How to Save American Democracy

The Government is Constitutionally Mandated to Protect its Citizens and Democracy from Online Disinformation 

Online disinformation, which is used as part of political warfare to destabilize the governments of foreign countries, is undoubtedly a threat to the Constitution as well as to democracy; thus, the Government, through the Executive power of the Presidency, has a constitutional mandate to respond.

         The duty of the government is to protect domestic security. Implicit in that duty is the power to protect our Government against those who would subvert or overthrow it by unlawful means.  We cannot maintain our independence or protect our citizens against oppression or continue to be free, without such power being delegated to some authority, and one of the chief duties of citizenship in a time of great emergency like this is to recognize such authority. One of the essential and underlying objects of the union which formed this nation was to create a lawful authority whose decision and action upon questions of this kind should bind all the states and all the people of every state. Before our peace and liberty were threatened, everyone had a right to discuss in private and in public the question whether the United States should prepare for her defense. Everyone had a right to argue that there was no sufficient cause for alarm; that it would be wiser to wait until the aggressors actually were here. Everyone holding such views had the right to influence public opinion and, if possible, affect the action of the President and the Congress to whom the people of the country by their Constitution have entrusted the power to determine questions of this kind. But, unless the Government safeguards its own capacity to function and to preserve the security of its people, society itself could become so disordered that all rights and liberties would be endangered. Civil liberties, as guaranteed by the Constitution, imply the existence of an organized society maintaining public order without which liberty itself would be lost in the excesses of unrestrained abuses. An informed citizenry, is vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed. If there are in this country naturalized citizens who are taking part in obstruction of our government in the preparation for defense, they are false to their oaths. But, with respect to the activities of foreign powers, within or without this country, surveillances are necessary to protect the nation from attempts of domestic organizations to attack and subvert the existing structure of Government. 

Almost one-hundred years ago, the world at large was engaged in one of the deadliest conflicts in human history, World War I. It is in this context that the case, Abrams v. United States was brought to the Supreme Court in 1919. In Abrams, the titular plaintiff Jacob Abrams and five other plaintiffs were convicted of conspiring to violate the Espionage Act. All five of the defendants were of Russian descent but had resided in the United States for at least a period of five years; however, none of the defendants were naturalized citizens nor had they applied for naturalization. Three of the counts that the plaintiffs were charged with violating under the Espionage Act were: (1) unlawfully uttering, printing, writing and publishing disloyal, scurrilous and abusive language about the form of government of the United States ; (2) ‘intendING to bring the form of government of the United States into contempt, scorn, contumely, and disrepute;’ and [using] (3) language ‘intended to incite, provoke and encourage resistance to the United States in said war.” At trial, the defendants argued that that the acts charged against them were not unlawful because their right to free speech as well as press  was protected and guaranteed  by the First Amendment to the Constitution of the United States. However, when the Court examined the actual language within the leaflets the defendants had circulated, the Court rejected this argument. The Court, in describing the defendants as “alien anarchists” believed that resentment towards the American government, caused by the arrival of American troops in Russia as part of a military operation against Germany, was the primary motivation for the defendant’s actions. Yet, because of the explicit call to arms, and calls for revolution in the midst of wartime, the Court viewed the defendant’s actions as propaganda, plainly meant to excite disaffection, sedition, riots and revolution for the purpose of embarrassment and military defeat. The Court did note that there might be a distinction between language applied to the form of our government, rather than actual results, but declined to address these considerations due to the obviously plain language within the fliers. In holding against the defendants, the court cited to precedent created in another case brought to them in 1919 Schenk v. United States. In Schenk the court held that freedom of speech can be limited during wartime in order to prevent expressions that would “create a clear and present danger that . . . will bring about substantive evils that Congress has a right to prevent.” During their analysis in Abrams, the Court’s important considerations in affirming the defendant’s convictions were the defendants foreign nationalities as well as the evocative and inciting nature of the propaganda.

Although the world is not engaged in a worldwide physical military conflict like it was 100 years ago in Abrams, there is no doubt that warfare has changed and evolved. Now, warfare,  in addition to occurring in the sky, on the land and in the sea has entered a new battlefield; the internet. The dissemination of online disinformation is a military tactic effected by foreign agents in order to destabilize the government. Just like the Defendants in Abrams, it is clear that in today’s world, online disinformation is being disseminated for the exact same purposes that the Court in Abrams found to be so reprehensible. The interference of foreign agents in regards to the operation and structure of the American government is the exact same scenario Americans today find themselves faced with, exactly like Americans dealt with 100 years ago in Abrams; they even happened to be Russian! Additionally, because the purpose of spreading online disinformation is to directly attack the form of the government, this action is a direct mirror of the actions the Court found the defendants’ in Abrams guilty of engaging in. Online disinformation today has had the effect of casting doubt on the political process, in regards to electoral fraud and eroding faith in the government that it is acting in the best interests of the American public. This fact is clearly evidenced by the massive protests that occurred in 2016 after Donald Trump was elected President and when it was revealed that Russia interfered in our electoral process, as well as the IRA’s stated purpose of disseminating online disinformation, “ to provoke and amplify political and social discord in the United States.” The IRA’s campaign to undermine the United States was so successful that the Mueller Report became a necessary proceeding in order to restore the public’s faith in the electoral process, but the validity of it is still challenged today by a non-significant portion of the public; the damage online disinformation has done to American society is already significant. The Abrams Court, 100 years ago, recognized the huge amount of damage that spreading lies and falsehoods about the Government could inflict, yet the Government today has failed to respond in any significant way, other than allowing ISPs to manage their own affairs. In Abrams, the defendants were found guilty of violating the Espionage Act, but, here, in today’s world, there is no statute that provides a recourse for a similar act propagated online, with a recognized negative effect similar to what the defendants in Abrams hoped to achieve. Back then, it was clear that spreading lies and misinformation to attack the government was a threat that the Government had to address; and, in fulfilling its duty to the Constitution and American democracy, the Government acted by passing the Espionage Act, as well as criminalizing and regulating those who engaged in this activity. Based on the similarity of the two situations and the presence of the same Constitutional mandates that forced the Government to act, it is clear that our Government today must act with the same swiftness, decisiveness and severity to protect its democracy. Yet, it has failed and is still failing to do so, in a clear dereliction of its Constitutional duty, that it had already recognized over 100 years ago.

The United States government and the President of the United States have failed “to protect the nation from the attempts of organization to attack and subvert the existing structure of the government. However, part of the Government’s failure stems from prior precedent, to policy surrounding the First Amendment.

The First Amendment Protections that Strengthen Section 230 Also Allow the Government to Avoid Fulfilling its Constitutional Duty, Despite the Fact that There are Several Avenues for it to Legally Act.

Section 230 of the Communications Decency Act and the First Amendment protections that strengthen it have effectively allowed the Government to not act on its duty to fight online disinformation, by putting the onus on Big Tech; however, the government’s compelling national security interests in protecting the Constitution and its democracy from attack give it the right as well as the obligation to regulate the spread of online disinformation, in light of the private sector’s lackluster response as well as the way online disinformation is spread.

From within the United States Constitution, The First Amendment states that, “Congress shall make no law [. .  .] abridging the freedom of speech, or of the press.”

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

In the text of Section 230 of the CDA, Congress acknowledged that “(1) The Internet and other interactive computer services offer a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity; (2) The Internet and other interactive computer services have flourished, to the benefit of all Americans, with a minimum of government regulation; and (3) Increasingly Americans are relying on interactive media for a variety of political, educational, cultural, and entertainment services. In accordance with policy of the United States to “preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation,”, Congress promulgated the Good Samaritan provision of Section 230, in Section (c). The Good Samaritan Provision states, in relevant part, that “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider,” and that “No provider or user of an interactive computer service shall be held liable on account of: (1) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or (2)  any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph. 

The First Amendment allows for most speech to be protected and free from regulation; however, in recognizing the outsized role the Internet could play in facilitating the “Marketplace of Ideas” ideal, Congress failed to consider that the “Good Faith” exemption in Section 230 would ultimately harm free speech, more than it would facilitate it. The harm online disinformation causes has already been recognized and identified in the United States; yet, due to Section 230, ISPs and social media networks are free from liability for the part they played in its dissemination. Thus, without the threat of private litigation and the Government’s unwillingness to act, these companies have no incentive to actually work to combat the problem of online disinformation.

Society has the right and civic duty to engage in open, dynamic, rational discourse.These ends are not well served when the government seeks to orchestrate public discussion through content-based mandates. Content-based restrictions on speech have been permitted, as a general matter, only when confined to the few  ‘historic and traditional categories of expression.

         Among these categories are advocacy intended, and likely, to incite imminent lawless action, obscenity, defamation, fighting words, child pornography, fraud, true threats and speech presenting a grave and imminent threat the government has the power to prevent. However, although the First Amendment stands against any “freewheeling authority to declare new categories of speech outside the scope of the First Amendment,” the Court has acknowledged that perhaps there exist some categories of speech that have been historically unprotected, but have not yet been specifically identified or discussed in case law.

Absent from those few categories where the law allows content-based regulation of speech is any general exception to the First Amendment for false statements. This comports with the common understanding that some false statements are inevitable if there is to be an open and vigorous expression of views in public and private conversation, expression the First Amendment seeks to guarantee.

None of this means, that the original culpable party who posts defamatory messages on the internet would escape accountability. While Congress acted to keep government regulation of the Internet to a minimum, it also found it to be the policy of the United States to ensure vigorous enforcement of Federal criminal laws to deter and punish trafficking in obscenity, stalking and harassment by means of computer. Congress made a policy choice, however, not to deter harmful online speech through the separate route of imposing tort liability on companies that serve as intermediaries for other parties' potentially injurious messages.

         The federal government’s loathing to deal with online disinformation was clearly on display in the case PragerU v. Google LLC. PragerU is a self-described “ nonprofit educational and media organization”; their mission is to “provide conservative viewpoints and perspective on public issues that it believes are often overlooked.” PragerU engages with the public by releasing videos through the social media website Youtube. YouTube is one of the most popular social media websites with over 30 million visitors each day, as well as over 1.3 billion active users. In fact, more video content has been uploaded to YouTube than has been created by the major U.S television networks in 30 years. In trying to regulate the vast amount of content that is posted on its website, YouTube promulgated a series of rules called the Terms of Service and community Guidelines. Within these terms, YouTube states that the mission of these rules is “to foster a community where everyone’s voice can be heard.” But, YouTube also reserves the right to restrict or remove content that violates its Terms of Service or is otherwise objectionable to YouTube. PragerU brought suit against YouTube alleging violations of its First Amendment rights because YouTube removed several of PragerU’s videos in addition to demonetizing others, by marking them as violating YouTube’s terms of service. PragerU reasoned that YouTube, although a private entity and indemnified from by the “Good Faith” provisions of Section 230, was acting as a “public forum”, due to its large hosting of content, and thus, subject to government regulations regarding their First Amendment rights to free speech. However, the Court held against PragerU, stating that YouTube was not a state actor and thus, First Amendment protections did not apply. The Court reasoned that just because a private entity has opened up their property for public use, does not automatically implicate the government; the regulation required to turn a private entity into a state actor, like in Marsh, required far more regulation on activity than YouTube had engaged in.

The Court’s consistent holdings in cases similar to PragerU is ironically a far greater threat to free speech then regulation of online disinformation could be because of both a misplaced value on false statements under the First Amendment, which is reflected in the Good Samaritan Protections ISPs enjoy. The purpose of the First Amendment is to allow society to engage in free in open discourse, especially in regards to political discourse. But, in today’s world, most of that discourse occurs over the internet, whether it be on social media or blog posts. However, when the President uses  Twitter, Instagram and Facebook as official government platforms and most, if not all of Congress has some form of social media presence, it is critically important to make sure that all Americans have pure, unfettered access to these message and can contribute their own ideas to the “marketplace of ideas.” Yet, due to online disinformation, 10 million social media users were exposed to false advertisements, purchased by the IRA, to directly spread online disinformation. On Facebook alone, out of 470 accounts, 6 of them were responsible for content that was shared at least 340 million times. This is clearly a direct interference with the marketplace of ideas that the First Amendment seeks to protect and facilitate. It should not be possible for intentionally made false statements, whose purpose it is to destabilize and attack the government, to have any value whatsoever, to deserve protection under the First Amendment; yet, when an issue regarding this content manages to make it to review in federal court, the Court continually insists on citing to private entities rights to engage and host this kind speech, despite the clear harm it brings to the American government. The majority of lawmakers that are concerned with regulation of its citizens First Amendment rights fail to recognize that its citizens rights to Free Speech are already being actively abused and discarded due to their inability to actually participate in an un-poisoned poisoning of marketplace of ideas online. How can citizens engage in an actual exchange of ideas or have their ideas fairly represented, if there is an undue influence working to hide some points of view and promote others at their expense? Furthermore, due to the “Good Samaritan” Section 230 Government actively discourages any kind of private litigation against ISP’s because of  a policy choice to “not deter harmful online speech through the separate route of imposing tort liability on companies that serve as intermediaries for other parties' potentially injurious messages.” Because of the Government’s doesn’t want to stifle innovation by potentially allowing for civil liability, it has sacrificed the ability of its citizens to effectively engage in political discourse; in their view, if ISPs could be sued for content any piece of content its users found to be objectionable, these companies would not be profitable, due to a flood of litigation and legal fees, and deprive the country of the marvel of their technological advancements. On the private side, ISPs will continue to do nothing because they are indemnified against private litigation by Section 230 on one hand and through the First Amendment on the other. This is because ISPs make money by gathering its user’s data and selling their information to advertisers. Online disinformation is profitable for ISPs; when the President of the United states shares a post filled with online disinformation, that post reaches millions if not billions of users, whose data is collected by the ISP and promptly sold to advertisers. ISPs have no duty to protect the First Amendment rights of their users, just like the Court in PragerU held. Even when confronted with the fact that they directly played a role in spreading online disinformation that was harmful to the electoral process and American democracy, Facebook’s response was to only hire 3000 content monitors to search and remove online disinformation, after the 2016 Presidential election had concluded.

In light of the fact that online disinformation has continued to grow and spread in the year 2020, it is clear that whatever measures were put in place were ineffective. ISPs have no incentive to reduce their profitability either so, it is likely the Courts will continue this line of precedent, unless a change is made to how false statements are valued under the First Amendment or Section 230 is amended.

Without Section 230 Protections, the Government Could be Forced to Act Decisively in Fighting Online Disinformation Because of its Compelling Interest in National Security.

However, if the “Good Faith” protections of Section 230 were to be removed, ISPs would be opened up to liability for the content spread on their website. If a private individual were allowed to file a claims against ISPs, alleging harm stemming from online disinformation, then it is possible that the immense amount of litigation could force the Government to act, out of their desire to encourage the innovation of these tech companies. In this scenario, the Government holds all the cards; through either an Executive Order or new law, the Government would be able to force ISP’s to promulgate new procedures, dictated by the Government, that are more effective at dealing with online disinformation. However, for such an act to be constitutional, the law, order or amendment would have to pass a strict scrutiny level of review; but, by articulating its interests in national security, it is likely the Government would be able to make this argument.

Under federal law, "Whoever, with intent to cause the overthrow or destruction of any such government, prints, publishes, edits, issues, circulates, sells, distributes, or publicly displays any written or printed matter advocating, advising, or teaching the duty, necessity, desirability, or propriety of overthrowing or destroying any government in the United States by force or violence, or attempts to do so.” 

Similarly to statements made to harm the government, false statements are also not protected by the First Amendment in the same manner as truthful statements. False statements of fact are particularly valueless because they interfere with the truth-seeking function of the marketplace of ideas.

The Court applies the most exacting scrutiny in assessing content-based restrictions on protected speech.In addition, when the Government seeks to regulate protected speech, the restriction must be the least restrictive means among available, effective alternatives. First Amendment protections require that the Government's chosen restriction on the speech at issue be “actually necessary” to achieve its interest.There must be a direct causal link between the restriction imposed and the injury to be prevented.

National security cases often reflect a convergence of First and Fourth Amendment values that are usually not present when either Amendment is implicated alone; “though the investigative duty of the executive may be stronger in such cases, so also is there greater jeopardy to constitutionally protected speech.” Different standards may be compatible with the Fourth Amendment if they are reasonable both in relation to the legitimate need of Government for intelligence information and the protected rights of our citizens.  Application may vary according to the governmental interest to be enforced and the nature of citizen rights deserving protection.

         But, despite the Government’s unwillingness to engage in the regulation of false statements, outstanding case precedent makes it clear that it has the legal capacity to do so. Even though in U.S v. Alvarez , the Government failed to show that the statute at issue was “narrowly tailored and substantially related” to its compelling interest, this case clearly indicates that the government is willing to engage in the regulation of false statements, circumstances permitting. In U.S. v. Alvazrez, Alvarez attended a public board meeting and introduced himself as a retired marine of 25 years. He further represented that he received the Congressional Medal of Honor. All of these statements were lies, but in making them, it seemed that Alvarez had made no attempt to lie for the purposes of receiving financial or employment benefits or the privileges associated with those who had earned the medal. Alvarez was indicted under the Stolen Valor Act of lying, but argued that the act was unconstitutional because it violated his First Amendment right to free speech. The Supreme Court granted certiorari to resolve the issues and, ultimately, held for Alvarez. In its reasoning, the Court stated that to uphold a statute that regulated free speech based upon its content, the government would have to state a “compelling interest” that the statute advances and that it would have to be “narrowly tailored to advance this interest”. The Court stated that there was no evidence that  government’s claim that the potential for the dilution of the public’s general perception of military awards had actually occurred due to the statements made by Alvarzez. The Court did characterize this interest as “compelling”, in light of Congress’s desire to honor the military, but also found that the statute itself was unconstitutional because it was not narrowly tailored enough to advance the Government’s interest in honoring the military.

         To be clear, the standard the Government would have to meet to gain the constitutional ability to regulate false statements under the First Amendment is a high one, but because its national security interests are so compelling, implicated by its duty to protect American democracy, it is possible for them to meet this standard. And, if they could meet this standard, then the Government could gain the ability to propose a constitutional amendment to Section 230 that would open up ISPs to civil liability, either as a remedy or proactive move. A Section 230 Amendment would encourage a flood of private litigation to take place due to how profitable social media companies are; any perceived infringements on a person’s First Amendment rights, would likely lead a variety of people, sensing an opportunity to profit, to file suit. On the ISP’s side of things, the large amount of legal challenges would likely impact their operations to the extent that they would have to create some kind of procedure or compliance measure that was actually effective in fighting against online disinformation; the government, in wanting to continue to encourage innovation by these companies to facilitate the growing “marketplace of ideas” could force them to comply with stricter regulations in regards to online disinformation, in order to restore their indemnity. But, before the Government could do this, it would have to be able to argue for the constitutional right to regulate online disinformation. However to do this, regardless of whether this opportunity arises from the variety of cases brought about by opening ISPs up to private litigation or  through the creation of a new law entirely, the Government would still have to meet a strict scrutiny standard of review, in stating a compelling interest that is narrowly tailored and necessary to stem the flow of online disinformation. IF it could do this, then the Government would be able to create binding precedent that would force it to act more effectively and decisively. Similarly to Alvarez, the Government could begin to make its argument by pointing to an already compelling interest it has articulated in federal statute, by way of the Smith Act. The Smith Act’s purpose is to protect the government and American democracy by making it a crime for a person to circulate material that advocates for an attack on the government, either ideologically, physically or both. In light of the fact that the Smith Act is held as constitutional, it is clear that this interest in national security, specifically by way of regulating inciting material, is compelling enough to allow for regulation, in addition to narrowly tailored enough to meet strict scrutiny. However, there is no mention in regards to the falsity of information within the Smith Act. But, because false statements do not enjoy the same protection and the issue of online disinformation has national security implications, it is likely the Court would view a balancing of these two interests as heavily weighted in favor of the government’s interest in national security, due to the low value false statements inherently retain. Furthermore, because the purpose of the Smith Act is to regulate content that advocates attacks on the government; content that is false, but still has this purpose falls within the purview of the act.

 In sum, if the Government were to begin to make a case for the regulation of false statements, specifically in regards to the effects of online disinformation on political discourse, pass an Executive Order, or create a new law, then it would likely be able to articulate a compelling interest, that is narrowly tailored enough and necessary to achieve these aims; Alvarez informs the Courts and the Government that it has this power.