Why Trump’s Social Media Executive Order Is Both Illegal And Unwise

Today Donald Trump signed an Executive Order punishing social media companies for the way they moderate online content. The order was specifically aimed at Twitter, which has embarrassed the president this week by add fact-checks to several Trump tweets.

The meat of the Executive Order attacks Section 230 of the Communications Decency Act of 1996, saying, “When an interactive computer service provider removes or restricts access to content and its actions do not meet the criteria of subparagraph (c)(2)(A), it is engaged in editorial conduct. It is the policy of the United States that such a provider should properly lose the limited liability shield of subparagraph (c)(2)(A) and be exposed to liability like any traditional editor and publisher that is not an online provider.”

Here is what subparagraph (c)(2)(A) says:

No provider or user of an interactive computer service shall be held liable on account of—(A) 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

Communications Decency Act, subparagraph (c)(2)(A)

The law gives social media companies, “interactive computer services,” wide latitude to moderate a wide variety of objectionable content. The law specifically says that even constitutionally protected material can be restricted if the action is taken in good faith.

Another relevant portion of the law is subparagraph (c)(1) which is literally one sentence before the paragraph cited by the president’s Executive Order. That line says:

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.

In other words, the law specifically says that social media companies cannot be treated as publishers of information that they do not produce. Despite the plain language of the law, the president’s Executive Order calls on social media companies to be treated like “any traditional editor and publisher that is not an online provider.” Since laws passed by Congress have more weight than an Executive Order, President Trump’s decree is illegal on its face.

Beyond the illegality of the order, its premise is also wrong. In contrast to many Republicans who claim that Section 230 gives special protections to social media companies, the law actually offers protection based on activity rather than status. When Twitter moderates or removes tweets published by its users, it is protected from liability under the law but, when it produces its own content, it is legally a publisher.

“In plain English, this means that my comments on Twitter or Google or Yelp or the comments section of my favorite website are my comments, and my comments only,” David French explained in Time back in January, adding that Section 230 “allows websites to take down racial slurs – all without suddenly also becoming liable for all the rest of their users’ speech.”

This is exactly what Congress intended when it passed the law. In response to several court cases in the 1990s, Congress designed Section 230 to encourage internet providers to moderate and remove offensive content from their platforms rather than allowing the internet to continue to be a cesspool of insults, pornography, and fake news. Well, even more of one anyway.

As Jeff Kosseff, author of The 26 Words That Created The Internet, explained, “For Congress, the motivator for Section 230 was that it did not want platforms to be these neutral conduits, whatever that means. It wanted the platforms to moderate content.”

The rub is that if the government leaves it up to the internet providers to moderate content then there will be as many different versions of what is offensive as there are internet providers. However, the alternative is that the government become the arbiter of what is fair and what is offensive for all companies.

That is where President Trump wants to go. Trump’s Executive Order calls on the Secretary of Commerce, the Attorney General, the National Telecommunications and Information Administration (NTIA), and the FCC to issue regulations determining when internet providers are not acting in good faith, act inconsistently with terms of service, and without a meaningful explanation or allowing users to be heard.

While censorship on social media platforms is not currently a First Amendment issue since the Bill of Rights restricts the government and not private companies, Trump’s plan could make it more difficult to moderate offensive content on the internet by inserting the government into the equation. Twitter has the right to remove content as a private company but if the government directs Twitter to remove or moderate content then it could constitute a First Amendment violation.

Allowing the government to make subjective decisions about the management of content on the internet is never a good idea, but the summer of 2020 is a particularly bad time for Republicans to make such a move. Aside from the strategic fact that Trump’s proposal is an expansion of government into policing free speech on the internet, there are tactical considerations as well.

As we head into the 2020 elections, it looks increasingly likely that Republicans will lose both the presidency and the Senate. If Trump and company act now to set up an infrastructure for micromanaging speech on the internet, it is very possible that a Joe Biden Administration will put that policy fully into place. That fact alone should have been enough to slam the brakes on the Executive Order.

Regardless of the outcome of this year’s election, whatever bureaucratic restrictions the Trump Administration puts on free speech will one day be administered by Democrats. When that happens, it is very likely that the Democrats will use those rules against conservatives. When Republicans give the government a new weapon to brandish, they should remember that sooner or later it will be turned against them.

Originally published on The Resurgent

Praising God (In Person) In The Pandemic

On Sunday morning, my church had in-person services for the first time since March 15. After that service, shelter-in-place orders were imposed in Georgia and around much of the country. My church, along with many other places of worship, went to online, virtual services until the danger of the Coronavirus had subsided, if not totally passed.

Church leaders waited until the curve of virus cases in the two counties that the church primarily serves were well past the peak and there were few new cases. Combined, the two counties have had more than 600 confirmed COVID-19 cases and 21 deaths. Gov. Brian Kemp’s Executive Order has allowed churches to reopen for in-person services if they obey strict guidelines for several weeks now, but most churches in my area have elected to continue meeting online only.

When the decision was made to hold in-person services, several changes were made to the normal routine. First, Sunday School was canceled and a second worship service was added to accommodate social distancing. The church sanctuary was disinfected between the two services. All attendees were required to wear masks and hand sanitizer dispensers were placed prominently at the single entrance being used.

The shortage of sanitizer in normal retail outlets was a problem for reopening. Ironically, the church was able to procure a bulk supply of hand sanitizer from a local microbrewery, Chattabrewchee, that temporarily exchanged beer production for selling gallon jugs of homebrew sanitizer. The company produces 600 gallons of the sanitizer each week and, in addition to helping the community fight the pandemic, the shift in production also keeps the brewery’s workers employed.

Another change to the normal routine was reserved seating. Rather than wandering in a finding a seat, attendees signed up online with the number of people in their group. The church assigned seats that allowed a six-foot distance between groups. Ushers guided families to their assigned seats and dismissed the congregation by rows after the service.

When it came to the service, it was definitely nice to be back to worshipping in person. We normally tuned in to the streaming services on the church’s Facebook page, but it just isn’t the same. There are more distractions when trying to listen to a sermon at home, especially for the kids. This morning’s service was streamed as well for those who preferred not to attend in person or who could not be there.

And lots of church members did elect to watch from a distance. With social distancing in place, the sanctuary’s capacity was about 60 people. There were about 30 in attendance at our service and even fewer in the earlier service. The small crowd enhanced the planned distancing.

The two trickiest parts of the service as an attendee were singing and communion. I discovered that masks tend to ride down when you sing. This requires an occasional adjustment.

Communion was a bit more complicated but it was handled ingeniously. Rather than selecting a wafer and a cup from trays as is the norm, communion wafers were placed in a cup about half the size of a shot glass that normally holds the communion juice. Another cup holding the juice was placed on top of the wafer in the first cup. Congregants only had to pick up one cup to be served the entire communion. Masks did have to come down briefly to partake of communion, but they went right back up afterward. The cups, which were made of plastic, were disposed of after use.

Pilot Pundit@captainkudzu

We went to Church today. Masks, sanitizer and social distancing made that possible.

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Since March, I’ve written several times about how churches were hotspots for Coronavirus spread and how it was not unconstitutional or an attack on the freedom of religion to close churches. I stand by those columns. The difference in what my church is doing is that my church is an area where the virus is at very low levels. We also followed our governor’s guidelines to conduct a safe gathering, including wearing masks.

Contrary to those who say that mask-wearers are living in fear, it was masks, along with other preventive measures, that enabled my church to meet safely today in the midst of a pandemic. For the foreseeable future, masks are going to be part of returning to a way of life that isn’t normal but resembles the pre-COVID status quo. Masks are one of the tools that will allow public gatherings to resume.

As I’ve said before, it doesn’t matter if the government allows businesses and churches to reopen if people don’t feel safe enough to venture out in public. The slim crowd of churchgoers this morning is further evidence that a lot of Georgians are not ready to resume business as usual and are voting with their feet.

Originally published on The Resurgent

If you would like to continue the discussion on social media, you can visit David Thornton’s Facebook page or follow him on Twitter.

Brit Hume Rips Biden’s Mask

Former Vice President Joe Biden made his first public appearance since mid-March yesterday with a Memorial Day wreath-laying near his home in Delaware. Biden and his wife, Jill, were formally dressed with matching black face masks for the occasion, prompting Fox News anchor Brit Hume to quip on Twitter, “This might help explain why Trump doesn’t like to wear a mask in public.”

Brit Hume

✔@brithume

This might help explain why Trump doesn’t like to wear a mask in public. Biden today.

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The thing is, Biden didn’t look stupid as Hume implied. When I saw the pictures of him laying the wreath with his mask earlier in the day, I took it in stride, as most Americans probably did. A person wearing a mask might have drawn attention and stares three months ago but no longer.

If Republicans are declaring war on masks, as Hume and others seem to be doing, they may be making a strategic error. A Democracy Fund + UCLA Nationscape Project poll from last week found that 84 percent of Americans reported having worn a mask. That number included 81 percent of Republicans. Another recent poll, this one from Quinnipiac, found that voters thought that Trump should be wearing a mask in public by a two-to-one margin.

Studies with different findings and changing recommendations from health authorities contribute to the confusion about masks. Some of the confusion is deliberate. Several times yesterday, I saw people sharing a video of Dr. Fauci saying that masks were not necessary and alleging that the federal guidance on masks had changed again. In reality, the video was from a March 8 appearance on “60 Minutes.” A lot has changed since March 8 besides mask recommendations.

At this point, numerous studies have shown that masks reduce the spread of Coronavirus. While it is true that virus particles can go through many masks, that does not make them worthless as a defense against COVID-19. Studies have shown that even the much-maligned homemade cloth masks offer protection from disease transmission. Even cloth masks reduce the velocity of aerosol droplets emitted by coughing, sneezing, or talking and reduce the radius of viral transmission.

Critiques of masks fall into two main categories. First, critics note that masks don’t stop all virus particles. Second, they point out that masks can lead to reduced social distancing and more face-touching.

In aviation, we use the “Swiss-cheese” model for safety precautions. Any single precaution is likely to have flaws and holes, like a slice of Swiss cheese. The solution is to layer multiple safety strategies, several slices of cheese, to minimize the risk of an accident. The idea is to keep the holes from lining up.

In reducing disease transmission, the principle is the same. Masks are one slice of protection but not the only one. Social distancing, handwashing, and disinfecting surfaces make up additional lines of defense against the virus.

This helps to answer the meme question going around the internet of why masks are necessary if social distancing works and vice versa. It’s because neither is foolproof so using both techniques adds a level of safety. Masks are also necessary for reopening because not all stores have enough room for social distancing. Dr. Birx has said as much, stressing that social distancing is “absolutely critical” and that, if maintaining a six-foot distance is not possible, Americans “must wear a mask.”

We’ve made it clear that there’s asymptomatic spread, and that means that people are spreading the virus unknowingly,” Birx said on ABC’s “This Week.” “And this is unusual in the case of respiratory diseases in many cases.”

“You don’t know who’s infected. So we really want to be clear all the time that social distancing is absolutely critical,” she added.

If Americans want to reopen the economy without prompting a second wave of infections, then masks are a no-brainer. As to their effectiveness, just ask the doctors and nurses who wear masks for entire shifts to protect both themselves and their patients.

Americans will probably view Joe Biden’s mask as an indication of responsibility and maturity rather than a sign of weakness. Brit Hume’s denigration of the Democratic candidate following the advice of the CDC says more about Hume than it does Biden.

Originally published on The Resurgent

Trump Administration Declassifies Full Susan Rice Email – But Is It Incriminating?

The Trump Administration has declassified an email that Obama National Security Advisor Susan Rice sent to herself on January 20, 2017, the day that President Trump was inaugurated. The email memorializes a January 5, 2017 meeting in the Oval Office in which leaders of the intelligence community along with President Obama, Vice President Biden, and then-Acting Attorney General Sally Yates, discussed Michael Flynn.

Excerpts of the email were previously available but the full text has now been released to Politico and can be viewed here.

While some Republicans have viewed the email as a smoking gun in what they term “Obamagate,” it is not clear that the email is evidence of any wrongdoing by the Obama Administration. The second paragraph notes that “President Obama began the conversation by stressing his continued commitment to ensuring that every aspect of this issue is handled by the Intelligence and law enforcement communities ‘by the book.’”

“The president stressed that he is not asking about, initiating or instructing anything from a law enforcement perspective,” Rice said in the email. “He reiterated that our law enforcement team needs to proceed as it normally would by the book.”

The president then asked if there was any reason that information could not be shared fully with the incoming Trump team “as it relates to Russia.”

Then FBI-Director James Comey answered the question. His reply is newly declassified.

“Director Comey affirmed that he is proceeding ‘by the book’ as it relates to law enforcement,” Rice wrote. “From a national security perspective, Comey said he does have some concerns that incoming NSA Flynn is speaking frequently with Russian Ambassador Kislyak. Comey said that could be an issue as it relates to sharing sensitive information. President Obama asked if Comey was saying that the NSC should not pass sensitive information related to Russia to Flynn. Comey replied ‘potentially.’ He added that he has no indication thus far that Flynn has passed classified information to Kislyak, but he noted that ‘the level of communication is unusual.’”

The one-page email concludes with the paragraph, “The President asked Comey to inform him if anything changes in the next few weeks that should affect how we share classified information with the incoming team. Comey said that he would.”

The declassified email comes on the heels of another document released by Richard Grenell, the acting Director of National Intelligence, last week. The earlier document names Joe Biden’s office as the source of a request for the unmasking of Flynn’s name in intelligence reports.

The documents certainly mention Biden and Flynn and a host of others, but what do they mean? The answer is less than what the Trump Administration is implying.

Rice’s memo does show that the FBI was aware of Flynn’s contacts with Kislyak, the Russian ambassador, but it does not prove that the FBI had the Trump campaign under surveillance, but it is not evidence of wrongdoing.

The Rice email undercuts the Obamagate conspiracy theory by bringing the meeting into the open rather than trying to deny it or hide the details. Rice openly acknowledges the meeting took place and says the investigation was “by the book.” Is there evidence to the contrary? If so, the Trump Administration has not provided it.

Likewise, the fact that a number of Obama Administration officials requested unmasking is not sinister in and of itself. In fact, the requests for unmasking undercut the claims that the Trump campaign was being surveilled.

When an official sees a FISA intelligence report, the names of US citizens who were detected because they were communicating with a foreign person who was the target of the surveillance are “masked” to US intelligence officials. For example, an American might be anonymized as “US Person 1.” Unmasking requests are not uncommon. Politifact reports that there were approximately 27,000 such requests in the first two years of the Trump Administration.

The fact that Obama officials were requesting that Flynn’s name be unmasked is an indication that they did not know who he was. This would not have been the case if they were intentionally eavesdropping on the Trump campaign. Further, the large number of requests for unmasking is evidence that the Obama Administration officials were not gossiping about Flynn’s contacts with Kislyak. If they had known beforehand that it was Flynn, they would not have needed to create a paper trail with unmasking requests.

Reaching back a few weeks further, the FBI notes released by Flynn’s lawyers also fall short of proving wrongdoing on the part of investigators. The documents, which Flynn’s advocates claim prove that Flynn plead guilty to protect his son and that the FBI tricked Flynn into lying, do not show anything outside the “range of normal prosecutorial hardball” per Benjamin Wittes of Lawfare Blog.

In reality, Flynn plead guilty not once but twice. His proponents overlook a December 2018 sentencing hearing in which Flynn himself blows their theories out of the water. In that hearing (transcript here), Flynn acknowledged his guilt, acknowledged that he was aware that lying to the FBI was a crime, and declined to challenge the circumstances under which he was interviewed by the FBI.

In the end, we are left with a man who was not targeted by the FBI but was swept up in surveillance of foreign diplomats. Flynn then lied about his conversations with Kisylak when he knew that doing so was a federal crime. Flynn’s phone calls to Kislyak were not illegal but lying about them was. The FBI did not force Flynn to lie but rather gave him the rope to hang himself.

Based upon current evidence, to make the Obamagate allegations a crime, we would have to assume that any surveillance of a presidential campaign staffer is illegal or unethical. In reality, it is not a bad thing if surveillance of foreign agents nets campaign staffers. Being a member of a political campaign does not confer immunity from investigation or prosecution even though it does make such matters politically sensitive.

Nevertheless, the Trump Administration is proceeding full steam ahead with the claim that the Obama Administration acted illegally, even to the point of threatening to subpoena former officials in the case. This is true even though last week President Trump was unable to cite a specific crime that was supposedly committed by the Obama Administration. Instead, Republicans make the generic claim that Obama tried to “weaponize” the FBI and intelligence agencies for political purposes, which sounds a lot like what the Trump Administration is doing.

Republicans may want to think twice about that. In about eight months, Donald Trump may be a private citizen once again and Democrats might very well control both houses of Congress. If the GOP sets a precedent of hauling former Administration officials before Congress for trumped-up political investigations, Mr. Trump and his subordinates may find that they have a lot to answer for.

Originally published on The Resurgent

Reopened Georgia Church Sparks New Outbreak

A church in Georgia learned all-too-well the perils of opening too quickly in a pandemic. After reopening for in-person services in April, the church is now reclosing after several families became infected with COVID-19.

The Catoosa Baptist Temple, an independent Baptist church in Ringgold, was one of the first churches in the state to reopen after Gov. Brian Kemp issued strict sanitary guidelines that include personal protective equipment (PPE), social distancing, and limited gatherings to groups of fewer than 10 people. The church first held in-person services on April 26 the Christian Post reports. On May 11, after three weeks of services, the church leaders decided to suspend future services after they learned of an outbreak that affected multiple families within the congregation.

“Our hearts are heavy as some of our families are dealing with the effects of the COVID-19 virus, and we ask for your prayers for each of them as they follow the prescribed protocol and recuperate at home,” the church said in a formal statement. “Though we feel very confident of the safe environment we are able to offer in our facilities, the decision was made … that we would discontinue all in-person services again until further notice in an effort of extreme caution for the safety and well-being of our families.” 

The church did not disclose how many members or families had been afflicted with COVID-19, but did note that only about a quarter of the normal congregation had attended the mid-pandemic services. The church also offered a streaming service over the internet.

“Based on the current data that was shared and the low volume of cases in our area at the time, and in an effort to offer our families both options of either attending in-person services or streaming online, we resumed services in the Tabernacle a couple of weeks ago. While approximately a fourth of our congregation chose to attend the in-person services, our other families chose to remain at home and continue enjoying our streaming services,” the church said.

In the statement, the church did note that it had followed Gov. Kemp’s guidelines, saying, “Seating was marked to only permit sitting within the six foot guidelines, all doors were open to allow access without the touching of doors, and attendees were asked to enter in a social distancing manner and were dismissed in a formal manner as well to ensure that the social distancing measures were adhered by all.”

Ringgold is located in northern Georgia in Catoosa County. The small town of 3,600 people sits in the shadow Chattanooga, which is located just across the state line. The Georgia COVID-19 status page shows a total of 72 confirmed cases in Catoosa County with no deaths.

Coronavirus cases in the county spiked a few days before the Catoosa Baptist Temple resumed services. Since April 26, the county has had six confirmed cases with another nine preliminary cases. It is not known whether all of these cases can be traced to the church congregation.

In total, Georgia’s Coronavirus outbreak has continued to decline. Yesterday, only 81 new cases were reported. This is down from a high of 933 on April 28.

Nevertheless, the experience of the Catoosa Baptist Temple is a caution against returning to normal too early. While the church says that it maintained the guidelines, it isn’t known whether members who had not seen each other for weeks were hugging and shaking hands in the parking lot.

Churches have been hot zones for the spread of COVID-19 in many places. Despite that fact, many continue to insist on holding in-person services and decrying closures as unconstitutional and tyrannical.

Past John MacArthur of the Grace Community Church in Sun Valley, California has a response to that charge. In a discussion posted to Facebook, MacArthur said that such concerns were “irrelevant” because the shutdown orders did not single out churches but were for the “greater good.”

“In Romans chapter 13, Paul says, ‘You submit yourself to the government, the powers that be.'” MacArthur points out. “But Peter adds to that, ‘You submit yourself to the governor and the king,’ whoever that personal authority is.”

“When you’re told by an authority to do something and it’s for the greater good of the society physically, that’s what you do because that’s what Christians would do,” he adds. “We are not rebels and we’re not defiant, and we don’t flaunt our freedom at the expense of someone else’s health.”

Shelter-in-place cannot go on indefinitely. We have to restart our lives. That includes work, education, and worship. But as we emerge from isolation we must resist the temptation to forget that a deadly virus is still among us. There is still a pandemic and a lapse of caution can reignite the outbreak.

[Full Disclosure: My church plans to hold its first in-person post-pandemic service this Sunday. Church leaders are taking great pains to maintain a safe environment that includes multiple services with a cleaning in between, PPE, social distancing, and reserved seating. The Coronavirus curve in my area has reached a level that is almost nil with only three cases reported yesterday in the two counties that are where most members live.]

Originally published on The Resurgent