No, Twitter Ought to Not Take Down The McConnell Parody – Thelegaltorts

No, Twitter Should Not Take Down The McConnell Parody – JONATHAN TURLEY

For years, I have criticized those who have called for increased censorship on the Internet, including regulation of political speech by companies like Facebook and Twitter. There is a legitimate debate over the continued use of Section 230 of the Communications Decency Act by these companies when they are engaged in such censorship (and alleged viewpoint bias). However, President Donald Trump’s call for Twitter to take down a parody of Senate Majority Leader Mitch McConnell is wrong on a number of levels. It would only fuel the erosion of free speech on the Internet in curtailing political commentary.

Yesterday, President Trump struck out at the picture of McConnell in a Russian military uniform:

The tweet says:

Why does Twitter leave phony pictures like this up, but take down Republican/Conservative pictures and statements that are true? Mitch must fight back and repeal Section 230, immediately. Stop biased Big Tech before they stop you!

It is a particularly curious objection from a politician who regularly parodies his political opponents with insulting names and descriptions. Parody is one of the oldest forms of political discourse.  Since Hegemon of Thasos, parodia has been a literary device and an important form of political speech.  Parody and satire have long been used to emphasize (and often exaggerate) political objections to our leaders.

In  White v. Samsung Elec. Am., Inc., 989 F.2d 1512, 1519 (9th Cir. 1993), then Chief Judge Alex Kozinski wrote in dissent that “The First Amendment isn’t just about religion or politics – it’s also about protecting the free development of our national culture. Parody, humor, irreverence are all vital components of the marketplace of ideas.” The Supreme Court has repeated affirmed the importance of parody and satire as protected speech.  In Campbell v. Acuff-Music, Inc., 510 U.S. 569, 579 (1994). Justice David Souter noted that “parody has an obvious claim to transformative value.” 

Even vulgar parodies have been protected like the fake advertisement featuring evangelical minister Jerry Falwell: “At the heart of the First Amendment is the recognition of the fundamental importance of the free flow of ideas and opinions on matters of public interest and concern. ‘(T)he freedom to speak one’s mind is not only an aspect of individual liberty–and thus a good unto itself–but also is essential to the common quest for truth and the vitality of society as a whole.’” Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 50-51 (1987) (quoting Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 503-04 (1984)).

This parody of McConnell as “Moscow Mitch” may be unfair and insulting but it is quintessential political speech and should be protected. There is a legitimate criticism of companies like Twitter and Facebook for biased policies, but that should be part of a call for less, not more, censorship.

It is not just Trump who is calling for increased censorship.  I have criticized Democratic leaders who have made such limitation and regulation of free speech a central cause for their party.

Hillary Clinton has demanded that political speech be regulated to avoid the “manipulation of information” and stated that Facebook founder Mark Zuckerberg “should pay a price for what he is doing to our democracy” by refusing to take down opposition postings. In Europe, free speech rights are in a free fall, and countries such as France and Germany are imposing legal penalties designed to censor speech across the world.  Joe Biden has pushed for these companies to delete criticism of mail-in voting.

Many of us in the free speech community have warned of the growing insatiable appetite for censorship in the West. We have been losing the fight, and free speech opponents are now capitalizing on the opportunity presented by the pandemic. Representative Adam Schiff sent a message to the heads of Google, Twitter, and YouTube demanding censorship of anything deemed “misinformation” and “false information.” Schiff told the companies that they needed “to remove or limit content” and that, “while taking down harmful misinformation is a crucial step”, they also needed to educate “those users who accessed it” by making available the true facts.

All of these calls from the left and the right are efforts to control the speech of political critics and dissidents.  These companies should be criticized for the bias shown in past actions, which I have previously addressed. However, do not be misled by the fact that these voices are coming from opposite sides of our political debate. They are unified in the desire to curtail the most powerful forum for free speech in the history of humanity: the Internet. It is the bane of the existence of politicians around the world and they want to control it.  To do that, they have to get free citizens to call for their own censorship. Many have yielded to that siren’s call to the peril of free speech.

That is far too high a price to pay to protect Sen. McConnell from the insults of political parody.

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