevitably be exercised in favor of their private preferences, which may or may not align with the “Will of the People.” Ironically, you seem to recognize the workability of originalism when you note that Alito is “right” in his reasoning, based on his informed judgment that abortion, at the time of Roe, was not deeply rooted in the nation’s history and traditions, a point that must be readily conceded by any reasonable person.
Yet it was the Court in 1973 that steered the nation off the rails of Constitutionalism (a term that I would prefer to “originalism”) by declaring such rights, ex nihilo, out of the majority’s own preferred outcome. Not that the rails hadn’t already been bent. Certainly, we can trace this type of derailing amongst various areas of Supreme Court jurisprudence back to the New Deal era and probably further if we took the effort (the Dred Scott case, for example). The temptation (and opportunity) to abandon Constitutionalism will always be with us.
The Framers of our republic left us a good legacy. At the Federal level, we have the Congress, imbued with Article 1 enumerated powers (only enumerated powers, not others). For the many reasons articulated in your piece, the Legislative power fails the People. Not only that, the legislative power of the several states is the true repository of political power, including the power of the people of the states to amend and design their own state Constitutions, fashioning their own standards for state constitutional rights, a liberty that numerous states have vigorously exercised and constitute to do so in our own day.
At the Federal level, they left us the legacy of a process for amending our Federal Constitution, a practice seemingly almost entirely forgotten (even spurned) in our own generation as well as in the rising ones. Who could imagine, for example, the majority of the Supreme Court of 1990 thinking that the Nineteenth Amendment was necessary, since “clearly” a woman’s right to vote was already instantiated in Substantive Due Process and incorporated to the states by the Fourteenth Amendment? The “New America” has seemingly come to expect the Supreme Court, nine unelected persons, to handle the nation’s Constitutional amendments for them.
From whence does this “New America” derive? I suggest it is born of Constitutional “worship.” You say it is the worship offered by the originalists who “insist that we remain forever anchored in the inerrant wisdom and foresight of the Framers.” But whereas “living constitutionalists” accuse originalists of overly reverencing the Constitution, reading its text strictly according to historical examples and original intent, it is in fact the “living constitutionalists” that are most to blame for the “New America.” It is they who worship the text of the Constitution, supposing that embedded therein lie eternal principles of justice and universal rights that can be divined from the dusty and ancient text only by Supreme Court Justices, the priests of the Constitution, alone worthy to read the entrails and proclaim to us out of their mystic wisdom those judicial oracles that must guide our own times.
The originalists see the Constitution for what it is: clunky and old, and filled with limitations, and maintaining that those limitations should be openly observed when reached so that the people can change their laws to reflect new or emerging values. Indeed, originalists see the Constitution as living because it is amendable. It must be, for such a document could never endure if forever fixed in the mode of 1789. That is not to say that there isn’t still a lot of 1789 left in us, but it must move and change in some respects to reflect the values of the people whom it governs. For if a people’s governing document no longer reflects their values, then they will understandably spurn it, and, as you fear, will reject Law. And lawlessness is a pernicious evil.
The Constitution is a document designed for a free people, a thinking and rational people, a people willing to be meaningfully engaged in their own political destiny, and to do so together against their competing interests and values, and with compromise and expediency. Behind our Constitution were revolutionists who dared to break away from what they considered tyrannical rule and jump together into the unknown. Perhaps it could be said that we will never be worthy of (or successful inside) the framework they have left for us unless we are willing to be like them, willing and able to be engaged as a people ever ready to frame their own government anew as the need arises, and educated enough in the art and science of politics to govern ourselves, or recognize those to whom such important work should be entrusted, and the manner of its entrustment. I suspect that our ineptness in this regard is our emerging problem, and I have no ready solution for it. Perhaps the “New America” is ungovernable except by tyranny. I hope not.
Your article seems to put the onus on the Court to change its philosophy, as if adopting the reasoning and methodology of Sotomayor, Kagan, and Katanji-Brown is the thing needed to hold our democracy together. I would encourage you to abandon this cynical and empty approach, as if the political solution for the country turns on the Supreme Court acting as the replacement for our ineffectual legislative branch, or that a descending lawlessness is to be placed at the Court’s feet because they refuse to act as the kind of legislature you would like and adhere to a judicial philosophy that maintains judges are only interpreters of the People’s Will expressed in written texts, not political priests.
On the subject of a court acting as a legislature, I will let Justice Scalia speak (from his dissent in Casey):
In truth, I am as distressed as the Court is—and expressed my distress several years ago, see Webster, 492 U.S., at 535—about the political pressure directed to the Court: the marches, the mail, the protests aimed at inducing us to change our opinions. How upsetting it is, that so many of our citizens (good people, not lawless ones, on both sides of this abortion issue, and on various sides of other issues as well) think that we Justices should properly take into account their views, as though we were engaged not in ascertaining an objective law but in determining some kind of social consensus. The Court would profit, I think, from giving less attention to the fact of this distressing phenomenon, and more attention to the cause of it. That cause permeates today’s opinion: a new mode of constitutional adjudication that relies not upon text and traditional practice to determine the law, but upon what the Court calls “reasoned judgment,” ante, at 7, which turns out to be nothing but philosophical predilection and moral intuition. All manner of “liberties,” the Court tells us, inhere in the Constitution and are enforceable by this Court—not just those mentioned in the text or established in the traditions of our society. Ante, at 5-6. Why even the Ninth Amendment—which says only that “the enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people”—is, despite our contrary understanding for almost 200 years, a literally boundless source of additional, unnamed, un-hinted-at rights, definable and enforceable by us, through “reasoned judgment.” Ante, at 6-7.
What makes all this relevant to the bothersome application of “political pressure” against the Court are the twin facts that the American people love democracy, and the American people are not fools. As long as this Court thought (and the people thought) that we Justices were doing essentially lawyers’ work up here—reading text and discerning our society’s traditional understanding of that text—the public pretty much left us alone. Texts and traditions are facts to study, not convictions to demonstrate about. But if in reality our process of constitutional adjudication consists primarily of making value judgments; if we can ignore a long and clear tradition clarifying an ambiguous text, as we did, for example, five days ago in declaring unconstitutional invocations and benedictions at public high school graduation ceremonies, Lee v. Weisman, 505 U. S. 577 (1992); if, as I say, our pronouncement of constitutional law rests primarily on value judgments, then a free and intelligent people’s attitude towards us can be expected to be (ought to be) quite different. The people know that their value judgments are quite as good as those taught in any law school—maybe better. If, indeed, the “liberties” protected by the Constitution are, as the Court says, undefined and unbounded, then the people should demonstrate, to protest that we do not implement their values instead of ours. Not only that, but confirmation hearings for new Justices should deteriorate into question-and-answer sessions in which Senators go through a list of their constituents’ most favored and most disfavored alleged constitutional rights, and seek the nominee’s commitment to support or oppose them. Value judgments, after all, should be voted on, not dictated; and if our Constitution has somehow accidentally committed them to the Supreme Court, at least we can have a sort of plebiscite each time a new nominee to that body is put forward. Justice Blackmun not only regards this prospect with equanimity, he solicits it. Ante, at 22-23.
* * *
There is a poignant aspect to today’s opinion. Its length, and what might be called its epic tone, suggest that its authors believe they are bringing to an end a troublesome era in the history of our Nation and of our Court. “It is the dimension” of authority, they say, to “call the contending sides of national controversy to end their national division by accepting a common mandate rooted in the Constitution.” Ante, at 24.
There comes vividly to mind a portrait by Emanuel Leutze that hangs in the Harvard Law School: Roger Brooke Taney, painted in 1859, the 82nd year of his life, the 24th of his Chief Justiceship, the second after his opinion in Dred Scott. He is all in black, sitting in a shadowed red armchair, left hand resting upon a pad of paper in his lap, right hand hanging limply, almost lifelessly, beside the inner arm of the chair. He sits facing the viewer and staring straight out. There seems to be on his face, and in his deep-set eyes, an expression of profound sadness and disillusionment. Perhaps he always looked that way, even when dwelling upon the happiest of thoughts. But those of us who know how the luster of his great Chief Justiceship came to be eclipsed by Dred Scott cannot help believing that he had that case—its already apparent consequences for the Court, and its soon to be played out consequences for the Nation—burning on his mind. I expect that two years earlier he, too, had thought himself “calling the contending sides of national controversy to end their national division by accepting a common mandate rooted in the Constitution.”
It is no more realistic for us in this case, than it was for him in that, to think that an issue of the sort they both involved—an issue involving life and death, freedom and subjugation—can be “speedily and finally settled” by the Supreme Court, as President James Buchanan in his inaugural address said the issue of slavery in the territories would be. See Inaugural Addresses of the Presidents of the United States, S. Doc. No. 101-10, p. 126 (1989). Quite to the contrary, by foreclosing all democratic outlet for the deep passions this issue arouses, by banishing the issue from the political forum that gives all participants, even the losers, the satisfaction of a fair hearing and an honest fight, by continuing the imposition of a rigid national rule instead of allowing for regional differences, the Court merely prolongs and intensifies the anguish.
We should get out of this area, where we have no right to be, and where we do neither ourselves nor the country any good by remaining.
You say, “Originalists seem to be possessed of the quasi-religious belief that anything short of total fidelity to the language and world view of the Eighteenth Century will take us down a slippery slope of relativism and lead to the complete breakdown of the Constitution as an institution. And so, as we move further and further from the language and world view of the Eighteenth Century, originalists like Justice Alito insist that we remain forever anchored in the inerrant wisdom and foresight of the Framers.”
But I think it is the “living constitutionalists” that are to blame for the growing lawlessness arising out of a sense that the Constitution should not be amended, but ever interpreted.
On the occasion of the end of the October 2021 Term of the Supreme Court of the United States
…to secure these [inalienable] Rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed, …
Thomas Jefferson (1776)
Ordered liberty sets limits and defines the boundary between competing interests.
Associate Justice Samuel A. Alito, Jr. (2022)
Agreement Across the Abyss
As bitterly divided as this country is ideologically, there is greater than 60% agreement on at least a dozen important issues—including the right to abortion (61% – Pew, 2022), the right to gay marriage (71% – Gallup, 2022), reasonable gun restrictions (63-87%, depending on the proposed restriction – Pew, 2021), regulation of carbon emissions and public investments in clean energy (71-90%, depending on the proposal – Pew, 2020) and several others—including many aspects of police reform (63-89%, depending on the proposal – University of Maryland, 2020).
If democracy were working in the United States, we would already have Federal laws establishing and protecting abortion rights, marriage rights, gun safety, emissions standards, and the rest—because these are things that a supermajority of Americans want.
But we are falling far short of the promise of American democracy—government of, by and for the people. Objectively, a huge segment of our existing laws and regulations conflict with the will of the majority of our citizens, and precious few broadly supported proposals for new legislation are ever enacted.
How did this happen?
Origins of the Electoral College
The Framers of the Constitution were determined to immunize the Republic against the “Tyranny of the Majority,” a danger that Western political philosophers dating back to ancient Athens had long held was the chief vulnerability of democracy, and against potential abuses of Presidential power. The Southern delegates to the Convention were concerned specifically with protecting the institution of chattel slavery from Northern abolitionist “tyranny.”
One of several preventative devices that the Framers established was to grant both greater parliamentary and greater electoral representation per capita to the citizens of less populous (“smaller”) states than to the citizens of more populous (“larger”) states. Without these assurances—to allay Southern fears that the more numerous and more populated Northern states might garner Congressional and Presidential power sufficient to end slavery—the Union of the colonies would not have endured.
The Electoral College was born of the same concern—to protect minority interests generally (not only slavery) from being trampled upon by “mob rule.” Ironically, for all their grand declarations about all men being equal and liberal democracy being the best form of government ever devised, many of the Framers had serious reservations about the new Enlightenment values. It all sounded great on paper. But, at the time, liberal democracy was largely untested, and no one could be certain that We the People would act out of reason, rather than passion. Many feared that a populist tyrant might assemble a popular majority and ascend to the Presidency by swaying impressionable, under-informed voters—perhaps they were onto something!
“Every white, male landowner shall have his say at the ballot box,” they reasoned. “But, as a safeguard against passion-driven voters unknowingly electing an un-democratic, incompetent, or even tyrannical Executive, we will let a small cadre of the ‘smartest’ men from each state—the ‘Electors’—make the final decision.”
From the beginning, the Framers installed an oligarchic “escape hatch,” just in case liberal democracy turned out to be messier than anticipated[1]. Very likely they were influenced by those among the ancient Greeks who were enamored with the possibility of a non-tyrannical aristocracy comprised of wise, benevolent, virtuous leaders acting in the public good (e.g., Plato’s “Philosopher Kings” who embody the union of wisdom with political power). While most of their writings reflect a quite enlightened view of human nature, the Framers could be intermittently naïve. According to Alexander Hamilton, they hoped that the decentralized structure and short tenure of each Electoral College would minimize the likelihood of widespread corruption (see The Federalist, No. 68).
The Framers wanted to believe wholeheartedly in government by consent of the governed, but they could not quite bring themselves to go all-in. That is why they established the Electoral College. The elites of the Electoral College would save the people from their own irrationality, should that ever become necessary. The elites would have discretion to overrule the People’s Will, should the people ever make an “irrational” choice for President of the United States.
Over-Representation of Smaller States in Presidential Elections
The Electoral College as originally conceived was a temporary, independent body consisting of Electors, appointed by state legislatures[2], who had free reign to elect the President, regardless of general election results. In time, however, each state passed legislation compelling its Electors to vote in accordance with the will of the state’s voters, as reflected in the popular vote count. With Electors stripped of the power to vote independently, the Electoral College lost its raison d’être and electoral vote counting became a mere formality. The Framers’ oligarchic “escape hatch” was thereby rendered ineffectual.[3]
This disempowerment of the Electors brought the country a step closer to true representative democracy. That’s the good news.
Unfortunately, in the course of making this change, all but two of the states made a grievous error. They replaced the autonomy of the Electoral College with something almost as un-democratic: except for Nebraska and Maine, every state passed legislation allocating all of its electoral votes to the presidential candidate who wins its popular vote. As a result, presidential elections are decided based on fifty discrete state elections—each having a population-based “point value”—rather than one unified national election.
Consequently, in two presidential elections since 2000, the “winner” lost the national popular vote, yet he ascended to the Presidency on the basis of having tallied more electoral votes than his opponent.
If, instead, the states had decided to allocate their electoral votes in proportion to the number of popular votes cast for each candidate—as Nebraska and Maine do—any incongruity between the popular and the electoral vote counts would be extremely unlikely[4].
It is not the existence of the Electoral College per se that is yielding un-democratic election results in the modern era. It is the “winner-take-all” allocation of electoral votes by the states that is fatally flawed.
What, specifically, is wrong with the existing “winner-take-all” approach?
The over-representation of small-state residents in presidential elections was agreed to by the Framers and has been a feature of our electoral system from the beginning. But the disparity has gotten worse over time.
In 1790, each resident of Delaware (the smallest state) enjoyed 81% more representation in the Electoral College than each resident of Virginia (the largest state)—not quite double[5] (see orange line in Chart 1).
Today, the residents of Wyoming have 281% more influence on the electoral vote count than their friends in California. Another way of saying the same thing is that the electoral influence per capita of Wyoming is almost quadruple that of California (see blue line in Chart 1).
Chris Ricchetti Chart 1
But the problem is worse than that—much worse.
Due to the “winner-take-all” allocation of electoral votes adopted by forty-eight of the fifty states, “blue” voters living in “red” states are quite literally disenfranchised, as are “red” voters living in “blue” states. For example, not only does voting for the Republican presidential candidate in the true-blue state of Illinois have no effect on the outcome of the election, simply by virtue of living in Illinois (and being counted in the census), Republican voters actually add to the electoral influence of their Democratic opponents!
At this point in our history, most states are either solidly “red,” or solidly “blue,” which means that voters in the remaining “swing states” are the real deciders. In only twelve of the fifty states is there any reasonable chance that either presidential candidate could win. And there are probably only seven states now that are truly competitive—Florida, Pennsylvania, Ohio, North Carolina, Michigan, Wisconsin, and Iowa. Georgia may soon become competitive and, eventually, Texas will too.
Even in the swing states, where voting matters most, all of the votes cast for the candidate who ultimately loses a state’s popular vote are essentially disregarded, as 100% of each state’s electoral influence goes to the state’s popular vote winner.
This is no way to run a democratic republic. Even the Framers were not altogether satisfied with the Electoral College system they had devised. But after one hundred days of exhausting deliberations, it was the only system on which they could agree.
Over-Representation of Smaller States in The Senate
Here again, some degree of unequal representation was agreed to by the Framers—to assure smaller states of meaningful participation in the legislative process.
In 1790, Delaware’s per capita representation in the Senate was 12.7 times greater than Virginia’s (see orange line in Chart 2).
Today, Wyoming’s per capita Senatorial representation is 68.5 times greater than California’s—more than a five-fold increase in the Senatorial representation gap since 1790 (see blue line in Chart 2).
Chris Ricchetti Chart 2
In fact, the 25% of Americans who live in the smallest states are represented collectively by 61.0 senators, while the 25% of Americans who live in the largest states are represented by just 5.3 Senators[6] (see table). That leaves 33.7 Senators for the 50% of Americans who live in “medium-sized” states.
Chris Ricchetti Table 1
There is, of course, also a Senatorial representation gap between the “Two Americas.” Solid-Red America (33.85% of US population) controls forty-six Senate seats, while Solid-Blue America (43.19% of US population) controls only forty. Purple America (22.96% of US population) is represented by the remaining fourteen Senators.
We are a long way from the democratic ideal of “one person, one vote.”
The unequal distribution of Senatorial representation is hugely consequential.
The Senate has the power to confirm, to reject, or to delay indefinitely the seating of every judge across the entire Federal judicial system—the entire Third Branch of the Federal government—including District Courts, Circuit Courts, Appellate Courts, and the Supreme Court.
The Senate has the power to confirm, to reject, or to delay indefinitely the filling of all fifteen Cabinet positions, all ambassadors to foreign nations, all directors of regulatory and some non-regulatory Federal agencies, members of the Federal Reserve’s Board of Governors, and others—nearly twelve hundred positions appointed by the President.
When the Senate is controlled by the party opposing the President, Senators can (and do) wreak havoc on the Executive Branch, maintain vacancies in important positions for years, and greatly impede the President’s effectiveness. Even when the opposing party is in the minority, there is a lot that Senators can do to thwart the President’s efforts to govern.
The Senate has the power to remove impeached government officials from office—or to turn a blind eye to high crimes and treason—as it did twice for former President Trump. That is certainly a consequential power.
Perhaps most importantly, nostalgic devotion to the Cloture Rule (the “Filibuster”)[7] in combination with the wide disparity in Senatorial representation, makes it far too easy for Senators, acting on behalf of narrow, minority interests, to block the passage of urgently needed legislation that is supported by a supermajority of Americans. It is maddeningly difficult for even the most well-intentioned lawmakers to get an up-or-down vote on many bills that the People want enacted.
As years of orchestrated gridlock and inaction roll by, the disconnect between the Will of the People and the Laws that govern them grows more pronounced. The existence of this growing disconnect is conclusive evidence that representative democracy in the United States is floundering.
Only as one begins to appreciate the magnitude of the electoral and Senatorial representation gaps do the otherwise bewildering phenomena of American politics begin to make sense.
Add to all of this, the gerrymandering of Congressional districts, laws aimed at disenfranchising minority voters, unlimited “soft” money, American lobbyists advocating for dictators and other corrupt foreign interests, electioneering by foreign actors, corporations as people, and money as speech.
Is it any wonder that the Will of the People goes unheeded?
Where Congress Fails to Act, SCOTUS is Happy to Oblige
Congress’ abdication of its responsibility to legislate the People’s Will means that six (unelected) Supreme Court Justices will now settle all the important issues that the Congress has failed to address. As a direct consequence of Congress’ failure, six theocratic reactionaries—who see the world very differently than most Americans—are now poised to radically re-shape the contours of American life in all kinds of ways that a supermajority of Americans do not support. Now we must contend with the Tyranny of the Minority.
But don’t blame the Justices. It is solely because of Congress’ fifty-year failure to codify the right to abortion that the issue came before the Supreme Court in the first place.
If you don’t see the Constitution as a living, breathing document, then Justice Alito’s originalist legal reasoning is quite sound. He is right. There is no explicit right to abortion granted under the Constitution, nor is there any right to abortion deeply rooted in our history and tradition. To the contrary, as Justice Alito rightly points out, abortion at any stage of pregnancy was illegal in three-fourths of the States on the day that Roe was decided. Justice Alito is also quite correct in his assessment of the reasoning provided in Roe. It is weak and, in places, not even factually correct.
But what of stare decisis—and, with regard to Roe and Casey, deference to precedent-on-precedent? It is hard to disagree with Justice Alito’s assertion that bad precedents ought to be overturned—“bad” according to whom, though?
Bruen (most especially) and Dobbs illustrate the absurdity of Originalism. Originalists seem to be possessed of the quasi-religious belief that anything short of total fidelity to the language and world view of the Eighteenth Century will take us down a slippery slope of relativism and lead to the complete breakdown of the Constitution as an institution. And so, as we move further and further from the language and world view of the Eighteenth Century, originalists like Justice Alito insist that we remain forever anchored in the inerrant wisdom and foresight of the Framers.
Is not the very idea that every aspect of modern life should be evaluated from the two-hundred-and-thirty-five-year-old perspective of the Framers absurd on its face?!
Must we continue to pretend that the Framers had any meaningful frame of reference for the advances in medicine that would come? Or the immense lethality that can now be carried over one’s shoulder into schools, churches, movie theaters, night clubs, and grocery stores? Or the establishment of a national standing army (most of the Framers were adamant that this country should never have one) on the scale of the modern US Military? Or the awesome power of cable “news” and the internet to bring out the worst in us? Or the catastrophic danger of global climate change that now threatens virtually all advanced life on this planet? Or the many ways in which American demographics and values would change and evolve? Or the vast power and influence of global corporations (British East India Company notwithstanding)? Or the unconscionable economic inequality that too many years of under-regulated capitalism would bring? Or the emergence of offshore corporate and personal tax havens? Or cryptocurrencies? Or the profound impact of American politics on the entire world? Or the dependence of democracy throughout the world on the military might of the United States? Or the possibility of mutually assured nuclear annihilation?
Each of these developments calls us—carefully, thoughtfully, in good faith, and with fear and trembling—to find better ways to honor all of the Spirit and most of the Letter of the Constitution, as we seek to apply its wisdom and authority to the realities of modern life.
I am certain that Thomas Jefferson would agree. As I have written previously, Jefferson was, by the standards of today’s conservatives, a radical, extremist anti-originalist, who intended a living, breathing, evolving Constitution.
It is bad enough that the Congress cannot move the country forward by passing laws that reflect the Will of the People. Now we have an ensemble of Christofascists ready, willing, and determined to move American Law backwards—even further away from what most Americans want!
In a purportedly democratic society what incentive is there for citizens to comply with a system of laws that most of them do not support?
Democracy derives from and depends upon the consent of the governed—remember?
The six conservative Justices do not have the sound judgment or the common sense to see that ruling against the will of the supermajority on so many aspects of American life will inevitably result in serious erosion of the Rule of Law.
The Justices should not take it for granted that law enforcement will have the will to enforce every change in the law that results from the rulings they make. Cops and prosecutors at all levels—Federal, state, and local—are going to decide for themselves which laws they enforce and prosecute within their jurisdictions, and which laws they ignore.
Individual citizens will do the same, deciding for themselves which laws to follow and which to ignore, based upon their own values and beliefs, greatly undermining respect for Law—not just the “controversial” laws, but all laws.
Worst of all, the ideological divide in this country is now going to become institutionalized, as the various state and municipal legislatures make their own “red laws” and “blue laws” without regard for any ruling of the Supreme Court with which they disagree—resulting in a patchwork of conflicting, yet overlapping legal regimes based on radically different ideologies.
It will be a jurisdictional nightmare, replete with divided loyalties, corruption and injustice, law enforcement personnel gone rogue, and spotty accountability. In some cases, Due Process of Law will become all but impossible to ensure.
In Chicago, a state’s attorney will decide to make an example of some red-state visitors in possession of assault rifles—regardless of any applicable ruling from SCOTUS. This will bring thousands of AR-15-toting “patriots” to Chicago in protest. How’s that going to end?
At some point, in flagrant disregard for a dozen laws, a prosecutor and a judge in Texas will orchestrate the literal kidnapping of California citizens who in some way facilitate abortions for Texas citizens, convict and incarcerate them in Texas, and the Governor will refuse to let them go. Imagine the uproar.
We already know that this Court will uphold any and every state law that allows states to “rig” their elections. Eventually—probably sooner, rather than later—some obnoxiously un-democratic law in a swing state will decide a Presidential election, and all hell will break loose.
The rulings handed down this term concerning abortion, school prayer, the reach of Federal regulators, the further expansion of gun rights (just days after the enactment of some modest, widely supported gun restrictions), and the use of public funds to pay for religious education are only the beginning of the broad rollback of 100+ years of American jurisprudential evolution that the six ultra-conservative Justices are hell-bent on completing.
Together with their Congressional enablers, Justices Thomas, Alito, Gorsuch, Kavanaugh, Coney Barrett and Roberts will forever be remembered for having cracked the foundation of the Rule of Law and ushered in the (New) Era of American Lawlessness.
Five years from now, when “Laws Were Made to be Broken” will have become the mantra of the American people, you will know who to thank.
Oh, and if you prefer airplanes that have had regular maintenance, ribeye that is free of Mad Cow Disease, and water uncontaminated by mercury and E. coli—fuggetaboutit!!! To make those assurances, we’d have to infringe corporate “liberty.” And that is something we simply cannot allow in the Land of the Free.
From here on out, it’s every patriot for herself.
End Notes
The Framers would have characterized the Electoral College as republican, rather than oligarchic—simply an additional layer of intermediate representation in a representative democracy. That view, it would seem, requires inordinate faith in the integrity of the state legislators who elect the Electors. Perhaps their scheme does bear a passing resemblance to the manner in which some modern European parliaments elect their heads of government, although under the US Constitution, Electors must be private citizens who do not hold any public office. ↑
“Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress…”(Constitution of the United States of America, Article II, Section 1) ↑
Today, as a way of rewarding key operatives who help candidates win state elections, the winning political party in each state appoints “Electors” to formally cast the electoral votes it has won—an entirely honorary and symbolic role. ↑
…although still mathematically possible under certain very specific, and very improbable, circumstances. ↑
In 1790, there were 19,698 people living in Delaware for each electoral vote allocated to the state, vs. 35,600 residents of Virginia for each of its electoral votes. ↑
In 1790, the quartile gap was 8.3 senators to 3.0 senators (out of 30 senators in total). ↑
The Cloture Rule has the effect of raising the number of Senators needed to pass most legislation from a simple majority (51) to 60. Without the consent of 60 senators, most matters can be filibustered and never even brought up for a vote. ↑
Some will react to the title of this essay by asking, “When was the United States ever not lawless?” Their point is well-taken. There is no doubt that, in many respects, our courts and systems of justice are exemplary. In countless cases, they yield outcomes that are fair, even-handed, and just. And, in far too many cases, the legal process yields outcomes that are extremely unjust. It’s both/and, not either/or. Therefore, with gratitude for the lawfulness and justice that does exist in our system, it is fair to ask: When ever has there not been selective prosecution? When ever have “white” people (in aggregate) and people of color (in aggregate) not had entirely different experiences with law enforcement and the criminal justice system? When ever have our civil courts not been a sanctioned forum for the expression of our most primal instincts to inflict maximum pain on our perceived “enemies”—even when we know that our revenge is far more severe than and totally out of proportion to the injury we have suffered? When ever has our legal system not been tainted by corruption? When ever has there been equal justice under law? The parentheses around the word “New” are intended as an acknowledgment of those realities. And yet, what is unfolding now is “next-level” lawlessness. ↑
I set out on this ground, which I suppose to be self evident, that the earth belongs in usufruct to the living; that the dead have neither powers nor rights over it. The portion occupied by any individual ceases to be his when himself ceases to be, and reverts to the society.
Thomas Jefferson
Jefferson penned this declaration in Paris in a letter to James Madison on September 6, 1789, in which he examines the question of whether one generation has the right to bind another.
He goes on to say that the society may form rules for the disposition of land at death—to spouse, to children, to legatees, to creditors, etc. But there is no natural (i.e., no moral) right to a decedent’s property—not creditors, not even family have any moral claim to it. A legal successor’s interest, if any, is derived solely from the laws of the society of which they are members. It is a “municipal” (i.e., socially constructed) interest only.
Following a lengthy application of this principle to management of the public debt, Jefferson continues…
On similar ground it may be proved that no society can make a perpetual constitution, or even a perpetual law. The earth belongs always to the living generation. They may manage it then, and what proceeds from it, as they please, during their usufruct.
In fact, Jefferson argues that laws should “sunset” automatically, so that inaction on the part of government would not perpetuate the status quo by default: “…a law of limited duration,” he says, “is much more manageable than one which needs a repeal.”
Thomas Jefferson never publicly advocated for an actual sunsetting constitution. Presumably, he regarded the amenability of the U.S. Constitution to be a more workable actualization of his usufruct philosophy. But mechanics of revision aside, there is little doubt that Jefferson was, by today’s standards, a radical, extremist anti-originalist, who intended a living, breathing, evolving constitution.
Photo by Jin S. Lee Director of Photography 9/11 Memorial & Museum
By Chris Ricchetti | 11 September 2021
America has been attacked, and it has been changed. This is the first great test of the new century for this nation, for its new president. It’s also a great test for us all—wherever we live, whatever our age, whatever our beliefs.
These were the words of NBC Nightly News anchor, Tom Brokaw, on the evening of September 11, 2001. He could not have known how portentous his words would prove to be.
The months between 9/11 and the end of 2001 were magical. For a fleeting moment, we were unified by the shared sadness of a common tragedy. People across the country were warmer and kinder, more patient, and more respectful. We were less competitive, noticeably less selfish, and more willing to help each other. For a few short months, the small irritations of daily living did not set us off. We simply let them go. Everyone, it seemed, was a little more human—more accepting of our own humanity, and more tolerant of the humanity of others. It was the kind of awakening that only grief can inspire.
As a country, we were unified. And the free world was with us. Only weeks after the Supreme Court had summarily delivered the 2000 election to George W. Bush, even I, for a moment, was willing to set aside the bitterness of electoral defeat and to rally around the President. Scores of Democrats joined with their Republican colleagues in calling for solidarity.
By October, we were in Afghanistan, where the US-led military coalition swiftly dealt a crippling blow to those who had attacked us (al-Qaeda) and toppled the de facto government of Afghanistan that had given them aid (Taliban). The Taliban fled to Pakistan, where they would regain the confidence to fight us again, while the remaining al-Qaeda scattered. We pursued them wherever they congregated, in many other places around the globe.
That wasn’t good enough for the “neo-cons” who postulated that we could re-make Afghanistan in the image of New Jersey. And we naively set out to do just that. It’s a mistake we repeatedly make—believing that it is within our power to control the political aspirations of entire populations.
Then Dick Cheney seized upon the opportunity to realize a whole portfolio of his own, personal ambitions, at the expense of military families and American taxpayers—not to mention hundreds of thousands of Iraqi casualties, and the de-stabilization of the Middle East that has been catastrophic for the entire world. Knowing that Saddam Hussein had ordered the attempt to kill Bush’s father in 1993, it must have been easy for Cheney to sell the invasion of Iraq to the President. Likely, war in Iraq was already on Bush’s agenda, as we know it was on Cheney’s, well before 9/11 provided them a pretext.
The Bush Administration, aided by the CIA, undertook an aggressive campaign to manufacture public support for another war. To achieve this, they deployed an arsenal of bald-faced lies: that Iraq played a role in the 9/11 attacks, that Iraq had a robust chemical and biological weapons program, including large stockpiles of weapons of mass destruction, and that Iraq had procured uranium from Niger and was on the brink of becoming a nuclear power—a rationale for war that the honest-by-nature General Colin Powell had trouble delivering to the UN Security Council with a straight face.
In October 2002, the Congress authorized[1] the President to use military force, if necessary, to compel Iraq’s compliance with its obligations under the cease-fire agreement of 1991 and numerous subsequent UN Security Council resolutions. Bush had “pinky promised” to pursue every possible diplomatic effort first, and to use our military might only as a last resort. Within five months, the full spectrum of diplomatic possibilities had apparently been exhausted, because Bush-Cheney ordered the invasion of Iraq. How dare they destroy so many lives under false pretenses.
In the ten-year period that followed, Halliburton stock performed three times better than the S&P 500.
It took less than a month to oust the Ba’athist regime of Saddam Hussein and to set up a provisional government. But we stuck around for another decade, certain that we could inspire Iraq’s three belligerent ethno-religious groups to set aside ancient hatreds and come together to form their own liberal democracy. Because we are that exceptional. Heck, if Donald Rumsfeld was to be believed, we could even do it on a budget!
Down the rabbit hole we went, in pursuit of a staggeringly expensive conflict[2] that made us less safe, more isolated, and less free.
Bush did not have it in him to meet the challenge of his era—to channel the fleeting spirit of unity, tolerance, and compassion that pervaded after 9/11 toward any positive ends. He squandered the goodwill and good faith that arose from our collective suffering in that magic moment. And we let him. We were all participants in the Grand Distractions that allowed that spirit of brother-and-sisterhood to go back into hibernation.
Since January 2020, we Americans have been dealing with a new collective sadness. COVID-19 has upended our way of life, killed hundreds of thousands of us, and scarred millions more with permanent health problems. This time, no magic moment of unity has arisen from our grief. This time, a global tragedy deepened our national divisions and hastened the unraveling of American society that was already under way. There are many reasons for it and plenty of blame to go around, but what’s different this time is that the nation is in a very different emotional state than we were on 9/11.
The chaos, the over-the-top intensity, and the utter irrationality of our public discourse, the literal insanity of it, our extreme villainization and dehumanization of each other, our intractable stubbornness—all are clear signs that we are acting out of our most primitive emotions. Individually and as a society, we have regressed to the bottom of our brain stems—to the amygdala, where we marinate continuously in fear and rage. We are no longer thinking, and our emotional repertoire is constrained. Hence the emergence of “alternative facts.”
It is well established in the field of neuropsychology that humans are incapable of thinking clearly or cogently in this hyper-aroused state. Nor can we feel the distinctively human emotions of empathy and compassion. In survival mode, the ventromedial prefrontal cortex, the part of the brain that is believed to modulate empathy, defers to the amygdala—essentially going “offline” until the perceived existential threat has passed. Under the constant influence of social media algorithms and other opportunistic media, many of us now spend most of our time “on edge” in basic survival mode. Almost all of us spend far too much time there.
The “Two Americas” hold vastly different views of what America means and what it means to be American. We cherish our respective conceptions of America with the same mix of reverence, tenderness, devotion, and love that we bestow upon our children, our partners, and members of our families. We may articulate “reasons” for loving the people that we love. We may think deeply about how to put our love into practice. We may make cognitive commitments that sustain our cherished connections as emotions inevitably wax and wane. But at their root, these attachments are purely emotional—as is our love for our country.
We are evolutionarily and biologically wired to respond aggressively to anyone we perceive as threatening to someone we cherish. This extends to whatever subgroup of our fellow citizens we perceive to be enemies of the America we love. We are stuck in attack mode, and we are getting stuck-er every day.
The situation does seem hopeless. It is certainly not sustainable. It would be entirely reasonable to conclude that Vladimir Putin and Xi Jinping have won Round 2 of the Cold War by a knockout.
On the other hand, given the primal impulses at work and the media forces keeping the combatants on each side marching in unison, one of the more astonishing features of the era is that we have not already erupted into all out civil war. Maybe we are a ticking time bomb. Maybe we are not. Time will tell, as time always does.
In the meantime, as Sting so eloquently puts it, “Men go crazy in congregations. They only get better one by one.” Lasting societal progress begins at the individual level. Our hope for salvation lies in improving both our collective capacity for critical thinking and our collective emotional intelligence—one individual at a time.
Reason alone cannot save us. It never has. We have been thinking without drawing upon the powerful perceptions of our emotional brains for most of the time we have existed on this planet. If reason alone could lead us to the Truth, the smartest among us would already have agreed on everything. Disagreements between equally “smart” people generally have their basis in unconscious emotions that filter out certain data, assign significance to other data, and shape the workings of the rational mind. If we were all processing the same information in the same way (i.e., via “pure” thought), we would all come to the same conclusions.
The challenge we face as a nation is fundamentally emotional. There will be no thinking our way out of this. We can try to engage in rational debate. We can pretend that articulating our “reasons” will persuade others to support our positions. But a good-faith exchange of views is not possible when “people like YOU are destroying MY America!” Compromise and working through areas of disagreement are obviously out of the question.
This is why our social media rants never change any minds, and why there is no longer any actual debate in the purported “greatest deliberative body in the world,” the United States Senate.
In the face of a fundamentally emotional problem, greater emotional awareness, maturity, and sophistication are the way through. There is no getting around the fact that a critical number of us must be willing—and make the effort—to learn how better to navigate the landscape of our emotions for there to be any meaningful change on a societal level.
Sing along with me now… “Men go crazy in congregations; they only get better one by one. One by one.”
Endnotes
On October 10, 2002, the Authorization for Use of Military Force Against Iraq Resolution of 2002 passed the House by a vote of 296-133. It passed the Senate by a vote of 77-23, the following day. ↑
Since 9/11, annual “defense” spending has more than doubled. With minimal oversight and much of it unaccounted for, we’ve spent nearly $5 trillion prosecuting the War on Terrorism. All of it—yes, ALL of it—was borrowed money. We owe $2 trillion more in military pension benefits. This gargantuan waste has been a windfall for defense contractors who collect nearly half of the Pentagon’s budget, year after year. Throughout this period, there have been more contractor employees than military personnel on the ground. In recent years, there have been twice as many. Over the past twenty years, defense stocks, including LMT, BA, GD, RTX, and NOL, have outperformed the S&P 500 by about 60%. ↑
The urgent crisis of misinformation demands a comprehensive, all-of-society response. The ideas examined here could lead to significant improvements. But many more perspectives and resources, along with as much national soul-searching and determination as we can muster are needed now. Our deep divisions are being hard wired into our brains. And we know that the road we are on now ends at “checkmate humanity.”
This discussion builds upon a previous article that examined the enactment, consequences since enactment, and pending proposals for amendment or repeal of Section 230 of Title 47 of the United States Code, a 1996 statute that provides internet companies with broad immunity from civil liability arising from content that users post to their platforms.
We live in a world where sophisticated algorithms process gargantuan amounts of data to drive an unending stream of custom-curated content into the mind of each individual technology user. This hyper-automated bias confirmation complex plays upon the neural plasticity of the human brain, continuously reinforcing our tribal beliefs. The colossal rift between the “Two Americas” is being hardwired into our brains at warp speed.
As Tristan Harris, co-founder of the Center for Humane Technology, has observed, futurists have long anticipated with trepidation some distant point in time when technology would become so advanced that it would overwhelm human strength (i.e., perform all tasks—from labor to critical thinking—better than humans), effectively rendering human beings economically “obsolete.” What no one saw coming was the earlier point—according to Harris, we are already there—when technology would have the capacity to overwhelm human weakness.
User “engagement” drives revenue for social media platforms. The more time users spend scrolling their feeds and the more interactions (e.g., likes, shares, comments, etc.) they transact, the more data platforms can collect and the more paid advertising they can display. That is how the business model works. Consequently, content delivery on social media is optimized for user engagement—for “hooking” users and holding their attention, without regard for any of the detrimental effects on them or on the societies in which they live. Playing upon our fear, outrage, and other primordial instincts powerfully and reliably sustains user engagement (that and cat videos).
Evan Williams, a co-founder of both Twitter and Blogger and currently the CEO of Medium, explains that content-curation algorithms generally do not distinguish between looking at content and preferring it. He observes that “everyone” feels compelled to look at car crashes as they pass. He goes on to explain, “The internet interprets behavior like this to mean everyone is asking for car crashes, so it tries to supply them.” This leads to an all-car-crashes-all-the-time environment and incentivizes many users and content creators to post content that is ever more extreme. Tristan Harris calls this phenomenon the “race to the bottom of the brain stem.”
Through perpetual arousal of our most destructive instincts (i.e., fear and anger) the algorithmic technology deployed on social media platforms is overwhelming human weakness on a massive scale. Our country is being ripped apart by the polarizing effects of tech-enabled echo chambers. This is an imminent and ongoing threat to national security, indeed to our continued existence as a democratic republic. The United States of America as we know it cannot and will not survive if we allow this to continue.
What actions should Americans and their government take to save ourselves from this dire situation?
Not surprisingly, there is no consensus around what specific problem(s) need solving. The current broad-based outcry against “Big Tech” is a confusing cacophony of at least three categories of frustrations: (1) complaints about lies, misinformation, and conspiracy theories, (2) complaints about incitement to political violence and other illegal activity, (3) complaints about political discrimination, censorship, and the Freedom of Speech.
Conservatives complain that Big Tech censors their voices (i.e., over-moderates conservative content). To punish this perceived injustice, they say they want social media companies to be legally responsible[1] for anything and everything that billions of users post on their platforms—which, obviously, would incentivize a much greater degree of content moderation (censorship), not less.
One must assume that conservative lawmakers well know that removing Section 230 immunity from social media platforms would not fix their censorship complaint and would, in fact, make the problem worse. They muddy the waters further by ranting about “violations” of their First Amendment “rights”—an argument that rests upon a (presumably intentional) distortion of the right to Freedom of Speech. They know that, to the extent the First Amendment can properly be applied to content moderation at all, it protects platforms, not users. They know that the whole of Corporate America relies on immunity from liability for third-party content.
Confronting the very real existential crisis that we face is not made easier when politicians and pundits knowingly cast their complaints within an improper legal framework and pretend to advocate for solutions that are both legally and politically untenable.
Liberals, for their part, are concerned mostly with misinformation, violence, and other criminal activity. They see in the proliferation of untruth a dangerous, cultural revolt against science, expertise, and empirical facts, and they argue that without a shared set of basic facts, there can be no functioning democracy. While there has always been a certain amount of misinformation in circulation, technology has fundamentally changed the media landscape. Propaganda may be as old as time, but the reach and repetitiveness of today’s tech-enabled propaganda machines are unprecedented in human history.
The use of technology to bring communities of terrorists together, to link predators with potential victims, and to facilitate every kind of crime and corruption is also novel. Public officials across the political spectrum accuse social media and other internet services of willful blindness and negligence in under-moderating unconscionable activity on their platforms.
One must assume that left-leaning lawmakers also realize that the full repeal of Section 230 would not be a sufficient remedy for their complaints and would precipitate a multitude of unintended consequences.
Neither party has yet proposed a targeted, workable strategy to correct Big Tech’s complicity in the misinformation crisis. Both parties seem to agree that social media platforms should not function as arbiters of truth. Platforms have never wanted this responsibility anyway, though some have recently indicated their willingness to take it on, provided that the Congress provides them with “cover” in the form of clear and detailed guidance.
With respect to Category 3—political discrimination, censorship, and the Freedom of Speech—this set of complaints is the source of much of confusion. Under current law, social media platforms are private spaces, and there is no “right” to the Freedom of Speech in any private space. A compelling case could be made that the largest social media platforms have become de facto public spaces where discrimination should be prohibited by law, as it is in other public accommodations. However, not all forms of discrimination are illegal, even in public spaces. Fixing the perceived problem of political discrimination on the part of social media platforms would also require that political views be added to the list of Federally protected traits.[2] The types of discrimination that are currently illegal under Federal law are limited to discrimination on the basis of race, color, religion, sex, or national origin.[3]
Adding political views to the list of Federally protected traits and expanding the statutory definition of public accommodations to include the largest social media platforms would be constructive improvements from a fairness perspective and would focus moderation efforts on content that is demonstrably false or misleading and content that facilitates (potential or actual) criminal activity—Categories 1 and 2. ✔ Done.
With respect to Category 2—incitement to political violence and other illegal activity—this set of complaints could be addressed, in part, by enacting exceptions to Section 230 immunity for any of the following: (i) willful blindness to criminality, (ii) negligence in moderating criminality, and (iii) intentional criminality.[4] Of course, existing criminal statues and case law already prohibit criminal activity online. However, overly broad interpretations of Section 230 immunity frequently impede the robust prosecution of criminal offenses.[5] This clear injustice could be fixed simply by adding clarifying language to Section 230(c)(1) to the effect that the broad immunity granted thereunder shall not impede enforcement of any criminal law or prohibit Federal and state governments or injured parties from bringing civil actions in connection with underlying criminal conduct.
Past efforts to correct the Category 2 problem have been piecemeal, focusing on specific types of heinous criminality, such as sex trafficking or the sexual exploitation of children. Making it clear that Section 230 provides no protection whatsoever for any criminal conduct should eliminate the need to specify every conceivable type of criminality in the amended language of the statue.
In addition to clarifying Section 230 as it relates to criminal conduct (including negligence in moderating and willful blindness to criminal conduct), new legislation is needed to establish mandatory minimum standards and practices for moderating criminality, reporting possible criminal activity, cooperating with law enforcement, responding to court orders in a timely manner, etc. Content distributors that demonstrate faithful compliance should be entitled to “safe harbor” protection from civil liability in connection with what should then be low incidences of crime on their platforms, except when mens rea can be established. ✔ Done.
Category 1—lies, misinformation, and conspiracy theories—is the most urgent of the three, as it constitutes a clear and present existential threat to democracy. Addressing the problem of misinformation will be extraordinarily difficult, given that the Two Americas live in vastly different and largely incompatible “realities.” But if we are to believe Tristan Harris’ prophetic warning that technology has already pushed us dangerously close to the point he calls “checkmate humanity,” then we have no choice but to develop systems to curtail the spread of misinformation that will be both constitutional and widely accepted across the Two Americas—even at the cost of some of our liberty,[6] and even at the cost of an internet that may become somewhat less “fun” and less convenient.
As a starting point, multiple interdisciplinary working groups should be convened to study the crisis of misinformation[7] and to develop systems, procedures, technologies, educational programs, legislation, and other solutions to combat it. It is essential that the solutions ultimately implemented should not be perceived as emanating from government. However, a presidential and/or congressional commission could lead by establishing a timeline for brainstorming, experimentation, and evaluation of potential solutions, as well as target dates for introducing legislation based on the most promising evidence-based ideas.[8]
Working groups could be convened by Federal and state governments, nonprofit organizations, science and academia, Big Tech, smaller tech, grassroots activists, and other stakeholders. Presumably, many of the solutions arising from this process would not require legislative action and could be implemented by the private and nonprofit sectors as they are developed.[9]
Although “truth arbitration” by itself will not be sufficient to bridge the canyon separating the Two Americas, any honest examination of the misinformation crisis should lead to the conclusion that some degree of empirical fact checking is urgently needed.
In our pluralistic, democratic society, the range of content subjected to mandatory fact checking would have to be narrow and limited to that which can be transparently and empirically verified, then confirmed from a multitude of diverse perspectives. As philosophers have observed for thousands of years, objectivity is elusive. On the other hand, facts are not relative.
As a society, we must reach a consensus about demarcation of the line that separates alternative points of view from “alternative facts.” And we must agree that empirical verification of basic facts is essential for democracy, even when, inevitably, not everyone may agree with every determination made by fact checking institutions.[10]
As discussed at length in a previous article, it is fashionable now for lawmakers to threaten Big Tech with the full repeal of Section 230 (or major modifications to it), as if using this blunt instrument would somehow solve all three categories of complaints against social media platforms once and for all. For all the reasons considered there, this is a terrible idea that would have far reaching, undesirable consequences.
General protection from civil liability arising from third-party content is a fundamental necessity for doing business on the internet, not a special privilege. Section 230 immunity must be the default for internet platforms that host user-generated content[11]—unless they knowingly facilitate or are negligent in moderating clear criminality. Changes to the law and new regulations should target specific outcomes and be tied to a comprehensive strategy for dealing with the misinformation crisis and the Two-Americas divide.
Foremost in every effort to fight the misinformation crisis should be the consideration of what to do about Big Tech’s reckless use of algorithms to exploit fear and outrage, for the ultimate purpose of monetizing users. This is an urgent public health[12] and national security threat. The use of algorithmic technology to amplify or to limit the reach of user-generated and third-party content should be categorically prohibited as a strict-liability tort and should disqualify offenders from Section 230 immunity across all social media platforms they own or operate. Severe mandatory civil penalties and regulatory sanctions should also be imposed. Clearly, this would be a new constraint on First Amendment rights on which the Supreme Court would ultimately have to rule. In the face of imploding democracy, this constraint on liberty is not only justified but critical.
The use of algorithms for most purposes should be acceptable. Deploying user data and algorithms for the purpose of serving micro-targeted advertising content is a defensible practice (that should be monitored for potential regulation as the technology continues to evolve).[13] The utilization of algorithms as moderation tools (e.g., auto-removal of content containing the “N” word) is another constructive use. And there are, of course, many others.
As noted above, the First Amendment does not confer upon users any “right” to the Freedom of Speech on private social media platforms. Nonetheless, the freedom to expose oneself to a broad range of ideas is one of the key benefits—for individuals and for democratic society—of our First Amendment rights. (Of course, with or without technology, democracy depends on citizens having the will and making the effort to exercise this freedom.) The abuse of content-curation algorithms is antithetical to this core American value in that the technology drives a customized set of preferred ideas into each user’s brain without relent, sabotaging critical thought and making us all less free. All individual rights are subject to limits that serve the public good. The greater good that will result from prohibiting destructive uses of algorithms far outweighs the cost to tech companies of limiting their right to deploy them.
Instead of using algorithms to turn up the volume in the echo chamber, another partial solution to the misinformation crisis might be to require platforms to deploy algorithms that would present users with content that represents a different point of view on the content they are consuming.
For example, immediately following the 2020 presidential election, several analyses[14] that purported to demonstrate the “statistical impossibility” of a Biden win were widely shared and swallowed whole by millions. Rebuttal analyses quickly arose that were circulated in different echo chambers. It would have been good for the citizens of both Americas to have been presented with convenient links to opposing viewpoints as they were consuming content that reflected their default perspectives.
Such “alternative viewpoint algorithms” might also have helped to lessen the intensity of the debate over mask wearing. There is a legitimate, ongoing inquiry in academic medicine into the efficacy of surgical masks in the operating theatre. The science is not as conclusive as their nearly universal deployment in surgical facilities might suggest. Nonetheless, most guardians of public health, in full awareness of the lingering uncertainty about mask efficacy in the surgical context, have rendered their professional judgment in favor of public mask wearing as a means of reducing the rate of transmission of the virus that causes COVID-19. And research during the pandemic seems to indicate that masks do provide imperfect but substantial protection. Given that most of us are not scientists, our consumption of scientific information calls for a lot more humility, on all sides.
It is dead wrong (pun intended) to assert that masks “don’t work.”[15] It is also not correct, though far less dangerous, to assert that the scientific understanding of mask efficacy is complete and conclusive. Both Americas would have benefited from exposure to a fuller picture. This might have helped some accept the judgment of experts and ratify their participation in the social contract of mask wearing, despite their personal reservations.
The urgent crisis of misinformation demands a comprehensive, all-of-society response. The ideas examined here could lead to significant improvements. But many more perspectives and resources, along with as much national soul-searching and determination as we can muster are needed now. Our deep divisions are being hard wired into our brains. And we know that the road we are on now ends at “checkmate humanity.”
i.e., by removing the immunity from civil liability provided under Section 230. ↑
Some countries already prohibit discrimination on the basis of politics. ↑
Legislation proposed by former Attorney General William Barr in September 2020 attempts to “fix” the perceived problem of political discrimination by establishing good faith standards applicable to content moderation. Barr would require platforms to disclose their content moderation policies in detail, apply them consistently, and avoid any appearance of political discrimination. Otherwise, they could be sued by users, whose claims of harm would be legally tenuous, likely rendering Barr’s good faith standards an exercise in futility. ↑
Several bills introduced in the 116th and 117th Congresses, as well as Barr’s proposed legislation (see footnote 3), would eliminate Section 230 immunity for platforms that knowingly facilitate criminal content or activity. ↑
While Section 230(e)(1) clearly states that the statute was intended to have no effect on criminal law, some courts misapply Section 230(c)(1) to shield guilty parties from criminal prosecution. More frequently, Section 230(c)(1) bars law enforcement and injured parties from civil actions in connection with criminal activity. ↑
Most Americans were willing to accept significant limits on their civil liberties following the tragic events of September 11, 2001, ostensibly in service of the public good. ↑
A great deal of new research into the psychology and social psychology of misinformation has been conducted since 2016, augmenting the already considerable body of knowledge. The sources and tactics of organized misinformation campaigns is another active area of research. ↑
The constitutionality of regulating platforms’ moderation practices is unclear—and effectively unknowable until such time as relevant litigation provides the Supreme Court with an opportunity to decide this. One should not assume that the publisher-distributor distinction is a strict dualism. It is conceivable the Supreme Court would decide that, for purposes of content moderation authorized under Section 230(c)(2), platforms are publishers (of a special kind, given their immunity) and, therefore, beyond the reach of government regulation; but that, for all other purposes, platforms are mere distributors, pursuant to Section 230(c)(1). Or the Court could decide that platforms are distributors for all purposes and, therefore, regulating their content moderation practices would not be a violation of their First Amendment rights. Instead, by establishing content moderation standards to be operationalized by platforms, the government would likely be infringing the First Amendment rights of platform users (i.e., the actual publishers of user generated content). ↑
An independent oversight board established by Facebook in May 2020 is already offering to advise other social media platforms regarding their content moderation practices. ↑
The Federal government might consider establishing the framework for a new type of nonprofit organization—call them “independent fact checking institutions”—with a governance structure that includes robust checks and balances designed to minimize conflicts of interest and the risk of corruption. Such entities could be required by law to be fully transparent, with every financial and operational detail made public in real time. The Federal government could incentivize the nonprofit sector to create these organizations and require social media platforms to “subscribe” to one or more of them. The fact checking entities would have the power to moderate all user-generated and third-party content published on a subscribing platform. Perhaps fact checking bodies could be crowd funded, similar to public radio and television, except with contribution limits. ↑
Section 230 protects commerce and innovation across the entire internet, not just Big Tech. According to the Internet Association, the parties that have relied on Section 230 as a legal defense include “internet service providers and website hosts, newspapers, universities, libraries, search engines, employers, bloggers, website moderators and listserv owners, marketplaces, app stores, spam protection and anti-fraud tools, domain name registrars, and social media companies.” ↑
The misuse of algorithms to maximize user “engagement” (i.e., addiction) is not unlike Big Tobacco’s use of additives to enhance addiction and mask the negative effects of cigarettes. ↑
Tristan Harris makes a compelling case that the use of personal data and algorithms to serve advertising content is similarly abusive in its power to undermine independent thought. He argues that the power dynamic between humans and algorithms is so far out-of-balance that the interaction cannot be fair. Many others agree.↑
Examples include an analysis by Charles J. Cicchetti, Ph.D. comparing Clinton’s (2016) and Biden’s (2020) results in key states, a claim that the election results violate Benford’s Law, an argument based on Biden’s loss of all but one of the traditional “bellwether counties,” etc. ↑
Anti-mask arguments based on the extremely small size of the virus relative to the distance between mask fibers are incomplete and inadequate. And there are straightforward explanations as to why the guidance from public health officials regarding mask wearing has changed over time. ↑
Our country is being torn apart by the polarizing effects of tech-enabled echo chambers… Strategic curation of the content presented to users is the very definition of what it means to be a speaker or a publisher… Both amplifying and constraining the reach of any user-generated content algorithmically should be illegal.
This article provides a straightforward and relatively “objective” review of Section 230, the circumstances that gave rise to it, the intent behind it, the intended and unintended consequences of its enactment, judicial interpretations, and the robust public debate about potential changes to the law—none of which address the most serious and urgent tech-enabled threat to democracy: the reckless misuse of algorithmic technology.
Also included—at no charge—are the author’s point of view and analysis, which can be summarized as follows:
There are three broad categories of problematic, user-generated content: (1) content that is clearly criminal, (2) content that is “objectionable” but not clearly criminal, and (3) content that is false, distorted, misleading, etc., but not clearly criminal. One (1) is the only category that government is constitutionally empowered to restrict. This does not make the other two any less destructive or absolve Americans and our government from seeking ways to lessen their detrimental effects.
General protection from civil liability for third-party content must be the default position for internet platforms that host user-generated content—unless they knowingly facilitate or are negligent in moderating clear criminality. Section 230 protects commerce and innovation across the entire internet. It does not only benefit “Big Tech.” [1]
However, the existing protections conferred under Subsection (c)(1) are too broad. Section 230 should not, as courts have frequently held that it does, protect platforms that knowingly facilitate clearly criminal content or activity, that are willfully blind, or that are negligent in moderating clear criminality. Such platforms should not be immune from liability and should be shut down.
Lawmakers should define in detail the minimum required standards and practices for moderating clear criminality, including penalties for non-compliance (i.e., something other than the loss of Section 230 protections across the offender’s entire business).
To the extent that overly broad interpretations of Section 230(c)(1) may continue to impede the government and injured parties from bringing civil actions in connection with criminal conduct, clarifying language should be added to Subsection (c)(1), without disturbing its vitally important broad civil liability protections. Obviously, the law should never be applied as a shield from culpability for any underlying criminal conduct.
Lawmakers should not attempt to regulate the moderation of content that is “objectionable” but not clearly criminal (category “2” above). The largest platforms do this reasonably well, despite innumerable (and inevitable) errors, omissions, and inconsistencies.
The tech-enabled amplification of lies, distortions, and misinformation (category “3” above) on a global scale is—by far—the most serious and destructive consequence of Big Tech’s ubiquity in American life.
The use of algorithms to auto-curate user-generated content (including shared content not authored by the sharing user) should be categorically prohibited as a strict-liability tort. Offenders should be excluded from all liability protections under Section 230(c)(1) and be deemed publishers of all third-party content posted to their platforms.
Withdrawing the liability protections granted under Section 230 is not the appropriate remedy for correcting perceived injustices related to discrimination on the basis of politics or the Freedom of Speech. Civil rights law is the proper forum in which to fight those battles, for those who are inclined to fight them.
Withdrawing the liability protections granted under Section 230 is not the appropriate remedy for correcting anticompetitive markets. Antitrust law is the proper forum in which to fight those battles, for those who are inclined to fight them.
Keeping children physically, emotionally, and morally safe and secure should always be of paramount importance in policymaking. There is no higher purpose under the social contract on which democracy is based. However, whenever social conservatives purport to do anything in the name of “protecting children,” there is cause for skepticism and scrutiny. Evangelical and Catholic leaders have a decades-long track record of appealing to the universally shared value of protecting children to justify legislation and law enforcement actions that were, in fact, intended to chill or to criminalize constitutionally protected adult speech. In retrospect, most of these efforts have failed to withstand judicial scrutiny and have been partially or fully struck down by the courts—including, in more than one instance, by the Supreme Court of the United States. Consequently, the producers of some of the most extreme and harmful content have either been punished very lightly or not punished at all. Society would be better served by the enactment of more narrowly tailored statutes that provide muscular protections for kids without advancing a broader, moralistic “hidden agenda.”
The current debate about Section 230, part of the Communications Decency Act of 1996, is taking place at a time when Americans are deeply polarized. Technology has brought to light and greatly amplified our differences to such an extent that there are now, quite literally, two “Americas”—each with its own values, priorities, “facts,” and perceptions of reality. That Big Tech companies have become “too big” and “too powerful” is among the rarest of declarative statements that both Americas deem to be “true,” albeit for different reasons.
Title V, Section 509 of the Communications Decency Act of 1996,[2] entitled “Online Family Empowerment,” amends the Communications Act of 1934 by adding Section 230 at the end of Title II.
The heading of Section 230 reads, “Protection for Private Blocking and Screening of Offensive Material.”
In short, Section 230 encourages tech companies to censor content that is “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable” and shields them from civil liability when they do. In other words, content creators—including users who post comments—may not sue tech companies for labeling or removing their content in “good faith.” (Establishing “bad faith” is neither inexpensive, nor easy.)
Most of the 1996 Act was struck down by the Supreme Court[3] subsequent to its enactment, but the part of the Act commonly referred to as “Section 230” was deemed constitutional and remains in effect.
Before examining the current debate about Section 230, let us look at some of the common legal misconceptions—among both left and right leaning Americans—that are clouding the debate.
The First Amendment to the Constitution of the United States prohibits the government from infringing upon Americans’ Right to Freedom of Speech, except when doing so serves a clear and compelling public interest. The First Amendment does not restrict citizens from taking action to limit, suppress, distort, or otherwise interfere with each other’s speech. There are many laws that do protect Americans from each other, but the First Amendment is not one of them. Social media platforms are private spaces, and no one has a constitutional “right” to freedom of speech on social media. In fact, the First Amendment protects the rights of social media platforms to moderate their private spaces without government interference. Their moderation decisions will ultimately be judged in the marketplace.
There are other important features of American civic life that many Americans have either forgotten or may never have learned. Many Millennial and Gen-Z Americans, by no fault of their own, were raised with a set of values from which they could easily and understandably infer certain inaccuracies about American law, particularly as it relates to the freedom of speech and discrimination. Consider the following examples:
Speech that is commonly referred to as “hate speech”—as immoral, destructive, and despicable as it may be—is not categorically illegal. More precisely, it is illegal only when it is direct, personal, and can be shown to be “truly threatening” or reasonably likely to incite others to immediate, illegal action, especially violence. As in all areas of the law, there are many nuances and an extensive body of case law in which the contours of these general principles have been worked out and applied to a wide variety of facts and circumstances. Consequently, the latitude to spew hatred is not as wide as it may seem. But there is a great deal of highly offensive speech, including some that many would consider to be “triggering,” that is nonetheless legal and protected under the First Amendment. While the subset of all hate speech that is prohibited by law is narrower than many Americans realize, Section 230 does enable tech companies, if they choose, to censor the complementary subset of all hate speech that is hateful but not illegal.
Discrimination—as immoral, destructive, and despicable as it may be—is also not categorically illegal. More precisely, it is illegal only in certain contexts and only when it affects a legally protected class of persons. The laws restricting discrimination are somewhat different in the areas of employment, housing, education, and public accommodations. The types of discrimination that are always illegal include discrimination on the basis of “race, color, religion, sex, or national origin.” In some parts of the country, private clubs and religious organizations are free to discriminate—even on the basis of these otherwise unlawful forms of discrimination. However, if a business owner has a personal distaste for rich people, or “latte liberals,” or people who eat meat, or doctors who perform abortions, or dog owners who don’t clean up after their dogs, or alumni of Michigan State, it is altogether legal for her to deny service for any of these reasons—provided that the reason given for the denial of service is not a “cover” for some other form of discrimination that is actually illegal. In June 2018, former White House Press Secretary, Sarah Huckabee Sanders, was ejected from the Red Hen restaurant in Lexington, Virginia because of her association with President Donald Trump. This discrimination was legal, and Ms. Sanders had no legal recourse. Likewise, social media platforms and other internet spaces are fully within their rights to deny service or to censor anyone on the basis of politics. And they are under no obligation to exercise discriminatory bias on a consistent basis.[4]
Those who have suggested (perhaps not without merit) that social media platforms of a certain size are de facto public spaces could pursue expanding the statutory meaning of “public accommodations” to include large internet platforms, and they could pursue adding “political views” to the list of protected traits[5] under the Civil Rights Act of 1964. Some countries already prohibit discrimination on the basis of politics. But Section 230 was not intended to deal with issues of discrimination and is not the proper legal tool to correct any perceived injustice related to discrimination.
Section 230 is also not about monopoly power. To the extent that the enormity, economies of scale, reach, and other market advantages of Big Tech companies may constitute nearly insurmountable barriers to entry and stifle competition, antitrust litigation is the proper legal tool to correct these anticompetitive market dynamics. Threats to withdraw Section 230 liability protections as means of “punishing” Big Tech for their success are misguided and will not change their oligarchical market positions or lessen their market dominance.
Lastly, it should be self-evident that Big Tech is wholly uninterested in functioning as arbiters of truth. We know this because they resisted public pressure to involve themselves in “truth moderation” and politics for a long time and, until recently, had made few attempts to censor even the most egregious lies and oppressive political content from despicable actors (e.g., foreign dictators). Worse yet, some smaller players have done exactly nothing upon learning that their platforms were facilitating horrific crimes. Big Tech is interested in one thing only: maximizing user engagement. Big Tech simply wants users on their social media platforms consuming content—pretty much any content—for as long as possible, every day, because that is what drives their revenue. From their perspective, robust content moderation is an enormously expensive and risky distraction from making money.
Big Tech is not in collusion with the “deep state,” or “antifa,” or George Soros, or the “squad,” or the “Illuminati,” or “a cabal of cannibalistic democrat celebrity pedophiles” to thwart democracy and establish a one-world communist government in fulfillment of Biblical prophecy.
To the extent that “shadowbanning” was ever a “thing,” the practice was an early effort by Big Tech to quietly extract themselves from the irreconcilable demands of the Two Americas. Their moral failing has been their intentional amplification of polarizing falsehoods—not their reluctant efforts to censor lies, distortions, and actual criminal content in response to a sustained public outcry and threats from lawmakers of both parties to cut them off at the knees. As with Corporate America generally, Big Tech’s obsession with maximizing shareholder value without regard for any other moral precepts defines its depravity, not “censorship.”
When Section 230 was enacted in 1996, public access to and commercial use of the internet were new, as was the graphical user interface. Section 230 was intended to address two specific—and closely related—issues of concern at the time.
First, before Section 230 was enacted, some courts held[6] that if internet companies restricted access to any third-party content, they would then become liable for all third-party content accessed via their services—to the same extent as if they had been the actual creators of the content. Few internet companies would have survived if they could have been sued for every instance of racist, sexist, discriminatory, libelous, obscene, or otherwise offensive content that users might encounter. The clear legal incentive before Section 230 was for internet companies to do no moderation at all. Many Americans wanted internet companies to take a more active role in “policing” and restricting access to offensive content. Section 230 was intended to correct the perceived problem of under-moderation.
Second, in the early years of the public internet, many Americans were concerned about the proliferation of pornography online (perhaps they were on to something) and they wanted to ensure that children would not have access to or inadvertently land on adult content. As the title of the legislation (Communications Decency Act of 1996) suggests, preventing minors from encountering adult content was the overarching and primary purpose of Section 230 and of the Act as a whole. In fact, the part of the Act that establishes Section 230 is entitled “Online Family Empowerment.” Specifically, the legislation was intended to enable internet access software companies—such as CompuServe and America Online—to deploy technologies that would empower parents to block adult websites and other content not appropriate for children, without being deemed publishers of and without assuming potential liability for all the content on all the websites across the entire internet that users accessed via their services.
The technology environment in 1996 was vastly different from what it is today. Users accessed the internet via the existing land-based telephone lines. There were no internet service providers (ISPs) apart from the land-based phone carriers.[7] There were no social media platforms. Online communities—called “bulletin boards”—were much smaller and tended to be populated by a small subculture of “brainiacs” and “geeks.” Most Americans were not even aware that they existed. There was almost no (non-adult) entertainment online. There was no streaming video—neither prerecorded nor live (content had to be downloaded, then viewed or played locally). There were no lifestyle or affinity websites, limited news, little commerce, and few platforms (other than the aforementioned “bulletin boards”) where users could post comments or engage in open dialogue. There were no mobile devices capable of accessing the internet or any of its content. All of this developed rapidly in the years following 1996, but none of it was known or contemplated at the time Section 230 was enacted.
Subsections (a) and (b) of Section 230 state that the internet is super cool and that it is the policy of the United States to promote its ongoing development.
The substance of the legislation is found at Subsection (c), which reads as follows:
(c) Protection for “Good Samaritan” blocking and screening of offensive material
(1) Treatment of publisher or speaker
No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.
(2) Civil liability
No provider or user of an interactive computer service shall be held liable on account of—
(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or
(B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).[9]
Subsection (d) simply states that internet companies should notify users of any parental control features available on their platforms, and Subsection (e) confirms that Section 230 is not intended to affect the interpretation or enforcement of certain existing laws.
In short, Section 230 resolved the “Moderator’s Dilemma” (see footnote 6). Subsection (c)(1) says, in effect, “There is no need to censor anything and everything that could possibly be offensive to somebody somewhere, because no one can sue you anyway (i.e., don’t over-moderate).” The intent here was to keep the internet a place for vibrant and open discussion. Subsection (c)(2) encourages moderation where it truly matters by saying, in effect, “On the other hand, we don’t want you to completely ignore the third-party content on your platform either (i.e., don’t under-moderate). These are the types of content that we’d like you to make a good-faith effort to moderate…” The intent here was to make the internet safe for kids. The language of Section 230 enables, indeed, encourages, platforms to restrict user access to objectionable content without the risk of being deemed the creators of any content created by a third party.
In response to the Supreme Court’s decision to strike down all but Section 230 of the Communications Decency Act of 1996, Congress passed, and President Clinton signed into law, a more narrowly tailored effort to modify the liability protections of Section 230 called the Child Online Protection Act (1998). This legislation was also overturned by the High Court, on the grounds that it was still too overly broad, vague, and burdensome and was likely to chill legal speech between adults.
The Digital Millennium Copyright Act (1998), without directly modifying the language of Section 230, created new requirements for internet companies to respond to infringement complaints related to copyrighted content posted on their platforms, and opened them to potential liability for third-party content if they fail to comply with the “safe-harbor” procedures for processing infringement complaints set forth in the Act.
While Section 230 explicitly states that the legislation was not intended to affect criminal law,[10] it has nonetheless been cited by courts as the basis for shielding internet companies and their responsible agents from civil actions in cases where they had been knowing enablers of, or the principal actors in, criminal activity. In response, Congress passed, and President Trump signed into law, the Allow States and Victims to Fight Online Sex Trafficking Act of 2017 (FOSTA-SESTA). The Act clarifies that Section 230 does not prohibit the enforcement of Federal or state criminal or civil law when internet companies “knowingly assist, facilitate or support sex trafficking,” thus creating the first explicit statutory exception to the liability protections afforded by Section 230.
It appears to some that forcing sex trafficking offline may have had the unintended effect of making it more difficult for law enforcement to prosecute sex trafficking crimes and may also be making sex workers less safe.[11] Others have claimed that the Act stifles innovation in that it creates an oversized risk for tech entrepreneurs who could inadvertently run afoul of the law with devastating consequences. Add these to the laundry list of concerns that should be considered when evaluating proposals for further legislative action.
In the early days of the public internet, before anyone could conceive of the advances in technology that would enable its vast commercial potential or the development of a “digital divide,” broadband (i.e., internet-access infrastructure) was treated as an “information service” for regulatory purposes. This designation limited the powers of the Federal Communications Commission (FCC) to regulate broadband.
In February 2015, in response to growing public demands to preserve the neutrality and openness that made the internet great, the Obama FCC issued the Open Internet Order, that reclassified broadband as a “telecommunications” service under Title II of the Communications Act of 1934, subjecting it to the more stringent regulatory regime applicable to “common carriers” (e.g., phone companies). Among other consequences, the FCC was then able to ban internet service providers (ISPs) from “picking internet winners and losers” via practices such as blocking, throttling, and paid prioritization. Additionally, ISPs would now have a duty to work toward universal access to more uniform internet access services at more uniform prices. Ironically, ISPs would not now need the protections of Section 230 because their status as common carriers came with its own protections from civil and criminal liability. Internet actors higher on the “stack” than ISPs, including websites, and computer and mobile applications, remained very much reliant upon Section 230 protections.
In 2018, the Trump FCC issued the Restoring Internet Freedom Order (you can’t make this stuff up) restoring ISPs to their original, lightly regulated status as “information services,” thus defeating the Obama Administration’s noble efforts to maintain net neutrality.
In May 2020, former President Trump signed an executive order purported to strip Twitter, Facebook, and Google of Section 230 liability protections. Like most of Trump’s reactive, petty, and entirely uninformed initiatives, it went nowhere. It did, however, dovetail with a more substantive examination by the Barr Justice Department of all things related to Section 230, already under way, that culminated in proposed legislation being sent to Congress by Attorney General Barr (see below).
With all this in mind, let us now turn our attention to the current debate about the content moderation practices of Big Tech and the arguments being made for amending or repealing Section 230.
We’ll start with an easy one—the Ending Support for Internet Censorship Act. In June 2020, insurrectionist and Dunning-Kruger poster boy, Senator Josh Hawley (R-MO) proposed requiring tech companies to “prove” their “political neutrality” (i.e., that their moderation practices reflect no “discernable viewpoint”) to the Federal Trade Commission every two years as a condition for Section 230 immunity. Really, Josh? Government control of private speech? Flag on the play. First Amendment violation. 6-year penalty. Next!
Senator Hawley’s proposed legislation and his messaging around it are cynical, misleading and in bad faith. As a Yale Law graduate, he well understands that his proposed “solution” to the “problem” of Big Tech “censorship” is unconstitutional on its face. Senator Hawley simply happens to be, for the moment, one of the more visible performers carrying out the standard Republican modus operandi: flagrantly lying to their own constituents, for whom they have neither respect, nor concern. Instead of leading by telling the truth about issues and proposing workable solutions, they opportunistically seize upon every grievance du jour, and milk it dry to augment their own power. None but a small handful of Republicans stand for any discernible consistent ideology beyond their own self-interest. Hawley has no regard for the freedom of speech as a shared value, and no concern for the insidious injustices of discrimination, except in this one instance where he perceives it to be affecting him. He is plenty well prepared by education and experience to lead his constituents back to reality and to come up with meaningful proposals to address their real concerns. And he knows that Section 230 is not the right tool for the job.
As previously stated, it may well be that large social media platforms should be regarded as public accommodations[12] under the law, and it may well be that discrimination on the basis of politics should be legally prohibited. However, each would represent a fundamental change to American law that would have implications far beyond the scope of Section 230. If these more foundational changes were to be enacted, cleaning up the language of Section 230 to bring it into conformity would then become little more than a ministerial function.
Concerns about “fact checking” and “truth arbitration” (i.e., moderating intentionally misleading or factually incorrect content) should be kept separate and distinct from concerns about discrimination on the basis of politics and the freedom to express dissenting opinions (see previous section). They are two different things altogether.
In the current deeply polarized environment, solving the problem of pervasive misinformation is surely the more challenging of the two. No one trusts Big Tech to do it, and everyone seems to believe that the slightest intrusion by government would take us down a steep slippery slope to authoritarianism—even though most Americans were willing to accept significant limits on their civil rights following the tragic events of September 11, 2001, ostensibly in service of the public good.
Beyond the excruciating question as to who should be charged with truth arbitration, lies the equally daunting challenging of defining the line between alternative points of view and “alternative facts.”
The difficulty of these challenges should not preclude trying to solve them—at least to some extent that would make a meaningful difference. In a pluralistic, democratic society, the scope of publicly accepted truth arbitration would have to be narrow and limited to that which can be transparently and empirically verified, then confirmed from a multitude of diverse perspectives. As philosophers have observed for thousands of years, objectivity is elusive. But facts are not relative. Our deeply divided house will not stand unless we can achieve some degree of reconciliation between the binary “realities” of the Two Americas.
Many participants on all sides of the current debate do not seem to realize that all of this is beyond the scope of anything that Section 230 was ever intended to address. A Section 230 makeover will not deliver us from the existential crisis that we face.
Both President Biden and former President Trump have advocated for the complete repeal of Section 230. Speaker Pelosi has called it a “gift” that “could be removed.” This is a terrible, “surgery-with-a-chainsaw” remedy that would have numerous far-reaching consequences, both good and bad.
While Section 230 has unquestioningly been misused to shield some very “bad hombres” from accountability for serious and harmful crimes (this can be fixed), its effect on the growth and development of the internet has been largely positive. Section 230 has even been credited with singularly shaping the development of the internet as we know it.[13]
Section 230 generally protects tech companies—as well as startups and hobbyist bloggers who host comments—from liability for user-generated content. This essential protection is a fundamental necessity for doing business on the internet, not a special privilege. We all benefit from innovation and competition among the providers of tech-enabled services—from home delivery to entertainment to local transportation and travel to the availability of vast information and educational resources to matchmaking. Removing this liability protection would, in the long run, harm the “little guy” more than it would harm Big Tech.
As understandably frustrated as so many are with Big Tech and its enormous influence on American life, the total repeal of Section 230 is not the proper remedy. To maintain an online environment that is vibrant, open, dynamic, and convenient, there must be reasonable limits on the financial risks associated with developing new applications and launching new ventures. Hobbyists publishing recipes and cooking videos on a private URL should not be held liable for offensive content that passersby may decide to post on a whim. Startups that are fortunate enough to experience sudden geometric growth should not be forced to prioritize and allocate disproportionate resources to human moderation of user-generated content during a make-it-or-break-it growth phase. Imposing this burden on “small tech” by law would create yet another barrier to entry and further shield Big Tech from meaningful competition.
A bill introduced in the Senate during the second session of the 116th Congress by Senators Graham (R-SC) and Blumenthal (D-CT) called the Eliminating Abusive and Rampant Neglect of Interactive Technologies Act of 2020 (EARN IT) would establish a National Commission on Online Child Sexual Exploitation Prevention, under the control of the Attorney General, to recommend best practices that platforms may (or may not) choose to implement to prevent and respond to instances of child sexual abuse on their platforms. The original bill would also have carved out a second statutory exception to Section 230 liability protections for tech companies that fail to comply with the Commission’s recommended best practices or demonstrate to the Commission that they have in place their own reasonable practices for preventing child sexual exploitation on their platforms. That provision was not included in the substitute version of the bill reported to the Judiciary Committee in July 2020.
The original version of the bill came under fire for an entirely different reason. The original bill would also have guaranteed “legal access” by law enforcement to any digital message, a provision that critics claimed would effectively ban the use of encryption technology in the United States—yet another debate for which Section 230 is not the proper forum. Not only was the new requirement regarding encryption removed from the substitute version of the bill, the substitute bill also expressly protects platforms from both civil and criminal liability for child sexual exploitation based solely on their use of encryption technology—even when it impedes law enforcement from gathering evidence.
In June 2020, Attorney General William Barr sent proposed legislation to Congress that would condition immunity from liability for moderation decisions upon compliance with the moderation parameters set forth in his amended Subsection (c)(2). Specifically, moderation decisions would be shielded from liability only when platforms have an “objectively reasonable belief” that the moderated content is “obscene, lewd, lascivious, filthy, excessively violent, promoting terrorism or violent extremism, harassing, promoting self-harm, or unlawful, whether or not such material is constitutionally protected,” and only when they moderate in “good faith,” a requirement that Barr’s proposed legislation defines in detail.[14] Any other moderation decisions would not be shielded from liability under Section 230, although the general exemption from civil liability for unmoderated non-criminal content would remain in effect. The proposal is clearly intended to discourage “censorship” of political content. It might discourage some platforms from moderating most or all “category 2” (objectionable but not illegal) content.
Second, the Barr proposal would remove liability protections in circumstances where platforms purposefully “promote, solicit, or facilitate” third-party content or activity in violation of any Federal criminal law (called the “Bad Samaritan Carve-Out”).[15] Third, just as FOSTA-SESTA created an exception for sex trafficking content (see above), the Barr proposal would create three additional, specific exceptions—for child abuse and exploitation, terrorism, and cyberstalking content. Fourth, the Barr proposal confirms that the Federal and state governments could bring civil actions against platforms in connection with any failure to remove criminally unlawful content under one of the statutory exceptions to Section 230.
Barr’s proposed legislation is not unreasonable. Platforms of all sizes would continue to enjoy broad protections under Section 230, except when they cannot provide a “reasonable factual basis” for their moderation decisions. The addition of a “Bad Samaritan Carve-Out” would certainly be positive to the extent that it reinforced the ability of law enforcement to prosecute actual criminality that causes serious harm.
The “good faith” standards set forth in the Barr proposal are quite superior to those included in the Limiting Section 230 Immunity to Good Samaritans Act introduced at about the same time by Senators Josh Hawley (R-MO), Marco Rubio (R-FL), Mike Braun (R-IN), Tom Cotton (R-AR) and Kelly Loeffler (R-GA).[16] The Senators introduced the bill in deference to former President Trump’s Executive Order aimed at exacting revenge on Twitter, Facebook, and Google (see above). Undoubtedly, the Senators’ principled effort was further inspired by a series of lawsuits brought against social media platforms by aggrieved “influencers,” such as far-right sensation Laura Loomer, among many others, that had failed to yield any relief for the plaintiffs from the pervasive tyranny of anti-conservative bias.
As previously mentioned, under current law, social media platforms are private spaces, and discrimination on the basis of politics is not prohibited. Moreover, efforts by the government to regulate the moderation of legal content are likely unconstitutional under the First Amendment. It may well be that exceptionally large social media platforms have become de facto public spaces and should be treated as such for public accommodations and civil rights purposes. But Section 230 is not the proper forum for resolving such foundational and far-reaching issues.
The Platform Accountability and Consumer Transparency Act (PACT Act), introduced in June 2020 by Senators Brian Schatz (D-HI) and John Thune (R-SD), appears to be a sincere effort at meaningful reform that is uncomplicated by hidden motives. First, the Act would establish new transparency and reporting requirements that most major platforms already practice. Platforms would have to publish detailed acceptable use policies, detailed moderation standards, and quarterly statistics tracking their moderation decisions. All good. Second, platforms would have to provide users with mechanisms for reporting acceptable use violations and potentially illegal content, and for appealing moderation decisions.[17] Also good. Third, the Act would establish standards for processing, acting upon and responding to content-related complaints. Under certain circumstances, if platforms failed to comply with their own policies or applied them inconsistently, they could be subject to Federal Trade Commission enforcement actions for “unfair or deceptive acts and practices.” Points for creativity! Fourth, Section 230 protections would not apply in the case of certain violations, such as failing to remove illegal content within 24 hours of being notified by courts or users.
The proposed legislation would seem to incentivize platforms to adopt lenient acceptable use policies and to over-moderate, making it easier for malicious users to submit frivolous complaints to silence other users. Also, the Act would provide exceptions for smaller internet businesses—generally a fantastic idea! However, specifically with respect to criminality that causes serious harm, the smaller players probably commit some of the most egregious offenses.
Overall, the PACT Act would be a step in the right direction—a scalpel, rather than a chain saw. The Act deals primarily with the moderation of content that is actually illegal, as well as transparency in moderation practices generally, and it does not seek to misapply Section 230 to solve unrelated popular frustrations.
The Digital Millennium Copyright Act (1998) and the Stop Internet Sexual Exploitation Act—a bill intended to rein in platforms that facilitate distribution of non-consensual porn (AKA “revenge porn”) introduced in December 2020 by Senators Jeff Merkley (D-OR) and Ben Sasse (R-NE)[18]—are two examples of targeted legislation that creates appropriate and effective regulation to solve specific problems related to third-party content while leaving the broad general liability protections of Section 230 untouched.
If any of the advancements in computer technology since 1996 rise to the level of a paradigm shift, it is the capacity to compile gargantuan amounts of data about individual users, married with sophisticated algorithms that drive an unending stream of custom-curated content into the mind of each individual technology user. This hyper-automated bias confirmation complex plays upon the neural plasticity of the human brain, continuously reinforcing of our tribal beliefs. The colossal rift between the Two Americas is being hardwired into our brains at warp speed. Our country is being torn apart by the polarizing effects of tech-enabled echo chambers.
It is not their good-faith efforts to fact-check and remove egregious lies—and certainly not their efforts to prevent clear criminality—that renders the extension of Section 230 immunity to large social media platforms indefensible. Their destructive use of algorithms is what harms the public good! Big Tech’s reckless use of machine learning to maximize user engagement time by exploiting fear and outrage, for the ultimate purpose of monetizing users, in willful blindness to the devastating consequences, should be categorically prohibited as a strict-liability tort.[19]
Strategic curation of the content presented to users is the very definition of what it means to be a speaker or a publisher.
The use of algorithms for some purposes should be acceptable. Deploying user data and algorithms for the purpose of serving micro-targeted advertising content is a defensible practice. Advertising content is reviewed and approved by platforms prior to publication and, therefore, is not third-party content and, therefore, is not shielded from liability under Section 230 anyway. The utilization of algorithms as moderation tools (e.g., auto-removal of content containing the “N” word) is another constructive use.
But when user data and algorithms are deployed for the purpose of custom curating third-party content—to any extent—the offending platform should lose all liability protections under Section 230 and be liable for all third-party content.
Tech companies should exercise no influence whatsoever on the reach of any non-commercial, third-party content on their platforms. Two factors only should affect the third-party content to which users are exposed: (1) their own independent efforts to seek and to select the content they prefer to consume and, (2) the sharing of content by other users with whom they have consented to connect on a platform—displayed in a non-curated format (e.g., reverse chronological order). Both amplifying and constraining the reach of any user-generated content algorithmically should be illegal.
This proposed change would only lessen, not eliminate, the problem of echo chambers.[20] Since it is not a legitimate interest of government to constrain the rights of users to consume any legal content of their choice, the proposed change strictly targets platforms, not users. People are people. But the tech-driven bias confirmation machine is overwhelming our human frailty and adding fuel to the fire of our innate tribalism. This is not making us freer and will not end well, if allowed to continue. Algorithm abuse is the ultimate product liability atrocity!
The Congress should find that the misuse of algorithmic curation technology causes severe harm to the public and should legislate against any use of such technology—either to amplify or to limit the reach of—third-party content, under penalty of the immediate loss of all Section 230 protections across all social media platforms owned or operated by the offender. Severe mandatory civil penalties and
regulatory sanctions should also be imposed.
(1) While it is certainly true that Section 230 has shielded internet companies and their responsible agents from civil actions in cases where they had been knowing enablers of, or the principal actors in, criminal activity, this commentator has been unable to verify that the law has ever been misapplied as a shield against culpability for the underlying criminal conduct. Any such misuse would obviously constitute a serious injustice.
(2) It is by no means clear that all content moderation practices are of the same kind. For example, when Twitter moderators attach a warning label to a questionable Tweet, is Twitter engaging in constitutionally protected counter-speech (i.e., beyond the reach of government to regulate or sanction) or is it revising the speech of the original speaker (i.e., as co-speaker), despite being treated as merely a distributor with moderation privileges under Section 230?
(3) Given the technically legal rights of platforms to discriminate on the basis of politics and to engage in arbitrary and inconsistent moderation, what, exactly, under the existing language of Section 230(c)(2) would constitute moderation in “bad faith” (assuming that the moderated content is merely objectionable to someone, and not illegal)?
According to the Internet Association, a not-disinterested lobbying group representing “medium-big-to-big tech,” the parties that have “relied on” Section 230 as a legal defense include “internet service providers and website hosts, newspapers, universities, libraries, search engines, employers, bloggers, website moderators and listserv owners, marketplaces, app stores, spam protection and anti-fraud tools, domain name registrars, and social media companies.” The percentage of said parties who have successfully relied on Section 230 immunity was not reported. Regardless, the law does protect any website, computer application, or mobile application—from bloggers to news and sports apps, to fin-tech, to e-commerce, to content aggregators, to affinity websites, to social media platforms, etc. ↑
It is more than trivially ironic that free-market conservatives who have long asserted—with quasi-religious fervor—that markets are “self-correcting” and that they lead naturally to the optimal allocation of resources are now incensed that Big Tech’s market-driven moderation practices are impacting them in ways they did not expect. When entire classes of workers are displaced by tectonic shifts in the structure of the economy, those externalities are dismissed as “natural workings of the market.” But any constraints on their “right” to post content to social media platforms is tyranny, “Yes, tyranny, I tell you!” SMDH ↑
In the case of Boy Scouts of America v. Dale (2000), the Supreme Court of the United States, relying on an earlier precedent, held that a private organization’s First Amendment Right of Free Association (citing its “implicit” right of non-association) trumps the State of New Jersey’s public accommodations law prohibiting discrimination on the basis of sexual orientation, which, like political beliefs, is not a Federally protected trait. Also note that, like social media platforms, private organizations such as the Boy Scouts are not public accommodations, under Federal law. ↑
Two early cases illustrate the “Moderator’s Dilemma” that Section 230 was intended to resolve. In Cubby, Inc. v. CompuServe Inc. (SDNY 1991) the Court held that CompuServe was not liable for allegedly defamatory content posted by a third party because it had made no effort to moderate the large volume of third-party content on its platforms and, therefore, was presumed unaware of the defamatory nature of the content and, therefore, was deemed to be a mere distributor of it. However, in Stratton Oakmont, Inc. v. Prodigy Services Co. (SCONY 1995) the Court held that Prodigy’s established moderation practices were a form of editorial control and that Prodigy, therefore, was liable as the publisher of allegedly defamatory content posted by a third party. The takeaway from both cases was that liability risk is minimized when platforms do not moderate third-party content at all. But refraining from content moderation altogether is problematic because, without it, platforms would eventually be overrun by offensive and criminal content that users would find objectionable. Section 230 was enacted to release platforms from this no-win situation for the public good. ↑
Because of their classification as “common carriers” under Title II of the Communications Act of 1934, the telephone companies that provided the land-wire infrastructure over which most internet traffic was transmitted (in 1996) were already shielded from content-related liability and exempted from any potential duty to moderate content. ↑
The outdated language of the statute has subsequently been clarified by the courts. “Interactive computer service” has been interpreted as including essentially any service or platform through which content is accessed. “Information” means content, broadly defined. “Information content provider” refers to the creators and publishers of any type of content—text, audio, images, video, etc. “Restrict access to” includes labeling, curating, removing, blocking, deleting, and, of course, restricting access to content. ↑
Here, “(1)” must be an overlooked typo that made it into the final legislation because the reference is nonsensical. The intended reference must surely have been: “…material described in paragraph (A).” ↑
In December 2019, Senator Elizabeth Warren (D-MA) and Representative Ro Khanna (D-CA) introduced bills that would have commissioned the Department of Health and Human Services to study the unintended harmful effects of FOSTA-SESTA on sex workers. The House version of the bill was called the SAFE SEX Workers Act. ↑
Perhaps the most accurate way to characterize social media platforms is to say that they are advertising and personal data collection platforms. If so, it is not clear how this may affect the “public accommodations” debate. ↑
Referring to Section 230, Subsection (c)(1), Jeff Kosseff, attorney, and Assistant Professor of Cybersecurity Law at the United States Naval Academy, calls Section 230 “The Twenty-Six Words that Created the Internet,” which is also the title of his 2019 book recounting the history of the legislation’s impact since enactment. ↑
Platforms would be acting in “good faith” if they established and disclosed detailed moderation practices that complied with the Barr proposal’s narrow definition of permissible moderation, implemented those practices consistently and without pretext, and provided affected users with explanations for their moderation decisions and a mechanism for appealing those decisions. ↑
The “Bad Samaritan Carve-Out” is a necessary and important proposal. There are many loathsome actors who operate websites and applications for the express purpose of promoting, soliciting, and facilitating criminal content and activity that causes serious harm.↑
Certain provisions of the Senate bill were not included in the Barr proposal, such as establishing statutory damages of $5,000 per user and limiting the applicability of the good-faith requirement to platforms with at least 30 million US users and $1.5 billion in global revenue. ↑
Platforms would be required to provide affected users with a detailed explanation for each decision to label, to remove, to demonetize, or to limit algorithmically the reach of any content within 14 days of making such decisions. ↑
The bill has been criticized for requiring independent adult content creators to disclose their personal information to platforms who may be run by despicable actors who should not be trusted with the information. ↑
Intending no hyperbole, former Google design ethicist, Tristan Harris, has characterized algorithmic technology’s capacity to overwhelm human weakness as “Checkmate Humanity”—an urgent and profound existential crisis that ultimately will lead to our demise.↑
For clarity, bona fide content creators (i.e., publishers, for liability purposes), such as Breitbart “News,” would still be allowed to pound falsehoods into the brains of users on their own platforms, but Facebook and Twitter (mere distributors of falsehood) would be prohibited from amplifying or limiting the reach of Breitbart content on their platforms. ↑
