January 11, 2021 11.47 am

Barry Turner: Just who — if anyone — has free expression and the moral high ground?

Hypocrisy as government didn’t act against Trump

As the United States Congress gets ready to impeach the President for the second time in his first and only term in public office, the liberal media is, all of a sudden full of silly debates about the decision of Facebook, Amazon and Google to prohibit Donald Trump from broadcasting his hate-filled pronouncements that last Wednesday resulted in an incursion into the very seat of the United States government.

Now all of a sudden the danger is an attack on free expression. The hypocrisy is breath-taking! They themselves have been calling, almost since the day of Trump’s inauguration for his tweets and online conspiracy filled rants to be controlled.

It is also astonishing that those who have finally blocked this rabble rousing incitement, albeit rather late and now Trump is a lame duck, are now the target for criticism for doing so.

On a third note it should not have been necessary for Mark Zuckerberg of Facebook and Jack Dorsey of Twitter to have made these decisions, the US government and its law enforcement officers should have done this a long time ago.

Under the imminent lawless action test determined in Brandenburg v. Ohio, 395 U.S. 444 (1969) speech is not protected by the 1st Amendment if the speaker intends to incite a violation of the law that is both imminent and likely creates a clear and present danger of such incitement.

Trump egged on his supporters to invade the Capitol building with tragic consequences, knowing that such consequences were likely. It was not the first time his inflammatory language had led to circumstances where people were killed and seriously injured, and following the outrage, not the first time he had expressed sympathy for the actions and justification for what had happened.

So now the press is complaining that the likes of Dorsey and Zuckerberg have too much power to censor, as if they themselves have not controlled the information we get to read for literally centuries.

They talk of the dangers of too much power in the hands of private companies and a few billionaires, as if the world’s leading press platforms were publicly owned civic services of some form of democratic co-operative accessible to and accountable to all.

Could it be with the imminent departure of Trump, with undoubtedly more drama and tragedy to come, that the media needs a new set of bogeymen to replace him. For over four years now the press and media have told us that Trump is a threat to democracy. Once he has gone they will need a new one and Facebook, Twitter, Amazon and Google fit the frame nicely.

Nature we are told abhors a vacuum. So it appears does the press. Donald Trump abused the right to free expression and made the Constitution of the United States itself a laughing stock.

The government and its law enforcement arms made no effort to curtail the caustic and dangerous rhetoric coming from Trump and his allies, and it is very true that the social media platforms themselves used the Trump MAGA cult as a very profitable source of revenue.

It is hardly surprising, even if it is hypocritical, that the tech giants and the social media now take the opportunity to do so. So did the regular press and media, and now they want to protect free speech against the tech giants and social media censorship.

The new Democrat administration with its control of the House, Senate and White House now need to really define and determine free expression for what it is and what it is for.

The legendary American judge Oliver Wendell Holmes did this in 1919 when he declared in Schenck v. United States, 249 U.S. 47 (1919) that no one has the right to shout fire in a crowded theatre if that is meant simply to cause panic.

Donald Trump abused free expression to do just that, and he is rightly prevented from doing so as a result of Wednesday’s riot. It remains disappointing that private for profit companies were the final arbiter of that decision and it may very well be disturbing that they hold so much sway.

If however that is a problem for the government and the judiciary, they can easily fix it. Not by censorship, licencing and regulation, but by acting within the already well established law and constitutional system that is already there.

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Barry Turner is Senior Lecturer in Media Law and Public Administration at the University of Lincoln.