The Case For Web Originalism – Thelegaltorts

The Case For Internet Originalism – JONATHAN TURLEY

Below is my column in The Hill on Twitter’s adoption of a “living Internet” approach to censorship policies. In particular, at the recent Senate hearing, Democratic Senators called for more censorship, despite Big Tech CEOs admitting blocking the Hunter Biden story was a mistake. Twitter and Facebook responded within days with new attacks on freedom of expression by shutting down conservative views from a Republican women’s group and one of the top officials in the Trump administration.

Here is the column:

Twitter eventually lifted the New York Post’s suspension for reporting on Hunter Biden’s laptop. The decision came two weeks after both Twitter and Facebook blocked access to the story through his emails, which appeared to have influenced the peddling and contradicted previous statements by former Vice President Joe Biden. Twitter now admits that there was no evidence that the emails were fabricated or the product of Russian disinformation, a conclusion confirmed by both the Federal Bureau of Investigation and the Director of National Intelligence.

Instead of apologizing for its mistake, however, the company used a strangely familiar argument to apologize for its decision: its policies are “living documents” that are constantly changing. That sounds like an internet version of the “living constitution” theory used by lawyers like the late Judge Ruth Bader Ginsburg to continually update the meaning of the constitution. Twitter’s claim should turn every citizen into a strict “internet originalist”. Before going into the theory of “Living Twitter”, some facts about the story should be disclosed.

The Biden did not deny that it was actually Hunter Biden’s laptop and email. Second, different senders and recipients of the emails have confirmed that the emails are real. Third, not only was the laptop subpoenaed by the FBI last year as part of a money laundering investigation, but the FBI has confirmed that an investigation into the emails – including Hunter Biden’s involvement – is ongoing. Finally, a former business associate has alleged that Joe Biden’s previous denial of knowledge or involvement in his family’s business relationships are “lies” and criminalized his allegations by the FBI for making false statements.

There is no evidence that the laptop or the emails are wrong. In fact, the only apparent “disinformation” about this story has come from Joe Biden and his allies. For example, House Intelligence Committee chairman Adam Schiff stated that the entire story was Russian disinformation, a claim Biden repeated this week. In reality, Twitter and Facebook have attempted to bury a New York Post story that appears to be accurate about the source and content of the emails.

After Twitter dropped its suggestion of Russian disinformation, it claimed the underlying material was hacked material – a claim that is ridiculous at first glance, given that the post’s article is based on the contents of an abandoned laptop. Now the social media company claims its policies should be read like a living constitution: “Our policies are living documents. We are ready to update and adjust them as we come across new scenarios or receive important feedback from the public. “

It’s exactly the kind of argument that would distract the late Judge Antonin Scalia. Scalia rejected this approach to interpreting the Constitution as little more than opportunism to change the meaning of rights without having to seek citizen approval through amendments: “You’d have to be an idiot to believe that; The constitution is not a living organism. It’s a legal document. It says one thing and doesn’t say anything else… ”This view is shared by recently sworn judge Amy Coney Barrett, who recently testified:“ I interpret the Constitution as law. That I interpret his text as text. I understand it has the meaning it had at the time people ratified it. So that meaning doesn’t change over time, and it’s not up to me to update or bring into my own policy views. “

I am not a constitutional originalist, but I am an internet originalist. The Internet was originally the greatest advance in free speech since printing. It was an open, free platform for speech that united the world. No wonder it was also a threat to authoritarian countries and personalities who had difficulty controlling and censoring the exchange of information and viewpoints. Originally, Twitter was the ultimate expression of these values ​​of freedom of speech, connecting people with others for instant observations and experiences.

However, the original free use of the internet has come into increasing conflict with liberal politicians who are demanding that social media companies actively prevent people from disclosing information they believe is false or misleading. Joe Biden has called for these companies to block postings that link mail voting to fraud. Democratic leaders such as House Speaker Nancy Pelosi have threatened criminal laws if companies fail to censor groups accused of disseminating false information.

In this week’s Senate hearing on Twitter’s suppression of the Biden story, Democratic senators ignored Big Tech CEOs’ admissions that they were wrong to lock down the story and instead insisted that CEOs pledge to significantly increase that censorship increase. Senator Jacky Rosen warned CEOS that “you are not doing enough” to prevent “disinformation, conspiracy theories and hate speech on your platforms”.

That is why an interpretation of the “living internet” is so dangerous. These companies are driven by profits and politics, not principle. When Democrats take control of Congress and the White House, these companies will face growing demands for increased censorship. In this case, the “Life Guidelines” will change to update and adjust them as we encounter new scenarios or receive important feedback.

The alternative is “internet originalism” – no censorship. If social media companies returned to their original roles, there would be no slippery propensity for political bias or opportunism. They would take on the same status as telephone companies. We don’t need companies to protect us from harmful or “misleading” thoughts. The solution to bad language is more language, unapproved language.

If Pelosi asked Verizon or Sprint to cut calls to prevent people from saying wrong or misleading things, the public would be outraged. Twitter has the same communication function between the contracting parties. It simply enables thousands of people to participate in such a digital exchange. These people do not sign up for an exchange of ideas just to have Dorsey or some other internet overlord monitor their conversations and “protect” them from incorrect or harmful thoughts.

It’s been a long time since some geniuses developed a new form of communication on Twitter. At that time the platform was neutral. Her attraction was her comfort, not her supervision. Dorsey himself said that the success of Twitter is based on the principle of “making every detail perfect and limiting the number of details to the perfect”.

A free and open forum for communication was the original and perfect design. And here, too, the Constitution could offer the clarity of this original meaning to keep the detail to the perfect. To paraphrase the first change, Twitter should revert to a simple static, “originalist” position: it should “not make policies that restrict freedom of expression or freedom of the press”.

Jonathan Turley is Shapiro Professor of Public Interest Law at George Washington University. You can find his updates online at JonathanTurley.

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