A Small Step toward Sanity

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“Those whom the gods wish to destroy they first make mad.” — ancient proverb, often attributed to Euripides

Facebook’s decision to bar The Demagogue from its platform for at least two more years is all over the news. Although he used Internet platforms to promulgate numerous lies, Facebook’s decision to ban him rested primarily on the Big Lie that the 2020 presidential election was “stolen.” That Big Lie helped foment the January 6 Capitol Insurrection, an act of collective violence unique in American history.

Now the Lie and its consequences have motivated the Demagogue’s two-year ban from Facebook and permanent ban from Twitter. As usual, the chattering heads will natter, confusing the issue with a torrent of sound and fury. But the outlines of these decisions’ rightness—indeed necessity—are simple and clear.

First, let’s look at the law. The law of the United States imposes little restraint on politicians lying, especially on the Internet through private firms like Facebook.

The First Amendment imposes no restraint on the speech of private parties and firms at all. Quite the contrary: it prohibits any branch of government from restricting their speech. “Congress” it says, “shall make no law . . . abridging the freedom of speech, or of the press . . . .” (emphasis added). It restricts government, not people or private firms.

Our Supreme Court extended the Amendment’s prohibition to state governments under the Fourteenth Amendment, which guarantees basic rights. But nothing in either amendment prohibits private individuals or private companies from restricting speech.

Our Supreme Court has made this clear in numerous precedents. No First Amendment challenge to censorship (or anything else) can even begin without proof of “state action,” i.e., a restrictive law, regulation or act of federal, state or local government. So our First Amendment leaves Facebook, Twitter, Fox and the rest free to censor, restrict, and distort speech, and indeed to lie at will, as long as they are not doing so under the auspices of or on behalf of government.

Insofar as private speech is concerned, the First and Fourteenth Amendments cut the other way. Under many Supreme Court decisions, private business corporations are “persons,” entitled to legal protection from governments’ interference with their speech. The infamous Citizens United decision was only the last in a long line of precedents making this point.

There are exceptions, but they are limited and narrowly construed. Like people, private corporations can’t engage in false advertising or trade libel that harms consumers and competitors. They can’t defame people or firms in ways that harm them, and they can’t incite violence and mayhem. Other laws limit the ways that certain corporations (mostly banks and securities issuers and brokers) have to disclose certain information, avoid lies, and keep customers’ information confidential.

But these exceptions are narrow, detailed, and specific. There is no general legal rule that restricts speech by private corporations, any more than speech by individuals. The First and Fourteenth Amendments see to that, because they keep government, i.e., “state action” from enforcing any such restriction. So Facebook, like you and me, can propagate pretty much anything it wants about politics and public affairs, subject only to laws against defamation, i.e., libel (written) and slander (oral).

Enter Section 230(c)(1) of the Communications Decency Act of 1996. This one-sentence “midnight amendment” to a law on another subject I’ve analyzed in several essays (See this one [search for “230”] for a summary and this one for a possible amendment). I won’t repeat the analysis here, just the result. For Internet platforms like Facebook, this law erases all liability for defamation based on things that others post on their platforms.

So Facebook cannot be legally liable for defamation in promulgating the Big Lie. Facebook can’t be liable whether the Demagogue posts the Big Lie himself, or when any one of this 71 million followers does. Facebook can’t be liable when Russian, Chinese or Iranian spooks repost it, with twists of their own. Facebook can’t be liable when any Internet troll, anywhere in the world, reposts it with his or her own variations.

In other words, Facebook is legally home free. It’s secure under the First Amendment and the midnight amendment, from any liability for defamation for propagating what may be the most consequential political lie in American history over what is undoubtedly the most powerful megaphone in human history, reaching about one-third of our the human species.

That’s why Facebook’s own decision to ban the Demagogue temporarily for his Big Lie was so consequential and so necessary. Without it, there would be no legal restraint on the Big Lie whatsoever. (The Demagogue himself is probably immune from civil liability under the doctrine of sovereign immunity. See this post at “sovereign.”)

Sure, injured parties could sue the originators of the Big Lie for defamation, as some voting-machine companies already have sued the Demagogue and others. But the practical difficulties of suing the other millions of propagators of the lie—many unknown, concealed, hiding or outside our nation’s jurisdiction—make any such effort ineffective. The cat will already have long leapt out of the bag.

When a lie causes personal injury or property damage, as in the January 6 Insurrection, injured parties might sue under general tort law, which the midnight amendment does not address. (I discuss this possibility in two other posts, here and here.) But a recovery of this sort requires proof of physical injury and causation, which would be difficult for all but the rarest of lies. And any recovery of damages will come only after years of litigation. By then, the damage to truth in the public mind will have been done and fixed in concrete.

The so-far theoretical possibility of legal liability for this rare sort of personal injury and/or property damage may have been a factor in Facebook’s decision to treat political speakers no differently than others in applying its platform’s rules. But infrequent real, physical injuries to people and property are hardly the most consequential harm of Facebook’s immunity. The greater harm is injury to truth, even loss of the concept of truth as an important social value.

Democracies need truth to survive. Because their people make their key decisions, the people must have access to the truth. If they are led to believe lies, Euripides’ observation comes into play. Decisions get made in a manner out of contact with reality, a psychological euphemism for insanity.

Authoritarian governments don’t need truth. At least they don’t need their people to know it. Their massive spying and intelligence organs can give the leaders all the truth they need. Then their propaganda organs can persuade the people to follow orders by any means necessary, including a convenient fabric of lies. If there is resistance, coercion and ultimately liquidation can do the rest. This is the course that Vladimir Putin is taking with Alexei Navalny, and Belarus’ dictator Lukashenko is following with the hapless hijacked native journalist Roman Protasevich.

There is little question which system is more “efficient” in putting truth to work. A dictatorship requires a smaller number of truth seekers (mostly known as “spies,” not “journalists”), and a much smaller circle of recipients and decision makers. And authoritarian control by decree, coercion, imprisonment, torture and murder takes less time than slowly and painfully persuading the masses.

Yet journalists in free countries perform much the same work as spies and intelligence analysts in both free and unfree ones. They collect facts and information. They interview people. They collect and analyze documents. They put what they collect together and line up the dots, using their accumulated experience, knowledge and understanding of human nature. Then they analyze and report, as clearly and succinctly as they can, making clear what is known and what is uncertain.

Under effective leadership, both spies and journalists are free to use their best judgment and report honestly. The only difference is that their audience is much smaller in unfree lands, and there is a personal risk there for being too honest.

Two recent revolutions in reporting have vastly complicated this picture. The first was the advent of mass electronic communication, first TV, then cable.

This consequential change in presentation shifted from a written and analytic “cool” medium, to the hot, emotional and reactive medium of video. More consequentially, it gave rise in free nations to profit-making mega-corporations, whose profit and executive salaries depend on the breadth of their audiences. This development, in turn, led directly to “news as entertainment” and to Fox. It also led to capture of the media by profit-hungry ideologues, who saw how to shape government and indeed their whole societies to their own profit-seeking ideologies.

The second revolution, which is only now gaining force, is far more consequential. The advent of “many-to-many” Internet platforms like Facebook and Twitter let anyone, anywhere pretend to be a journalist, regardless of training, professionalism, honesty, or level of commitment to accuracy and objectivity. Not just The Demagogue, but every foreign spook and troll, now has access to the global population directly, including most Americans. The once-able corps of “middlemen,” i.e., trained professionals, is mostly gone.

In this world there are no standards or rules, only anarchy and chaos. In fact, our First Amendment precludes government from creating such rules. It’s a canon of our Constitution and our “American way of life” that government cannot serve as arbiter of truth.

So truth, honesty and accurate analysis depend on things like Facebook’s platform rules, as embodied in its “click here” contract with users. Facebook—a private corporation controlled by a single man, Mark Zuckerberg—now essentially writes many of the rules for collecting, analyzing and reporting intelligence for the supposed rulers of the USA, its people.

At the moment, there are few, if any, other rules and standards for those tasks, let alone on private propaganda organs like Fox. The disciplined journalistic professionalism of Walter Cronkite and his peers is gone with the wind, at least outside of the so-called “mainstream” media.

Today the overwhelming majority of actual “reporters” in our video-Internet system have little or no contact with the ethics and standards taught in today’s journalism schools. Everything is becoming ad-hoc, audience-driven and attention-centric. That means ever more sensationalism and ever more entertainment as news. Even articles in the New York Times and the Washington Post are becoming more like short stories, told chronologically around the experiences of one or more individuals, rather than analytically with a summary lead and its logical exposition.

Under these circumstances, Facebook’s “truth committee” of outside experts is a small but positive step away from chaos and insanity. So is its decision to hold politicians to the same rules as other users. Its policy up to now—sort of a private-sector New York Times v. Sullivan [search for “Sullivan”]—gave politicians too much incentive to fabricate and to lie. That’s the last thing today’s pols need.

But make no mistake about it. The struggle to impose the disciplines of truth, accuracy and recognition of uncertainty on private electronic media, including the Internet, is just beginning. Our First Amendment doesn’t help; instead, it prevents government from writing or enforcing any rules.

With government constitutionally sidelined, the people, too, can’t act, at least not through government means. So the private sector must fill the gap. Our oligarchs and corporations must rise to the challenge, the more so as they are increasingly taking over traditional governmental functions in general.

So the fundamentals of democracy and its very viability are at stake. If our democracy degenerates into a system in which the oligarchs and elite are in the know and they delude the people by the most efficient and effective means possible, their rule will become indistinguishable from totalitarianism. Public access to good information is the key to avoiding this dismal outcome.

In historical perspective, we are about where democracy was in the early 1700s. We have tried to “democratize” information in a system without rules, but the oligarchs and pols have figured out how to control that system. They are becoming an aristocracy of a new sort, manipulating information accessible to the masses for their own ends.

History tells us what happens when such a system grows out of control. The French Revolution was one of the bloodiest and most excessive in history. And if the oligarchs succeed with subtlety and guile, we or our children or grandchildren may have only Orwell’s world to look forward to as an alternative.

True, the members of Facebook’s “truth committee” are not elected. True, they are in every sense members of the “elite.” But they have training and values far beyond mere profit or Zuckerberg’s infamous lust to “move fast and break things.” That’s a good start. Now the task is for Zuckerberg and Jack Dorsey (Twitter’s CEO) to make sure their private decisions on liars and propagandists are as collective, open, transparent, accessible, and sensible as possible.

The First Amendment precludes government from requiring fidelity to truth or any sort of discipline in finding it. The people have no practical way of acting, except through government. So the private sector must step in, in loco patriae (in place of the homeland). If there is a vacuum of rules and discipline, the worst sorts will step in and fill it. That’s the Demagogue’s message to the rest of us, loud and clear.

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