Montana Senator Thinks The Third Time Is The Charm For His Anti-Flag Burning Amendment

from the stupid-on-repeat dept

Far too many government officials think it would be a good idea to lock up people for exercising their First Amendment rights. There's a lot of stuff certain politicians (including our former president!) and their supporters think should be criminal acts, but keep running head-on into the Constitution and its protection of speech.

At the top of this list is flag burning. This used to be a crime, but the Supreme Court said desecrating the flag was actually a form of criticism -- one fully protected by the First Amendment. That hasn't stopped a bunch of legislators from trying to make flag burning a crime. "Trying" is the key word here. The Supreme Court's Texas v. Johnson decision makes it pretty much impossible for flag burning bans to ever be considered constitutional.

But what if the Constitution could be changed? That's Montana Senator Steve Daine's idea. And it's one of his only ideas. Daines wants to amend the Constitution to make flag burning illegal. It's something he's wanted to do for several years now.

Daines first raised this idea in 2017. He floated it again in 2019. Those efforts went nowhere. Two years have passed and Daines is trying it again.

GOP Sen. Steve Daines (Mont.) on Monday reintroduced a constitutional amendment to bar the "physical desecration of the American flag."

“The American flag is a symbol of liberty and a beacon of hope. It represents the ideals that our nation was built upon and for decades, brave men and women have carried its colors into battle to defend the United States of America,” the Montana senator said in a statement released on Flag Day.

“The Stars and Stripes are a representation of freedom. We must always protect and respect the American flag,” he added.

Hey, Steve, the flag also represents the ideals of this country and the freedoms the government considers to be inalienable. One of those is the First Amendment, which strongly protects criticism of the government, including (but not limited to) setting the Stars and Stripes on fire.

The entirety of Daines' proposed amendment is this: the removal of Congress' gloves, allowing it to pummel the First Amendment in this specific way:

The Congress shall have power to prohibit the physical desecration of the flag of the United States.

Daines isn't alone in this stupidity. The amendment has five co-sponsors: Marsha Blackburn, Mike Crapo, Shelly Capito, Kevin Cramer, and Pat Toomey. These are the six people who think the First Amendment should cover less than it already does and are willing to amend the Constitution to do it.

Let's say everyone goes straight fucking insane and this amendment is appended to the Constitution. That still won't make flag burning illegal. Congress will have to pass a law banning flag burning and get it signed by the President. Good luck. If Daines couldn't get this done in 2017 and 2019 with the then-leader of the free world agitating for jailing flag burners, it's not going to get done when there's someone a bit more rational holding the presidential pen set.

Filed Under: 1st amendment, flag burning, free speech, steve daines

Section 230 Continues To Not Mean Whatever You Want It To

from the 230-truthers dept

In the annals of Section 230 crackpottery, the "publisher or platform" canard reigns supreme. Like the worst (or perhaps best) game of "Broken Telephone" ever, it has morphed into a series of increasingly bizarre theories about a law that is actually fairly short and straightforward.

Last week, this fanciful yarn took an even more absurd turn. It began on Friday, when Facebook began to roll out test warnings about extremism as part of its anti-radicalization efforts and in response to the Christchurch Call for Action campaign. There appears to be two iterations of the warnings: one asks the user whether they are concerned that someone they know is becoming an extremist, a second warns the user that they may have been exposed to extremist content (allegedly appearing while users were viewing specific types of content). Both warnings provide a link to support resources to combat extremism.

As it is wont to do, the Internet quickly erupted into an indiscriminate furor. Talking heads and politicians raged about the "Orwellian environment" and "snitch squads" that Facebook is creating, and the conservative media eagerly lapped it up (ignoring, of course, that nobody is forced to use Facebook or to pay any credence to their warnings). That's not to say there is no valid criticism to be lodged—surely the propriety of the warnings and definition of "extremist" are matters on which people can reasonably disagree, and those are conversations worth having in a reasoned fashion.

But then someone went there. It was inevitable, really, given that Section 230 has become a proxy for "things social media platforms do that I don't like." And Section 230 Truthers never miss an opportunity to make something wrongly about the target of their eternal ire.

Notorious COVID (and all-around) crank Alex Berenson led the charge, boosted by the usual media crowd, tweeting:

Yeah, I'm becoming an extremist. An anti-@Facebook extremist. "Confidential help is available?" Who do they think they are?

Either they're a publisher and a political platform legally liable for every bit of content they host, or they need to STAY OUT OF THE WAY. Zuck's choice.

That is, to be diplomatic, deeply stupid.

Like decent toilet paper, the inanity of this tweet is two-ply. First (setting aside the question of what exactly "political platform" means) is the mundane reality, explained ad nauseum, that Facebook needs not—in fact—make any such choice. It bears repeating: Section 230 provides that websites are not liable as the publishers of content provided by others. There are no conditions or requirements. Period. End of story. The law would make no sense otherwise; the entire point of Section 230 was to facilitate the ability for websites to engage in "publisher" activities (including deciding what content to carry or not carry) without the threat of innumerable lawsuits over every piece of content on their sites.

Of course, that's exactly what grinds 230 Truthers' gears: they don't like that platforms can choose which content to permit or prohibit. But social media platforms would have a First Amendment right to do that even without Section 230, and thus what the anti-230 crowd really wants is to punish platforms for exercising their own First Amendment rights.

Which leads us to the second ply, where Berenson gives up this game in spectacular fashion because Section 230 isn't even relevant. Facebook's warnings are its own content, which is not immunized under Section 230 in the first place. Facebook is liable as the publisher of content it creates; always has been, always will be. If Facebook's extremism warnings were somehow actionable (as rather nonspecific opinions, they aren't) it would be forced to defend a lawsuit on the merits.

It simply makes no sense at all. Even if you (very wrongly) believe that Section 230 requires platforms to host all content without picking and choosing, that is entirely unrelated to a platform's right to use its own speech to criticize or distance itself from certain content. And that's all Facebook did. It didn't remove or restrict access to content; Facebook simply added its own additional speech. If there's a more explicit admission that the real goal is to curtail platforms' own expression, it's difficult to think of.

Punishing speakers for their expression is, of course, anathema to the First Amendment. In halting enforcement of Florida's new social media law, U.S. District Judge Robert Hinkle noted that Florida would prohibit platforms from appending their own speech to users' posts, compounding the statute's constitutional infirmities. Conditioning Section 230 immunity on a platform's forfeiture of its completely separate First Amendment right to use its own voice would fare no better.

Suppose Democrats introduced a bill that conditioned the immunity provided to the firearms industry by the PLCAA on industry members refraining from speaking out out or lobbying against gun control legislation. Inevitably, and without a hint of irony, many of the people urging fundamentally the same thing for social media platforms would find newfound outrage at the brazen attack on First Amendment rights.

At the end of the day, despite all their protestations, what people like Berenson want is not freedom of speech. Quite the opposite. They want to dragoon private websites into service as their free publishing house and silence any criticism by those websites with the threat of financial ruin. It's hard to think of anything less free speech-y, or intellectually honest, than that.

Ari Cohn is Free Speech Counsel at TechFreedom

Filed Under: 1st amendment, alex berenson, extremism, fact checking, free speech, section 230, speech
Companies: facebook