Dissolving Trump’s Sand Castle of Lies

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As Covid-19 resurges, fewer people will be enjoying summer making sand castles in the surf. So it’s a good time to consider how Donald Trump guards his hold on political power with sand castles of lies, falsehoods and misleading statements. As of April 14, 2020, there were 18,000 of them, according to the Washington Post.

Trump can get away with this for three reasons. First, we have the First Amendment. Anyone can say anything, subject only to the law of defamation, which has little bite, especially in politics. Second, he’s the President of the United States. As the Nazis discovered when they invented the “Big Lie,” authority figures can get the public to believe lies if only they repeat them often enough. Our country has no higher authority figure than “POTUS,” the President of the United States.

This president’s inconsistency and frequent reversals and back-pedaling can dilute the effects of some of his lies. But like any merchant of cheap wares, he makes up for his low level of “quality” in volume.

Third and most important, were not in your mother’s media environment. Enormous numbers of people get their “news” from media that have no professional journalists and therefore no professionalism, let alone editing or quality control. Our so-called “social media” provide “many-to-many” communications platforms that are unique in human history. They’ve existed for less than a single generation.

What’s different about social media is not just that they’re private businesses, but that they use unprecedented many-to-many communications protocols. Anyone can post “news” on them, including “fake news,” made-up incidents and outrages, and wholly invented facts. And the corporate publisher—the social media platform—can escape any liability for these lies under our law.

Why is this so? Well, our First Amendment lets anyone say virtually anything. It protects everyone, including private corporations like Twitter and Facebook. It restricts only government—including the president in his official capacity—from censoring or restricting others’ speech. It does not inhibit what the president himself can say or write.

As Laurence Tribe, the foremost single professorial authority on our Constitution, recently wrote, the First Amendment does not restrict the activities of private parties at all. Our Constitution lets them pick and choose what they wish to say, write and publish—or not—at will. Only lesser laws, such as the law of defamation, encourage their honesty.

The last piece of our dismal puzzle is a thing called Section 230 of the Communications Decency Act of 1996 (“CDA”). I’ve written a long post on it, including a suggested amendment. But the bottom line is simple: Section 230(c)(1) wipes out any responsibility for falsehood—including the entire law of defamation—for lies published on social media, insofar as the media platforms are concerned. If you want to stop or punish the lies, you have to find and pursue the individuals who created and posted them. Good luck with that, especially if the original poster is a secret political troll hiding behind a virtual network and a bogus IP address, let alone a tech-savvy Russian or Chinese troll or spook!

This Catch 22 is particularly Kafkaesque where the president is concerned. As president, he can also exploit an age-old legal doctrine called “sovereign immunity,” aka “The King can do no wrong.” He can be sued but not prosecuted while in office. And as we know from the cases now before the Supreme Court, he can stall, delay and stonewall any attempt to use subpoenas to get evidence on which to sue him.

So insofar as presidential lies are concerned, our law completely wipes out responsibility for everyone. Until/unless the Supreme Court rules otherwise, the president walks by virtue of his sovereign immunity and his power as chief executive to suppress evidence. Facebook, Twitter and their ilk walk by virtue of CDA Section 230(c)(1). And the author of these particular lies walks because he is the president. So literally no one can be held legally responsible for presidential lies!

Now do you begin to understand why this president lies so often? He bears no cost or legal responsibility for his lies. Nor does anyone else involved. Our laws practically invite this president, and anyone else who might follow him, to govern like Adolf Hitler through Big Lies.

So why has Twitter begun sticking its neck out by putting little, discreet notices warning against a few of Trump’s most recent and most outrageous lies? If you’re an idealist, you might think this corporate change of heart springs from decency or patriotism. But there are more cynical and less noble reasons.

Lately there have been more vigorous calls, including my own, to take away the legal immunity that Section 230(c)(1) gives social media. As the president’s lies grow more and more numerous and more and more vicious, and as our society succumbs to an inability to distinguish truth from lies and loses all touch with what we used to call “reality”, those calls are getting louder and gaining more political traction. Before the pandemic really started to bite, even our head-in-sand Senate held hearings on the topic.

As is so often true in our fundamentally corrupt, “monetizing” society, it’s all about money. Take away Section 230(c)(1), and Twitter and Facebook might suffer an avalanche of lawsuits. That would hurt their bottom lines. So would the expense of identifying and blocking made-up “facts” and defending their doing so in the courts of public opinion and (only occasionally) law.

Decency and patriotism might whimper, but money talks. In theory, it ought to help that a noted authority on constitutional law has said that the First Amendment imposes no restraint on private social media for censoring what they consider false, let alone for daintily suggesting “alternative facts” through discreet notices and hyperlinks. So there’s no legal impediment to doing the right thing, only a corrupt monetary one.

Thus the fate of our Republic—not to mention our people’s ability to believe in any objective reality at all—now lies in the hands of private, profit seeking social-media firms. Most prominently it lies in the hands Twitter and Facebook and their respective CEOs, Jack Dorsey and Mark Zuckerberg. Zuckerberg, for his part, has reportedly agreed to accept lies in paid political advertising, so we know what’s in his heart.

Congress could nudge these men to do the right thing by doing more than opening feckless hearings on amendments to Section 230(c)(1). Our legislators could start making serious moves to repeal it altogether. That single-sentence subsection, which removes platforms’ liability, was snuck into our law in a so-called “midnight” amendment, whose subtitle doesn’t even match the whole section’s.

Can the rest of us also do something? I deleted Facebook about two years ago, after finding there was nothing I couldn’t do more easily and more quickly, with less “noise,” on other platforms. I’ve never had a Twitter account because I don’t believe you can post anything but slogans or insults in 240 characters. What about you?

Kara Swisher Agrees

Today Kara Swisher—the erstwhile Silicon Valley reporter and now New York Times columnist—coincidentally published a must-read op-ed explaining her decision to deactivate her own Facebook account. She compares it to trying to bring up her 16-year-old son the right way. Who would want a son whose “brilliant” creation profits and grows by disseminating the most vile hate and lies worldwide, while he hides sanctimoniously behind the banners of “freedom,” “communication” and technological advance? Does Zuck even read what his platform publishes? Call it great minds thinking alike. Call it an idea whose time has come. But if you passively accept, and therefore advance, a business that profits from the global destruction of truth, decency and respect (for both science and people) online, isn’t that even worse that not voting at all in 2020? And if good people feel so locked in or bamboozled as to fail to opt out on their own, should repeal of CDA Section 230(c)(1) be far behind?

Footnote: For two reasons, the law of defamation provides only a weak brake on lies. First, when the lies concern “public figures,” including politicians like Trump’s Democratic opponents, the law requires more than just proof of falsehood. It requires even more than mere negligence, which is Trump’s way of life. Instead, it requires a state of mind of “reckless disregard” for the truth, which must be proved by hard evidence. That kind of evidence is hard to get, especially in today’s political world, where “truthiness,” i.e., plausibility to the duped, has replaced reality and facts.

More important, the law of defamation arose to protect the reputations of individuals, not truthful and honest public discourse. So a lawsuit or prosecution for defamation requires a complaining individual or identifiable group. Then that individual or group must prove injury to reputation, caused by the alleged falsehood.

Many of Trump’s lies have no identifiable injured party. When Trump says his sparse inaugural crowd was bigger than Obama’s, for example, who’s injured? Obama is no longer president; he’s a private citizen. So what would be his injury? The real injury is to the truth, history, and the American people. Those abstract concepts are too diffuse a “group” to qualify as plaintiffs under defamation law.

What about when Trump falsely claimed that anyone who wanted one could get a Covid-19 test? Who was injured then? The people who wasted time trying vainly to find a test can’t prove that the lie caused their injury because their own false hope was an intervening cause. Even people who suffered, and the survivors of those who died, can’t prove that Trump’s lie caused their suffering. The virus did.

On the other hand, it’s no accident that Twitter’s lonely attempt to refute Trump’s lies came in a case with a clearly injured single individual. The lies claiming that a long-dead woman had been murdered by one of Trump’s many media gadflies affected the dead woman’s husband and his peace of mind. If nothing else, Twitter’s belated but unusual response in that case proves that monetary disincentives for promulgating lies, arising from legal liability, really do work.

Tabloids know this well; that’s why they take care in publishing dubious claims about the celebrities they cover. Most celebrities have the wherewithal to sue.

Defamation law grew up out of the law’s desire to stop personal affronts and the personal duels they used to cause in an earlier age. Defamation law was never intended to stop a wholesale assault on the very idea of “truth”—an assault that modern social media make possible.

If corporate platforms have no monetary incentive to control lies, then their users, including foreign spooks and trolls and our own president, will push our voters to believe that there’s no such thing as “truth” or “facts,” just competing lies. Then our democracy will degenerate into power plays based on lies and insults, just as it’s doing right now. The threat that unrestrained social-media platforms pose to any democratic republic, including ours, is really that simple, and that grave.

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