• Social Media Legally Falls Under the First Amendment; Here’s How

    January 18, 2019 // 14 Comments »


     
    A court just came close to acknowledging the First Amendment applies to social media. But there is still a lot of ground to cover to protect our free speech rights online.
     
    In Davison v Randall, a local government official blocked a constituent from an “official” Facebook page. The court held this to be viewpoint discrimination, a 1A violation in a long-recognized category of unconstitutional speech restraint. Advocates like the ACLU and Knight Institute supported the case to bolster the argument Trump cannot block people on his Twitter feed; lower courts have agreed it is unconstitutional under the 1A for Trump to silence his critics this way. The Department of Justice is appealing, and the ACLU is happy to build precedent with smaller cases like Davison v Randall, as the Trump case almost certainly will wind its way to the Supreme Court.

    The ACLU is likely to continue to prevail against Trump. The problem is while narrowly focusing on an individual politician’s responsibility not to block users with unpopular opinions, the courts continue to allow Facebook, et al, to do exactly the same thing on a much larger scale.
     
    In the age of Trump, social media companies’ suspensions skew against conservative and libertarian commentators (I am permanently banned from Twitter) but Facebook could just as easily block all Sanders supporters, or anyone left handed for that matter. Despite this, and driven in part by the ACLU’s apparent desire to only disadvantage Trump and not enlarge 1A protections in ways that might empower his critics, the broader issues are being bypassed in favor of a narrower one.

    The struggle to grow the 1A to cover social media has a history of piecemeal progress. One victory confirmed the status of social media, when the Supreme Court struck down a law making it a crime for registered sex offenders to use Facebook. Justice Kennedy wrote in Packingham v North Carolina social media is now part of “the modern public square.” Denying access violated the First Amendment.

    But the decision made clear unconstitutional denial still has to come from the government. Facebook and others may deny those speech rights any time they want. The argument only the government is covered by the 1A seems to have reached its limit with technology that so grossly delineates whose literal finger clicks the mouse when the results and implications for free speech in our society are exactly the same.

    Technology and market dominance complicate the 1A environment by giving greater power to a handful of global companies (currently all American but imagine the successor to Twitter based in Hong Kong with Chinese censors at the helm) even as the law seeks to crave the simplicity of the 19th century. That way of thinking requires willful ignorance that Facebook would never act as a proxy for the government, unconstitutionally barring viewpoints on behalf of a politician who would not be allowed to do it themselves.

    Except it already happened. Following a hazy intelligence community assessment accusing the Russians of influencing the 2016 presidential election, Twitter and Facebook punished Russian media RT and Sputnik by banning their advertising in line with the government’s position the two did not deserve the protections of the 1A. Senator Chris Murphy got it. He demanded social media censor more aggressively for the “survival of our democracy,” with companies acting as proxies for those still held back by the First Amendment.
     
    It may even seem to some a valid argument in the realm of social media. But when the same proxy idea appears in the flesh, the underpinning seems less acceptable. It is easy to see how the government using federal law enforcement to bar entry to opposition supporters at a town hall meeting held at some theater is unconstitutional. It is equally easy to see the president’s best friend hiring private security guards to do exactly the same thing would not pass a court challenge, yet that is basically what is currently allowed online.

    The sub-argument the theater is private property and thus outside the 1A (just like Twitter!) does not hold up. The Supreme Court recognizes two categories of public fora: traditional and limited public forums. Traditional public forums are places like streets, sidewalks, and parks. Limited public forums are not traditionally public, but ones the government has purposefully opened to some segment of the public for “expressive activity.” Like that town hall meeting held in a private theater.

    By inviting the public to Facebook for comment, the government transforms a private place into a limited public forum covered by the 1A. The Court only requires a “forum” for 1A purposes “to be private property dedicated to public use” or when the government “retains substantial control over the private property.” Like how the government cannot censor public library books even if the library is located in a private storefront. Like a Facebook page set up and administered by the government.

    The most analogous example of how shallow the debate is comes from a technology of the 1980s, one originally expected to change the nature of debate: public access television. Before the Internet, it was envisioned privately-owned cable TV companies would make air time available to the public as “the video equivalent of the speaker’s soapbox.” Even though the channel and equipment used to produce the programming was privately owned, the programming fell under the 1A. The Court concluded “public access channels constituted a public forum, notwithstanding that they were operated by a private company,” the dead solid perfect equivalent of social media.

    The faux public-private argument is being double-plus used as a work-around to prohibit disagreeable speech, say by labeling a conservative viewpoint as hate speech and letting @jack banish it. Millennials who celebrate Twitter not being held back by the 1A believe that power will always be used in their favor. But back to the law, which sees further than the millennial obsession with Trump. In City of Lakewood v Plain Dealer the Court held all that power was itself a 1A problem: “The mere existence of the licensor’s unfettered discretion, coupled with the power of prior restraint, intimidates parties into censoring their own speech, even if the discretion and power are never actually abused.”

    The once-upon-a-time solution was to take one’s free speech business elsewhere. The 2019 problem is the scale of the most popular social media platforms, near global monopolies all. Pretending Facebook, which claims it influences elections, is just another company is to pretend the role of unfettered debate in a free society is outdated. Technology changed the nature of censorship so free speech is as much about finding an audience as it is about having some place to speak. In 1776 you went to the town square. In 2019 that’s on popular social media. Your unknown blog is as free, and irrelevant, as a Colonist making an impassioned speech alone in his barn.
     
    Asking for the 1A to reach now to social media is in line with the flexibility and expansion the 1A has shown historically. For example, it wasn’t until the post-Civil War incorporation doctrine that the 1A applied equally to the states and not just the federal government. Some private institutions accepting federal funding are already covered by the 1A. The Supreme Court has regularly extended 1A protection to new and non-traditional speech, including nudity and advertising.

    Facebook and others like it have become the censors the Founding Fathers feared. The problem is the ACLU and other advocates today apply political litmus tests to what speech they will defend. And so they aggressively seek to force the 1A into social media to prevent Trump from blocking users he dislikes, but they have not taken on cases which would force the 1A into social media to prevent Facebook and Twitter from blocking users whose conservative and libertarian ideas upset their own viewpoints.

    The greater First Amendment challenge is thus stymied by politics, even while the problem only grows with the greater impact of social media. Yet the cornerstone of free speech, the critical need to have all views represented in a marketplace of ideas, has not changed. One hopes these core elements of our democracy will collide inside the Supreme Court in the near future. If not, the dangers of narrow, short term thinking, that Trump is the problem, not the one of access to free speech, will become more obvious.
     

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    Copyright © 2019. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

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    Posted in Democracy, Trump

    Dead Is Dead: Drone-Killing the Fifth Amendment

    July 25, 2014 // 7 Comments »



    You can’t get more serious about protecting the people from their government than the Fifth Amendment to the Constitution, specifically in its most critical clause: “No person shall be… deprived of life, liberty, or property, without due process of law.” In 2011, the White House ordered the drone-killing of American citizen Anwar al-Awlaki without trial. It claimed this was a legal act it is prepared to repeat as necessary. Given the Fifth Amendment, how exactly was this justified? Thanks to a much contested, recently released but significantly redacted — about one-third of the text is missing — Justice Department white paper providing the basis for that extrajudicial killing, we finally know: the president in Post-Constitutional America is now officially judge, jury, and executioner.

    Due Process in Constitutional America

    Looking back on the violations of justice that characterized British rule in pre-Constitutional America, it is easy to see the Founders’ intent in creating the Fifth Amendment. A government’s ability to inflict harm on its people, whether by taking their lives, imprisoning them, or confiscating their property, was to be checked by due process.

    Due process is the only requirement of government that is stated twice in the Constitution, signaling its importance. The Fifth Amendment imposed the due process requirement on the federal government, while the Fourteenth Amendment did the same for the states. Both offer a crucial promise to the people that fair procedures will remain available to challenge government actions. The broader concept of due process goes all the way back to the thirteenth-century Magna Carta.

    Due process, as refined over the years by the Supreme Court, came to take two forms in Constitutional America. The first was procedural due process: people threatened by government actions that might potentially take away life, liberty, or possessions would have the right to defend themselves from a power that sought, whether for good reasons or bad, to deprive them of something important. American citizens were guaranteed their proverbial “day in court.”

    The second type, substantive due process, was codified in 1938 to protect those rights so fundamental that they are implicit in liberty itself, even when not spelled out explicitly in the Constitution. Had the concept been in place at the time, a ready example would have been slavery. Though not specifically prohibited by the Constitution, it was on its face an affront to democracy. No court process could possibly have made slavery fair. The same held, for instance, for the “right” to an education, to have children, and so forth. Substantive due process is often invoked by supporters of same-sex unions, who assert that there is a fundamental right to marry. The meaning is crystal clear: there is an inherent, moral sense of “due process” applicable to government actions against any citizen and it cannot be done away with legally. Any law that attempts to interfere with such rights is inherently unconstitutional.

    Al-Awlaki’s Death

    On September 30, 2011, on the order of the president, a U.S. drone fired a missile in Yemen and killed Anwar al-Awlaki. A Northern Virginia Islamic cleric, in the aftermath of 9/11 he had been invited to lunch at the Pentagon as part of a program to create ties to Muslim moderates. After he moved to Yemen a few years later, the U.S. accused him of working with al-Qaeda as a propagandist who may have played an online role in persuading others to join the cause. (He was allegedly linked to the “Underwear Bomber” and the Fort Hood shooter.) However, no one has ever accused him of pulling a trigger or setting off a bomb, deeds that might, in court, rise to the level of a capital crime. Al-Awlaki held a set of beliefs and talked about them. For that he was executed without trial.

    In March 2012, Attorney General Eric Holder made quite a remarkable statement about the al-Awlaki killing. He claimed “that a careful and thorough executive branch review of the facts in a case amounts to ‘due process’ and that the Constitution’s Fifth Amendment protection against depriving a citizen of his or her life without due process of law does not mandate a ‘judicial process.’” In other words, according to the top legal authority in the nation, a White House review was due process enough when it came to an American citizen with al-Qaeda sympathies. In this, though it was unknown at the time, Holder was essentially quoting a secret white paper on that killing produced by the Office of Legal Counsel, located in the department he headed.

    In June 2014, after a long court battle to shield the underlying legal basis for the killing, the Obama administration finally released a redacted version of that classified 2010 white paper. In the end, it did so only because without its release key senators were reluctant to confirm the memo’s author, David Barron, who had been nominated by President Obama to serve on the First Circuit Court of Appeals. (Once it was made public, Barron was indeed confirmed.)

    The importance of the white paper to understanding Post-Constitutional America cannot be understated. Despite all the unconstitutional actions taken by the government since 9/11 — including striking violations of the Fourth Amendment — this paper is to date the only glimpse we have of the kind of thinking that has gone into Washington’s violations of the Bill of Rights.

    Here’s the terrifying part: ostensibly the result of some of the best legal thinking available to the White House on a issue that couldn’t be more basic to the American system, it wouldn’t get a first-year law student a C-. The arguments are almost bizarrely puerile in a document that is a visibly shaky attempt to provide cover for a pre-determined premise. No wonder the administration fought its release for so long. Its officials were, undoubtedly, ashamed of it. Let’s drill down.

    Death by Pen

    For the killing of an American citizen to be legal, the document claims, you need one essential thing: “an informed, high-level official of the U.S. government [who] has determined that the targeted individual poses an imminent threat of violent attack against the United States.” In addition, capture must be found to be unfeasible and the act of killing must follow the existing laws of war, which means drones are okay but poison gas is a no-no.

    The rest of the justification in the white paper flows from that premise in a perverse chain of ankle-bone-connected-to-the-leg-bone logic: the president has the obligation to protect America; al-Qaeda is a threat; Congress authorized war against it; and being in al-Qaeda is more relevant than citizenship (or as the document crudely puts it, “citizenship does not immunize the target”). International borders and the sovereignty of other nations are not issues if the U.S. determines the host nation is “unwilling or unable to suppress the threat posed by the individual targeted.” Basically, it’s all an extension of the idea of self-defense, with more than a dash of convenience shaken in.

    When the white paper addresses the Fifth Amendment’s right to due process, and to a lesser extent, the Fourth Amendment’s right against unwarranted seizure (that is, the taking of a life), it dismisses them via the “balancing test.” Not exactly bedrock constitutional material, it works this way: in situations where the government’s interest overshadows an individual’s interest, and the individual’s interest isn’t that big a deal to begin with, and a mistake by the government can later be undone, the full due process clause of the Fifth Amendment need not come into play.

    The three-point balancing test cited by the white paper as conclusive enough to justify the extrajudicial killing of an American comes from a 1976 Supreme Court case, Mathews v. Eldridge. There, the court held that an individual denied Social Security benefits had a right to some form of due process, but not necessarily full-blown hearings. In Anwar al-Awlaki’s case, this translates into some truly dubious logic: the government’s interest in protecting Americans overshadows one citizen’s interest in staying alive. Somehow, the desire to stay alive doesn’t count for much because al-Awlaki belonged to al-Qaeda and was in the backlands of Yemen, which meant that he was not conveniently available by capture for a trial date. Admittedly, there’s no undoing death in a drone killing, but so what.

    The white paper also draws heavily on the use of the balancing test in the case of Hamdi v. Rumsfeld, in which the U.S. rendered from Afghanistan Yaser Hamdi, a Saudi-American citizen, and sought to detain him indefinitely without trial. After a long legal battle that went to the Supreme Court, the balance test was applied to limit — but not fully do away with — due process. Despite limiting Hamdi’s rights in service to the war on terror, the court was clear: Yaser Hamdi should have a meaningful opportunity to challenge his status. Fearing that giving him his moment in court would expose the brutal reality of his capture, interrogation, and detention, the U.S. government instead released him to Saudi Arabia.

    Hamdi’s case dealt with procedural questions, such as whether he should be allowed a trial and if so, under what conditions. As with Mathews v. Eldridge, Hamdi never focused on issues of life and death. Cases can be (re)tried, prisoners released, property returned. Dead is dead — in the case of al-Awlaki that applies to the drone’s target, the balance test, and the Fifth Amendment itself.

    What Do Words Mean in Post-Constitutional America?

    Having dispensed with significant constitutional issues thanks to some exceedingly dubious logic, the white paper returns to its basic premise: that a kill is legal when that “informed, high-level official” determines that an “imminent threat” to the country is involved. In other words, if the president is convinced, based on whatever proof is provided, he can order an American citizen killed. The white paper doesn’t commit itself on how far down the chain of “high-level officials” kill authority can be delegated. Could the Secretary of the Interior, for instance, issue such an order? He or she is, after all, eighth in the line of succession should the president die in office.

    The white paper does, however, spend a fair amount of time explaining how the dictionary definitions of “imminent” and “immediate” do not apply. For kill purposes, it says, the U.S. must have “clear evidence that a specific attack on U.S. persons will take place in the immediate future.” However, the paper goes on to explain that “immediate” can include a situation like al-Awlaki’s in which a person may or may not have been engaged in planning actual attacks that might not be launched for years, or perhaps ever. The paper claims that, since al-Qaeda would prefer to attack the U.S. on a continual basis, any planning or forethought today, however fantastical or future-oriented, constitutes an “imminent” attack that requires sending in the drones.

    And if, as perhaps the author of the paper suspected, that isn’t really enough when faced with the bluntness of the Constitution on the issue, the white paper haphazardly draws on the public authority justification. According to this legal concept, public authorities can, in rare circumstances, violate the law  — a cop can justifiably kill a bad guy under certain conditions. By extension, the white paper argues, the government of the United States can drone-kill a citizen who is allegedly a member of al-Qaeda. The white paper conveniently doesn’t mention that police shootings are subject to judicial review, and those who commit such unlawful acts can face punishment. The laws behind such a review are unclassified and public, not the rationed fodder of a redacted white paper.

    For the final nail in the coffin of some American citizen, the white paper concludes that, Fifth Amendment violation or not, its arguments cannot be challenged in court. In cases of “foreign policy,” courts have traditionally almost always refused to intervene, holding that they are in the realm of the executive branch in consultation, as required, with Congress. Killing an American abroad, the white paper insists, is a foreign policy act and so none of any courts’ business.

    Principles

    Substantive due process legally applies only to legislation, and it is highly unlikely that the Obama administration will seek legislative sanction for its kill process. So it is in one sense not surprising that the white paper makes no mention of it. However, looking at what we can read of that redacted document through the broader lens of substantive due process does tell us a lot about Post-Constitutional America. In Constitutional America, the idea was that a citizen’s right to life and the due process that went with it was essentially an ultimate principle that trumped all others, no matter how bad or evil that person might be. What is important in the white paper is not so much what is there, but what is missing: a fundamental sense of justness.

    As medieval kings invoked church sanction to justify evil deeds, so in our modern world lawyers are mobilized to transform government actions that spit in the face of substantive due process — torture, indefinite detention without charge, murder — into something “legal.” Torture morphs into acceptable enhanced interrogation techniques, indefinite detention acquires a quasi-legal stance with the faux-justice of military tribunals, and the convenient murder of a citizen is turned into an act of “self-defense.” However unpalatable Anwar al-Awlaki’s words passed on via the Internet may have been, they would be unlikely to constitute a capital crime in a U.S. court. His killing violated the Fifth Amendment both procedurally and substantively.

    Despite its gravity, once the white paper was pried loose from the White House few seemed to care what it said. Even the New York Times, which had fought in court alongside the ACLU to have it released, could only bring itself to editorialize mildly that the document offered “little confidence that the lethal action was taken with real care” and suggest that the rubber-stamp secret Foreign Intelligence Surveillance Court be involved in future kill orders. The ACLU’s comments focused mostly on the need for more documentation on the kills. Meanwhile, a majority of Americans, 52%, approve of drone strikes, likely including the one on Anwar al-Awlaki.

    The Kind of Country We Live In

    We have fallen from a high place. Dark things have been done. Imagine, pre-9/11, the uproar if we had learned that the first President Bush had directed the NSA to sweep up all America’s communications without warrant, or if Bill Clinton had created a secret framework to kill American citizens without trial. Yet such actions over the course of two administrations are now accepted as almost routine, and entangled in platitudes falsely framing the debate as one between “security” and “freedom.” I suspect that, if they could bring themselves to a moment of genuine honesty, the government officials involved in creating Post-Constitutional America would say that they really never imagined it would be so easy.

    In one sense, America the Homeland has become the most significant battleground in the war on terror. No, not in the numbers of those killed or maimed, but in the broad totality of what has been lost to us for no gain. It is worth remembering that, in pre-Constitutional America, a powerful executive — the king — ruled with indifference to the people. With the Constitution, we became a nation, in spirit if not always in practice, based on a common set of values, our Bill of Rights. When you take that away, we here in Post-Constitutional America are just a trailer park of strangers.




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    Copyright © 2019. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

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