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Rockin Robin, you Really did it This Time.

I thought it would be nice if this space didn’t mention the pandemic for the first time in several months, but I wondered how that would be possible.

“How about a little civil unrest instead?” the Universe asked.

Wasn’t what I was hoping for, but it’s something. In the words of Gilda Radner’s Roseanne Roseannadanna, “its always something. If it’s not one thing, it’s another.” You said it, lady.

On top of mass illness, business failures, and general social unrest, we added protests after the killing of George Floyd.  To put it mildly, our country is not having a good week. I know Gentle Reader, my gift for understatement is amazing. As is my gift for stating the obvious. 

Some folks are having a pretty good week. Internet trolls are logging in long hours at the keyboards, stoking the tinder pile we live in. (I see you, Sofapants319. I am just ignoring you.) Avoiding social media has been added to my mental health prescription. In fact, I long for the days when we posted pictures of our lunches on the book of Faces instead of, well, most everything else.

Internet constitutional scholars are having a great time as well. Their opinions, unburdened by facts or even a working knowledge of the Constitution, are everywhere. Supply far out paces demand of course. It is a bit off putting when those sworn to uphold the Constitution have not read it. We keep learning that is our reality.

I am a late and very casual adopter of Twitter. Even after it became the de facto platform for our president to share his views on public policy, I resisted. I gave in and bought a slightly used Twittermachine when I found one at a sizeable discount from a street vendor. I still don’t know how to turn it on, and just use my computer when curiosity about the tweetscape overcomes me. I was surprised when the president decided to save us from censorship on Twitter.

Anyone with even a passing knowledge of the Constitution and its amendments understands that the right to free speech is not unfettered. Justice Holmes told us we can’t yell fire in a crowded theater. Private platforms have always had the right to limit offensive- to the proprietor- speech. Most social media platforms these days allow one not only to yell “fire” but to add gasoline as well. If you don’t like the platform, don’t use it has been the usual response. We used to believe that the free marketplace of ideas will weed out the bad ideas. R.I.P. Myspace.

Twitter became the target of an executive order restricting its ability to limit content, and challenges to the government’s authority to so do will no doubt make their way to our Supreme Court. It will be interesting to see the mental gymnastics the Court undertakes if it justifies forcing a commercial enterprise to serve up viewpoints with which it disagrees after telling a bakery in Colorado that it could refuse to serve those customers with disagreeable positions.

The stated goal of the executive order is laudable- to prevent restrictions on protected speech. No controversy there. But the deeper question is just outside of the order.  Does one have the right to tell lies on social media? If those lies are related to sales of a product, the answer has always been no. I look forward to a bright line test of what lies are protected.

The executive order doesn’t directly remove Twitter’s ability to limit offensive tweets. Rather, it attempts to strip away immunity for so doing. Section 230 of the Communications Decency Act gave internet hosting companies immunity for content posted on their sites, and the executive order removes immunity from social media platforms that attempt to edit content by challenging the “good faith” basis of their actions.

I confess that reading executive orders has never been part of my daily repertoire, except perhaps to combat insomnia. Reading this one should have remained on my list of things to avoid. The truth of many of the statements on which it relies is debatable, at best.  Even as a lawyer with experience in weeding through doublespeak, I got bogged down in the rhetoric.

One of the precedents on which it relies has a distasteful topic. The order cites approvingly the Supreme Court case of Packingham v. North Carolina, which held that even registered sex offenders have the right to use social media. Those who have spent time in Facebook jail or under a tweet lock say this often. Social media is a constitutional right in our country, unlike health care.

Packingham struck down a state law limiting registered sex offenders from social media access. This is the exact opposite of the government ordering a social media platform to allow speech which it finds contrary to its commercial interest. In his concurring opinion, Justice Alito agreed that the Court “should be cautious in applying free speech precedents to the internet.” He and the other justices that agreed with his opinion should be limbering up for the gymnastics ahead.

The text of executive orders is a traditional forum for a president to share his views. They are not as concise as a tweet, but there are no censors and few analysts. Perhaps this order is, as Shakespeare said, full of sound and fury, signifying nothing. The whole thing might be forgotten in a few weeks. If it is, I am confident there will be something else. There is always something.

©2020 under analysis llc. under analysis is a nationally syndicated column. Spencer Farris is the founding partner of The S.E. Farris Law Firm in St Louis, Missouri. He certainly had to stretch to find a song with “tweet” in it but is not ashamed.  Comments or criticisms about this column may be sent to Under Analysis via email at farris@farrislaw.net.