When Ethics Fails, The Law Steps In, And Often Makes An Ass Of Itself…


There is no excuse for this:

Abbott tweet

Well, let me clarify that a bit. Anger, frustration, outrage at the open attack on democracy and a level playing field in the marketplace of ideas are all legitimate reasons for someone to default to “there ought to be a law!,” but there is no excuse for elected officials like Abbott and Texas legislators displaying such ignorance of the Bill of Rights.

Stipulated: what Big Tech and the social media platforms are doing right now, deliberately and brazenly attempting to slam their fists down on the scales of democracy to make it as difficult as possible to communicate opinions, news and other expression that our rising woke dictators find inconvenient, is a genuine threat to the nation’s values and existence. However, those same values will be weakened if laws mandating companies to be fair and ethical undermine the First Amendment. As the giddy AUC and my Trump Deranged Facebook friends immediately reply to any criticism of the growing censorship of conservatives and especially President Trump, a private company has a nearly absolute right to decide who has access to its free services. As the social justice crusaders don’t say, but prove every time they make this kneejerk observation, they are thrilled to see their fellow citizens muzzled this way, since it advances their own interests. Big Tech and the social media companies have the right, but it is not right for them to abuse it this way when they have so much control over public debate and information.

Maybe Abbott understands the Constitution more than he is letting on, and he is just grandstanding for the masses. That’s unethical too. It also makes the public dumber, and the thought of that is terrifying. Any remedy for the sinister—it is sinister—efforts by these powerful platforms to manipulate public debate and national politics will have to involve competition, public pressure, anti-trust action, national measures treating Big Tech as public utilities and social media platforms as common carriers, or some combination. Abbott’s law will be dead on arrival.

The other side of this story is the smug, gloating slap-downs Abbott is getting from the academic Left, which is obviously ecstatic at the so-far successful efforts of these professors’ allies to strangle democracy using tactics the Constitution denies to our government.

“You are so dumb you don’t understand the difference between government censorship and private speech decisions,” wrote Georgia State University law professor Eric Segall. “One violates the 1st amendment and one is protected by the 1st amendment. Your bill flips the two. Dumb and unconstitutional and I think very little is unconstitutional.” Sam Brunson, the Georgia Reithal Professor Law at Loyola University Chicago, ridiculed Abbott’s declaration, saying “yet another Republican announces that he really doesn’t give a damn about little things like, say, the First Amendment to the Constitution.” Dean of Missouri School of Law Lyrissa Lidsky, weighed in with, “As a general proposition, the Government does not get to set itself up as the arbiter of Truth; nor does the First Amendment permit the government to tell private companies what to publish or refrain from publishing on their own property.”

I’ll be waiting breathlessly for the Dean’s similar pronouncement regarding the Democrats’ current effort to muzzle Fox News and other conservative media, and its sudden enthusiasm for “truth commissions.”

The First Amendment defines a national value as well as a prohibition. The former involves an ethical principle, and the latter is law. The latter is not a substitute for the former, and neither will survive without the other.. Our increasingly totalitarian friends, neighbors and elites are perfectly happy to watch the ethical value be weakened and warped while they celebrate the law, because this suits their undemocratic agendas.

They, and the unethical corporate giants, will have to be defeated. Ignorant efforts like Abbott’s don’t help, except perhaps to make progressive enemies of free speech over-confident.

One thought on “When Ethics Fails, The Law Steps In, And Often Makes An Ass Of Itself…

  1. You are 100% correct but I see some real holes in the argument that private firms can undermine rights that would be otherwise prohibited by government.

    “As the giddy AUC and my Trump Deranged Facebook friends immediately reply to any criticism of the growing censorship of conservatives and especially President Trump, a private company has a nearly absolute right to decide who has access to its free services.”

    I am not so sure those services are in fact “free”. Yes they require no money to be spent to use them but they do cost in terms of private data they can use at will. If data has value to advertisers then it stands to reason that a voluntary exchange of date for service is a market transaction similar to barter.

    Moreover, real estate agents show homes to prospective buyers at not cost to the buyer unless the buyer employs the agent as a buyer’s agent. If a Realtor decided to say to a white couple that they would not show houses to that couple because maybe the couple had a Trump sign on their vehicle – ie political ideology is not protected – then what would stop anyone in today’s identity politics world to rely on political ideology as the rationale for discrimination.

    I am not discriminating against gays because they are gay; I am discriminating against them because they advocate for policies I disagree with.
    I am not discriminating against Blacks because of their race; I am discriminating against them because they had a BLM sticker on their car.

    Perhaps the lawyers here could enlighten me but do these bans by Twitter and Facebook disproportionately affect any particular racial group? I bet they do.

    If media executives are brought in to consult with government officials on efforts to mitigate what the administration calls “disinformation, lies or conspiracy theories” and the executives who favor that administration decide to unequally apply the standards are they not acting as an arm of the government.

    Here is a question, can the government pass a law that strongly encourages a behavior by a firm that would knowingly harm the existing government’s opposition because the government is prohibited from doing on its own by the Constitution? I don’t believe a police officer can ask or encourage a civilian to enter another’s home for the sole purpose of looking for illegal activity and then use any physical evidence given by the civilian to the police in court.

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