[EL] Twitter EO

Thu May 28 04:51:33 PDT 2020

In contemplating Trump’s actions over the last 3.5 years, I have found a passage from Larry Diamond’s outstanding recent book, Ill Winds: Saving Democracy from Russian Rage, Chinese Ambition, and American Complacency (2019), extremely useful in guiding my thinking.  In this passage, Diamond, who is a democratic comparativist, lays out a kind of “authoritarian’s playbook,” gathered observationally from the strategies of illiberal power consolidation pursued by authoritarian leaders in Hungary, Turkey, Poland, Venezuela, and many other places.  You will note that the new EO fits comfortably within item 5 in Diamond’s checklist, which I have reproduced below (I’ve taken this edited version from a federalism article I’m working on examining liberalism and illiberalism at the state level):

1.         Begin to demonize the opposition as illegitimate and unpatriotic, part of the discredited or disloyal establishment, hopelessly out of touch with the real people.
2.         Undermine the independence of the courts . . . by purging judges and replacing them with political loyalists, or by restructuring the judiciary so it can be packed and placed under partisan control.
3.         Attack the independence of the media, by denouncing them as partisan fabulists, mobilizing public fervor against them, regulating them[, and] finally taking over their ownership . . . .
4.         Gain control of any public broadcasting, politicize it, and make it an instrument of ruling party propaganda.
5.         Impose stricter control of the internet, in the name of morality, security, or counterterrorism, thus further chilling free speech and the freedom to organize.
6.         Subdue other elements of civil society – civic associations, universities, and especially anticorruption and human rights groups – by painting them as part of the arrogant, effete, selfish elite that have betrayed the people and the country.  Make university professors afraid to criticize the government in their writings and classrooms.  Render student groups liable to prosecution for peaceful protest.  Create new, fake civic organizations that will be faithful to the populist leader and party.
7.         Intimidate the business community into ending its support for political opposition.  Threaten to unleash tax and regulatory retribution on businesses that fund opposition parties and candidates . . . .
8.         Enrich a new class of crony capitalists by steering state contracts, credit flows, licenses, and other lucre to the family, friends, and allies of the ruler and his clique.
9.         Assert political control over the civil service and the security apparatus.  Start referring to professional civil servants and military officers loyal to the democratic constitution as members of a “deep state.”  Purge them. . . .
10.       Gerrymander districts and rig the electoral rules to make it nearly impossible for opposition parties to win the next election.  Ensure that the ruling party can retain its grip on power even if it fails to win most of the vote.
11.       Gain control over the body that runs the elections, to further tilt the electoral playing field and institutionalize de facto authoritarian rule.
12.       Repeat steps 1 to 11, ever more vigorously, deepening citizens’ fear of opposing or criticizing the new political order and silencing all forms of resistance.

Sadly, one can go down this checklist and easily see how Trump has checked many of the boxes.

Jim

___________________________
James A. Gardner
Bridget and Thomas Black SUNY Distinguished Professor of Law
Research Professor of Political Science
University at Buffalo School of Law
The State University of New York
Room 514, O'Brian Hall
Buffalo, NY 14260-1100
voice: 716-645-3607
fax: 716-645-2064
e-mail: jgard at buffalo.edu<mailto:jgard at buffalo.edu>
www.law.buffalo.edu<http://www.law.buffalo.edu/>
Papers at http://ssrn.com/author=40126

From: Law-election <law-election-bounces at department-lists.uci.edu> On Behalf Of Marty Lederman
Sent: Thursday, May 28, 2020 6:02 AM
To: Nate Persily <npersily at law.stanford.edu>
Cc: Election Law Listserv <law-election at uci.edu>
Subject: Re: [EL] Twitter EO

Breathtaking but of course it mostly amounts to directing Commerce to petition the FCC (within 30 days) for a proposed reg to "clarify" 230(c)(2)(A) law.  Even if Wilbur Ross does so, it's hard to imagine (or it was hard to imagine, anyway), the FCC doing anything with it.

In other words, it is (not surprisingly) a political document, intended to rile up the base.

On Thu, May 28, 2020 at 12:41 AM Nate Persily <npersily at law.stanford.edu<mailto:npersily at law.stanford.edu>> wrote:
Attached is the draft of the Executive Order regarding removal of CDA 230 liability for Twitter and other internet platforms as well as encouragement of investigations of the Silicon Valley platforms.  Gotta say, this is truly breathtaking.   Eager to hear reactions from defenders of Citizens United on this.
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Marty Lederman
Georgetown University Law Center
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