POTUS & Porn, POTUS & Lynching…: Canceling Speech With No Remedy?

President Donald Trump is gradually being de-platformed from technology. Social media companies have permanently suspended him. His email provider cancelled his account. A sizeable bipartisan majority of the country rejoices. We have banished the ogre from committing further perversions on our ears.

The ostensible reason for banning President Trump from technology is that he is using it to incite violence or that he may imminently do so in the future. Some have suggested that the president and his supporters should be criminally charged for what they have said in the lead-up to the Confederate States of America finally raising its flag in the United States capitol on January 6, 2021.

I happen to have a modest familiarity with the United States Supreme Court’s incitement exception to the First Amendment, and I can tell you that President Trump did not even approach the bar for being criminally charged for what he has said concerning the 2020 presidential election. Under Brandenburg v. Ohio, speech loses its First Amendment protection when it “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”

While this definition is not particularly helpful, Brandenburg‘s facts and the facts of Hess v. Indiana – the only other case where the Supreme Court has opined on incitement – shed some light on what conduct may be protected even if it offends the morbidly sensitive. In Brandenburg, the Supreme Court vacated a Ku Klux Klan leader’s conviction for delivering a speech calling for “revegengeance” against “Niggers,” “Jews,” and their supporters, and for the forced expulsion of blacks to Africa and Jews to Israel. In Hess, the Supreme Court vacated the conviction of a protestor who screamed “We’ll take the fucking street later” at a sheriff who was lawfully clearing protestors off a street.

Both Brandenburg and Hess turned on the fact that the speakers did not direct their words to inciting imminent lawless action. President Trump did not even approach calling for violence – a necessary prerequisite to a criminal conviction.

Technology companies, however, have held him responsible for the sins of others that he has specifically advocated against. That is a dangerous precedent. Here’s how it would work criminally if that standard was adopted there too. You do not like this blog post. You share it on your Facebook page with the statement that “Cameron Atkinson is Lucifer Incarnate and will plunge the world into evil.” Some maniac sees your post and makes an attempt to kill me. You have incited his attempt on my life and are charged for it.

Suddenly, the standard doesn’t sound so fair any more. The criminal law fortunately does not work that way. To be charged, you’d need to say something like “Cameron Atkinson is Lucifer Incarnate and he should be killed as soon as possible before he plunges the world into evil.”

Tech companies are not bound to the criminal law standard though under the current state of American law. They are also immune to many forms of suit for their “editorial” decisions under Section 230 of the Communications Decency Act. American law, however, is largely devoid of any definite consensus on whether users of a technology company’s services can sue for breach of contract based on the company’s double standards in enforcing its policies.

The result is that the President of the United States can be banned from numerous tech companies for because of the actions of third parties that he expressly discouraged and Pornhub – the United States’ largest pornography provider – can maintain its access to those same services when it published numerous videos containing child pornography to the world for months at a time despite fervent pleas for it to remove those videos. Yes, that’s right. Pornhub still has access to Facebook, Twitter, and Instagram after it published child porn to the entire world. The President of the United States doesn’t.

The double standard does not stop. On Twitter, one of the trending topics promoted by Twitter was “Hang Pence.” The trending topic was used by people of all political affiliations. Twitter took no steps to stop that language, yet it banned the President of the United States who did not come close to utter an advocacy for violence.

In other words, tech companies have become so emboldened in the immunity that Congress and the courts have given them that they are not even trying to hide their hypocrisy any more. Emboldened tech companies now wield more power over the American people than its government does because they can control the American people’s mass expression of ideas with no restrictions.

We designed a Constitution to protect us against our government. We then sold our liberties through our government to interested corporations who have their own self-righteous agendas to push.

I sued Facebook for its double standard. A judge in the Northern District of California didn’t see the law the same way that I did. I will be asking the Ninth Circuit to consider my arguments including a breach of contract claim for that double standard. I would welcome an amicus brief from Donald J. Trump or any one else who wants to chime in against tech censorship.