“The potential abuse of speech rights in the future cannot justify
the blanket prohibition imposed here on … speech before it has even been uttered.”
Ohio Supreme Court on blanket judicial ban against a defendant’s accessing social media.
The First Amendment is both controversial and essential. The sections on free speech and free assembly have long since been determined to have limits. The amendment, extended to states via the Fourteenth Amendment, applies to government actions… and to companies open to the general public (like amusement parks) which are viewed in parallel capacity. You cannot falsely yell “fire” in a crowded theater, with certain newsworthy and public figure exceptions you can be held liable in a civil court action for defamation or invasion of privacy, you cannot gather just anywhere you feel like it and certain criminal actions can result in judicial gag orders on the participants or severe restrictions on criminal defendants. It is with this latter ability to restrict speech that draws my focus today.
Today, we have a “free speech” issue that no one could possibly have foreseen. The merger of social media, foreign disinformation and conspiracy theories aimed at sedition have slammed into a First Amendment wall. The “safe harbor” accorded social media companies in policing postings under Section 230 of the Communications Decency Act of 1996 has come under fire from conservatives – claiming conservative voices are disproportionately suppressed – and liberals – who believe right-wing conspiracy theorists are using social media to press a white supremacist agenda. For more details, see my January 12th Should We Section 8 Section 230 blog.
But our democracy is being assaulted, literally as the January 6th attack on the Capitol illustrates, and in a constant undermining of democracy via clear lies – including the Big Lie of a fraudulent election but increasingly from the disinformation and exhortation to violence of absurd conspiracy theories where millions of adherents feed on each other’s communications a living proof of those misguided beliefs – which feed like cancer, accelerated by zealots who mistakenly believe they are patriots.
When convicted pedophiles are banned from accessing their tool to lure underaged sex partners – the Internet – nobody really blinks an eye. Even when a judge orders a pre-trial defendant accused of such crimes to stay off the Internet, we all understand. But where is the line between free speech and exhortation of violence based on inane conspiracy theories where a judge can pull such proselytizers off the Internet? Pretrial orders? Can it be framed by the court as a condition of being released on bail or “own recognizance” pending trial?
As we shall see, it is happening as evidenced in the federal cases now pending against hundreds of people arrested in connection with the January 6th attack on the Capitol. Evan Halper, writing for the March 30th Los Angeles Times, looks at the issue through one case filed against a Los Angeles resident: “Beverly Hills aesthetician and eyelash stylist Gina Bisignano [pictured above] was so present on social media that the federal criminal complaint against her practically wrote itself.
“The story of a 52-year-old salon owner who charted a dark path of disinformation to the U.S. Capitol on Jan. 6, where she allegedly grabbed a bullhorn and urged rioters to take up weapons, is backed by one social media post after another embedded in the Department of Justice filing.
“There is Bisignano in her Louis Vuitton sweater, filmed in front of the Capitol talking about her business and hometown as the riot was getting underway. There she is again, addressing rioters with a rant about globalists, George Soros and stolen votes. And again, calling for weapons and gas masks moments before a rioter attacks an officer with what appears to be a baseball bat.
“Now, Bisignano has gone silent online. She is not allowed on the internet. Not because social media platforms banned her, but because a federal judge did. If Bisignano goes online while awaiting trial, she risks being jailed.
“Judges have long been reluctant to ban anyone from the internet, a restriction that essentially cuts a person off from much of modern society and has been reserved mostly for accused and convicted pedophiles. But as toxic disinformation becomes an increasingly dangerous threat, driving domestic terrorism and violence, the courts are facing vexing new questions around how often and under what circumstances those accused of taking part should be taken offline altogether.
“‘We are headed into uncharted waters,’ said Nina Jankowicz, a fellow at the Wilson Center, a Washington think tank, where she studies disinformation. ‘Given the threats we see continuing and the heightened alerts, it is clear things are not dissipating.... That is why judges are making these calls.’
“‘In the case of Bisignano, the ban might have been an easy one for the judge to make. The defendant asked for it — her lawyer saw it as one of the few bargaining chips the Capitol riot suspect from California had to stay out of jail, for now… ‘If it weren’t for social media, she wouldn’t even be a defendant,’ said Bisignano’s attorney, Charles Peruto. ‘She knows that is what got her jammed in the first place.’
“Yet attorneys for others accused of taking part in the attack on the Capitol are aggressively fighting the restrictions, and judges are struggling with how far to take them… Prosecutors have moved to bar at least five defendants in the Capitol insurrection from going on social media platforms or even going online at all, according to a review of court filings by The Times. Those defendants are awaiting trial dates that will be months away as the Justice Department grapples with one of the most complex and all-consuming investigations in its history.”
Is the very freedom that our Constitution was designed to protect the very basis for the end of that democratic form of government? What are the legal limits between preserving the democracy and enabling the freest of free speech? We will struggle with this issue for the foreseeable future. Is this a Republican vs Democrat issue or something so much bigger?
I’m Peter Dekom, and we have come to what is perhaps is an existential conflict between our form of government and the tools it provides to those who wish to overthrow it.
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