Social Media, the First Amendment, and Democratic Dysfunction in the Trump Era

26 Pages Posted: 13 Jul 2020

See all articles by Mark Kende

Mark Kende

Drake University Law School

Date Written: June 18, 2020

Abstract

In the fall of 2019, the congressionally endowed Drake Constitutional Law Center held a symposium on the book, Democracy and Dysfunction, authored by University of Texas law professor Sandy Levinson and Yale law professor Jack Balkin. Several scholars offered commentary on the book. This Article focuses on how the Internet is not what it used to be. The Internet is now a major reason why the U.S. political system has broken down. While several other books have made this argument at length, this Article synthesizes these viewpoints in a concise and useful manner.

In 1997, the U.S. Supreme Court treated Internet 1.0 as a sacrosanct technology. The Internet has changed dramatically since then with Facebook, Google, and Amazon becoming among the world’s most dominant companies and social media platforms taking charge. Yet the Court has still provided these companies with the utmost protection. Unfortunately, Internet 2.0 contains encrypted websites allowing dangerous collaborations, salacious materials, a Dark Web, and even postings designed to sabotage elections. It is no accident that the Russians succeeded at influencing the 2016 U.S. presidential election. People’s privacy is also being invaded. And President Donald Trump tweets messages with racist, sexist, and otherwise inflammatory elements on social media.

This Article shows how the poisonous social media mentioned above and the absence of useful restrictions have caused political dysfunction. The Article also shows how several often-praised First Amendment cases have contributed to these problems, as have the imprecise and detrimental algorithms employed by these companies. Moreover, the Article asserts that the provisions of 42 U.S.C. § 230 could be used by these private entities to support cleansing efforts that are necessary and thereby avoid government controls.

Keywords: Social Media, First Amendment, Cyberspace, Free Speech, Internet, Elections, Democray, Dysfunction, Corruption, Facebook, Google, Twitter, Immunity, Cyber-bullying, Sexist, Racist, Platforms, Trump

Suggested Citation

Kende, Mark, Social Media, the First Amendment, and Democratic Dysfunction in the Trump Era (June 18, 2020). 68 Drake Law Review 273 (2020), Available at SSRN: https://ssrn.com/abstract=3630653

Mark Kende (Contact Author)

Drake University Law School ( email )

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HOME PAGE: http://www.drake.edu/law/clinics-centers/conlaw/

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