The Myth of the Open Forum
How Twitter and Facebook Skirt the Law and Defraud the Public
Benjamin Franklin was a staunch defender of Freedom of the Press. And he was as staunch a detractor. It all depends on the point of view.
On September 12th, 1789, he made his views clear in a little tract most people have forgotten: "An Account of the Supremest Court of Judicature in Pennsylvania, viz., The Court of the Press."
In it, with characteristic humor, Franklin complains of the effects of the unbridled liberty of the Press, as exercised by the broadsides of the time (our media), comparing them with a court of judicature run amock:
"It may receive and promulgate accusations of all kinds, against all persons and characters among the citizens of the State, and even against all inferior courts; and may judge, sentence, and condemn to infamy, not only private individuals, but public bodies, &c., with or without inquiry or hearing, at the court's discretion."
We all have seen the abuses of the media that bear too close a resemblance to this statement. In fact, the following paragraph so closely resembles the late coverage of Justice Kavanaugh's nomination as to make us wonder how can we be so immune to the warnings of one of our greatest Founding Fathers nearly 230 years ago:
"It is not governed by any of the rules of common courts of law. The accused is allowed no grand jury to judge of the truth of the accusation before it is publicly made, nor is the Name of the Accuser made known to him, nor has he an Opportunity of confronting the Witnesses against him; for they are kept in the dark, as in the Spanish Court of Inquisition. Nor is there any petty Jury of his Peers, sworn to try the Truth of the Charges. The Proceedings are also sometimes so rapid, that an honest, good Citizen may find himself suddenly and unexpectedly accus'd, and in the same Morning judg'd and condemn'd, and sentence pronounc'd against him, that he is a Rogue and a Villain."
But the practitioners of this ignoble trade, believe themselves to be above judgement themselves:
"Yet, if an officer of this court receives the slightest check for misconduct in this his office, he claims immediately the rights of a free citizen by the constitution, and demands to know his accuser, to confront the witnesses, and to have a fair trial by a jury of his peers."
Franklin's anger was clearly in evidence when referring to what I came to call "inkshitters" during my brief sojourn in Twitter, that "one citizen in five hundred, who, by education or practice in scribbling, has acquired a tolerable style as to grammar and construction, so as to bear printing," is extended to those who patronize them.
"Their support is founded in the depravity of such minds, as have not been mended by religion, nor improved by good education;
"There is a Lust in Man no Charm can tame, Of loudly publishing his Neighbour's Shame."
"On Eagle's Wings immortal Scandals fly, While virtuous Actions are but born and die."
Whoever feels pain in hearing a good character of his neighbour, will feel a pleasure in the reverse. And of those who, despairing to rise into distinction by their virtues, are happy if others can be depressed to a level with themselves, there are a number sufficient in every great town to maintain one of these courts by their subscriptions. A shrewd observer once said, that, in walking the streets in a slippery morning, one might see where the good-natured people lived by the ashes thrown on the ice before their doors; probably he would have formed a different conjecture of the temper of those whom he might find engaged in such a subscription."
His solution to the quandary was clear and concise:
"My proposal then is, to leave the liberty of the press untouched, to be exercised in its full extent, force, and vigor; but to permit the liberty of the cudgel to go with it pari passu. Thus, my fellow-citizens, if an impudent writer attacks your reputation, dearer to you perhaps than your life, and puts his name to the charge, you may go to him as openly and break his head. If he conceals himself behind the printer, and you can nevertheless discover who he is, you may in like manner way-lay him in the night, attack him behind, and give him a good drubbing. Thus far goes my project as to private resentment and retribution. But if the public should ever happen to be affronted, as it ought to be, with the conduct of such writers, I would not advise proceeding immediately to these extremities; but that we should in moderation content ourselves with tarring and feathering, and tossing them in a blanket."
Besides the incontrovertible fact that Twitter would have banned Benjamin Franklin as it did Thomas Wictor for what they would denounce as a "call to violence" giving indisputable proof of their inability to understand the written language, the idea seems good even today. Indeed, our legislatures did heed Franklin's advise and passed a number of laws designed to prevent the abuses of inkshitters and provide a measure of relief to those suffering from "impudent writer attacks" on their reputation. Thus, Freedom of the Press was tempered by libel and defamation laws.
In 1996, Congress, in its infinite wisdom, passed the Communications (in)Decency Act (CDA.) While much of this obnoxious attack on reason was later repealed as unconstitutional, one bit remained, hidden among its many pages of gibberish: Section 230: "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." In other words, any slanderous, defamatory or otherwise criminal content posted in sites like, say, Twitter or Facebook, do not attach liability to the host, and are the sole responsibility of the poster (47 U.S. Code § 230, C, 1.)
This is what "social media" platforms have used to protect themselves from liability. And for many years it worked.
Alas, the political hacks that now control de social media giants have decided to edit content. For there is no other way to describe the acctions, one is tempted to say co-ordinated actions of social media platforms to edit, censor or otherwise control the content in their services. That turns them. into publishers and makes them liable, right? Not so fast. The geniuses who crafted that abominable CDA, inserted this beauty immediately following:
(2) CIVIL LIABILITY: No provider or user of an interactive computer service shall be held liable on account of
(a) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or
(b) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).
What is "otherwise objectionable" is anybody's guess. There was a time when ambiguous laws were deem to be unconstitutional since compliance or non compliance is subject to the discretion of the enforcer. Maybe this one is, too. Certainly it does one thing: It gives the likes of perjurer Jack Dorsey a kind of censorship power the Constitution denies everyone else, including the government,.
Perhaps the time has come for a class action suit to force the courts to determine if speech in public forums is free, or if it subject to the whims of unelected, unaccountable, uneducated and ultimately irresponsible partisan hacks.
Or perhaps Congress should intervene and undo the damage it inflicted upon us with the CDA, letting the chips fall where they made and making social media platforms liable should they exercise editorial prerogatives over the content they publish, just like any other medium.
Alternatively, we may have to propose, as did Franklin, 230 years ago, the Liberty of the Cudgel and abandon all pretense at inhabiting a civilized society.
Time will tell.
In the meantime, social media giants will continue to defraud the public by exercising the prerogatives of publishers while hiding behind the vine leaf of the CDA pretending to be an open forum, thus skirting the laws that were once effective in protecting the public against the abuses of the press.
Our legislators would do well to take heed of Franklin's words, and should they deemed it disagreeable that the populace take matters in their own hands be it by settling accounts with offenders in person or clogging the court system with endless litigation, and
"…should be thought that this proposal of mine may disturb the public peace, I would then humbly recommend to our legislators to take up the consideration of both liberties, that of the press, and that of the cudgel, and by an explicit law mark their extent and limits; and, at the same time that they secure the person of a citizen from assaults, they would likewise provide for the security of his reputation."
Of course, if no action is taken in the next two months, expect at least two more years of abuses, as the Democrats have never been too keen in considering the long term effects of their follies.
Just in case, I shall stockpile on tar and feathers, should the propicious occasion arise.