[EL] Twitter EO

[James Bopp Jr]

I think Nate's confusion arises from not understanding either Citizens United or the position of those that support it.

I litigated Citizens United because I believe that corporations and labor unions have the same First Amendment right to free speech as individuals and that their corporate form is not a constitutionally supportable justification to deny them those protections.  The Supreme Court agreed, which restored to corporations the same free speech rights as individuals have, including the right to independently endorse candidates.
However, no person, and now this includes corporations, have a First Amendment right to defame people, with the condition that, if the person is a public figure, the Plaintiff also must prove malice.  Of course, a person is subject to a defamation case if the person "publishes" the defamatory statement.
The import of 230 is to make social media platforms immune from defamation liability, since the original business model was that the platform took no responsibility for the content of the posts and thus were not the "publisher" of the post.
 
Unfortunately, these enormous corporation have now succumbed to liberal demands to assume responsibility for content in numerous ways which is leading to censorship principally directed at conservatives. Thus, the original justification for 230 no longer exists, that they were not publishers, so it should be repealed.
I am sure that Nate thought that there must be some irony here that Citizens-United-loving would want corporations to be free to defame people without liability.  That is just not so.  The New York Times is a corporation and it is not free to do this, nor should Facebook.
The real irony is that the left expresses unrelenting hatred of corporations and Citizens United while at the same time demanding that the largest corporations in the world with the most impact of public communication should engage in censorship of those they don't like and should get special legal protection in order to do it.

This position is irrational, in my opinion.  Jim
In a message dated 5/28/2020 1:55:48 PM US Eastern Standard Time, npersily at law.stanford.edu writes:
Apologies for being obtuse:   My point about Citizens United was that if you believe that corporations have an unfettered constitutional right to spend unlimited amounts on campaign advertising, I would think that right would also extend to publicizing factchecks about politicians, as well, without running the risk of legal sanction.   

----------------

Nate Persily

James B. McClatchy Professor of Law
Stanford Law School
559 Nathan Abbott Way
Stanford, CA 94305-8610
(917) 570-3223
npersily at stanford.edu

www.persily.com

On Thu, May 28, 2020 at 6:14 AM Sean Parnell <sean at impactpolicymanagement.com> wrote:

Not entirely sure why the views of defenders of Citizens United are sought, but here goes (with the acknowledgement that, not possessing a law degree, my views should probably not be mistaken as quality legal analysis): it’s stupid. The one redeeming quality I find in the EO is that it is not nearly so badly/incoherently written as the EO from a few years back “repealing” the so-called Johnson Amendment, so props for that.

 

Sean Parnell

 

From: Law-election <law-election-bounces at department-lists.uci.edu> On Behalf Of Nate Persily
Sent: Thursday, May 28, 2020 12:38 AM
To: Rick Hasen <rhasen at law.uci.edu>
Cc: Election Law Listserv <law-election at uci.edu>
Subject: [EL] Twitter EO

 

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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