The brutal manslaughter of George Floyd by Minneapolis policemen has become a touchstone for so many societal hot spots. The most notable, of course, is the continued racial injustice by police in communities throughout the country. This is not new of course. We have seen it repeatedly over the years. I’m not sure anything I can say will add to the glaring and obvious problem of the white-authored, systemic oppression floated on POC in this country for centuries.
The fire at the MPD’s 3rd Precinct was only at one corner 5 minutes ago. It’s now spread across the entire building. With no firefighters on scene… that building will likely be destroyed tonight. pic.twitter.com/t6p3Yv1KYV— Seth Kaplan (@Seth_Kaplan) May 29, 2020
But it has lead us to the brink of another issue, and one that can only be possible in the Trump Administration: an attempt to violate the First Amendment.
In the early hours of the morning, rioters took to the streets of Minneapolis-St.Paul, and burned and looted large sections of that community. Trump took to Twitter:
You see that? Twitter put a warning on one of his tweets (although it made it visible “in the public interest”). This is what it said.
….These THUGS are dishonoring the memory of George Floyd, and I won’t let that happen. Just spoke to Governor Tim Walz and told him that the Military is with him all the way. Any difficulty and we will assume control but, when the looting starts, the shooting starts. Thank you!— Donald J. Trump (@realDonaldTrump) May 29, 2020
When the looting starts, the shooting starts? WTF?
You’d think Donald Trump would have more sympathy for looters, being a looter himself. The president has helped himself to money from the U.S. Treasury, using political power to direct public money to his personal businesses. It’s not as visual as a riot, but until 2017 it would have been regarded as equally criminal.
For what it’s worth, the policy of shooting looters in unconstitutional.
As the legal scholar Orin Kerr noted, “Actually following a policy of ‘when the looting starts, the shooting starts’ would violate the 4th Amendment, for starters.”
He’s right. Tennessee v. Garner.
That case originated in Memphis, where two police officers, including Elton Hymon, were dispatched to catch a prowler. In the backyard of a house, Hymon saw a suspect he judged to be 17 or 18 run to a back fence. “Halt,” he said, “police.” The suspect tried to climb over the fence to escape. Hymon shot him in the back of the head and recovered a purse with $10 in it. He later cited a Tennessee statute that said, “If, after notice of the intention to arrest the defendant, he either flee or forcibly resist, the officer may use all the necessary means to effect the arrest.”
The Supreme Court’s holding in the 1985 case sets forth a different standard:
The use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable. It is not better that all felony suspects die than that they escape. Where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so. It is no doubt unfortunate when a suspect who is in sight escapes, but the fact that the police arrive a little late or are a little slower afoot does not always justify killing the suspect. A police officer may not seize an unarmed, non-dangerous suspect by shooting him dead. The Tennessee statute is unconstitutional insofar as it authorizes the use of deadly force against such fleeing suspects.
That is the law of the land.
The decision goes on to note that:
where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force. Thus, if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given.
More succinctly: Cops can’t just shoot someone looting gadgets from a Target or whiskey from a liquor store.
Trump swore to protect and defend the Constitution. He just violated that oath. When he wrote “when the looting starts, the shooting starts,” he implicitly urged law enforcement to adopt an approach that would transgress the Constitution, violate Fourth Amendment rights, and cause unlawful deaths. Rioting is abhorrent. Trump’s incendiary call for illegal acts is more likely to fuel than stop it––especially if any police act on his irresponsible words.
But I digress. Back to Twitter’s warning.
This comes a two days after Twitter appended a “get the facts” notice to a Trump tweet about mail-in ballots…
… and one day after Trump threatened to revoke Section 230 of the Communications Decency Act which gives social media platforms immunity from lawsuits for content posted by users.
“Today, I am signing an Executive Order to protect and uphold the free speech and rights of the American people.” pic.twitter.com/agTIJ2KR6C— The White House (@WhiteHouse) May 28, 2020
Note that Trump explicitly tied his executive order to his displeasure with the speech of Twitter in fact-checking his tweets:
Government action in retaliation for upsetting political speech. That is core First Amendment activity and a blatant constitutional violation.
Can Twitter be accountable for any defamation that appears in their fact checks? Sure. Does the fact that they edit Trump’s tweets to include a link to a fact check mean that they are now a “publisher” for all purposes, subject to lawsuits by Trump or any Twitter user because their “status” as a “publisher” has gone poof? No. This appears to be the wet dream of “conservatives” eager to regulate speech they don’t like as long as it appears on a social media platform, but it’s no more legally accurate than any other wet dream they might have.
I know you see this everywhere — and now Bill Barr is saying it (which ought to be a clue that it’s dishonest) — but don’t take my word for it. The Electronic Frontier Foundation has a useful page with some guidelines that might help educate you on the topic:
Can my commenters sue me for editing or deleting their comments on my blog?
Generally no, if you are not the government. Section 230 protect a blog host from liability for “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.” This would include editing or deleting posts you consider objectionable, even if those posts would be protected by the First Amendment against government censorship.
Sweet, I can edit the comments on my blog to change the meaning and make commenters I don’t like seem like crazed defamers.
Not so fast. As noted above, Section 230 protects actions taken in good faith, and you may be liable for new information you create. The ability to edit comments is strongly protected, but you should not abuse that power.
Here’s a piece by Eugene Volokh, a First Amendment expert who I rarely agree with, saying the same thing:
Under current law, Twitter, Facebook, and the like are immune as platforms, regardless of whether they edit (including in a politicized way). Like it or not, but this was a deliberate decision by Congress. You might prefer an “if you restrict your users’ speech, you become liable for the speech you allow” model. Indeed, that was the model accepted by the court in Stratton Oakmont. But Congress rejected this model, and that rejection stands so long as § 230 remains in its current form.
In response to this morning’s Twitter admonishment, Trump went on a rampage, doubling down on his Section 230 repeal non-starter:
REVOKE 230!— Donald J. Trump (@realDonaldTrump) May 29, 2020
Trumpists want to be able to lie and not get called out for it. And they make themselves the victims.
Here’s an excellent Twitter exchange:
In the same event where the president said Twitter is inappropriately cracking down on free speech, he says he would be willing to shut Twitter down if he could.— Maggie Haberman (@maggieNYT) May 28, 2020
He can’t. https://t.co/yyl0MxY1LM— Jake Tapper (@jaketapper) May 28, 2020
Jake, CNN can be sued for defamation. Why should Twitter be immune? https://t.co/ikyFGzqBAy— Ted Cruz (@tedcruz) May 29, 2020
But this is false. Twitter is immune from being sued for things that *third parties* say on its website; Twitter is not immune from being sued for things *Twitter* says. This is also true for CNN, which can be sued for its speech, but not its commenters’. https://t.co/yIz9YtTwwx— Charles C. W. Cooke (@charlescwcooke) May 29, 2020
No, it's not wrong. If CNN has a comments section, CNN is not liable for any defamation spread by its commenters. The law applies equally to it as to Twitter.— Charles C. W. Cooke (@charlescwcooke) May 29, 2020
Ok, Charles, you want a legal debate. Cool.— Ted Cruz (@tedcruz) May 29, 2020
If you (3rd Party) write an op-ed in NYT & it’s defamatory, NYT can be sued.
If you post identical defamatory op-ed on Twitter or FB, they can’t be sued—that’s sec 230.
Congress did that bc they were “neutral.” Now, they censor. https://t.co/RSoyqjhSj6
Moreover, the NYT is permitted to delete your comments as it sees fit—without losing the liability shield that attached to them. If it responds to them, or flags them, it is liable for its own words, but not for the third party's. This is also true of Twitter. (2)— Charles C. W. Cooke (@charlescwcooke) May 29, 2020
What you are doing here, @tedcruz, is similar to what Hillary Clinton does when she says that the PLCAA prevents gun manufacturers from being sued per se. It does not. It prevents them from being sued for the unapproved actions of third parties. That's Section 230, too. (4/4)— Charles C. W. Cooke (@charlescwcooke) May 29, 2020
(Also, Cruz says that "Congress did that because they were 'neutral.'" This isn't true. Section 230 applies to National Review as equally as to The Nation. The purveyor does not have to be "neutral"; the question centers on the sort of speech, not its content.)— Charles C. W. Cooke (@charlescwcooke) May 29, 2020
Interesting theory, but false. All NYT has to do to be liable is make the editorial judgment to publish. The rest that you list (commissioning, editing, etc.) are not required.— Ted Cruz (@tedcruz) May 29, 2020
Big Tech used to be neutral, allowing free speech. Now, they shadow ban & decide what to publish. https://t.co/jkMbMlW0qf
3/x More statutory text:— Ted Cruz (@tedcruz) May 29, 2020
“It is the policy of the United States…to preserve the vibrant and competitive FREE MARKET that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation.”
The attempt to retcon a vague, prefatory desire for a "free market" and "diverse" internet, "unfettered by Federal or State regulation," into a legal mandate that all websites be "neutral" or lose government protection is a silly one, and I suspect that Cruz knows it. (2/2)— Charles C. W. Cooke (@charlescwcooke) May 29, 2020
Yup. Cooke wins. But that hasn’t deterred Cruz:
Speaking of other Minneapolis riot-related First Amendment suppression, look at what else happened this morning:
A CNN reporter & his production team were arrested this morning in Minneapolis for doing their jobs, despite identifying themselves – a clear violation of their First Amendment rights. The authorities in Minnesota, incl. the Governor, must release the 3 CNN employees immediately.— CNN Communications (@CNNPR) May 29, 2020
If this is the statement when everyone can see the truth live on CNN for themselves, what happens when the camera is off? https://t.co/MyWtL8rhT4— Laura Jarrett (@LauraAJarrett) May 29, 2020
It’s not even noon yet.
Oh, and we’re still in the midst of a global pandemic.