Category: reason

Steve Calabresi Responds and Updates His Arguments on Impeachment Hearings

Last week, my colleague Northwestern Professor Steve Calabresi published an op-ed raising issues about the procedural fairness of the impeachment hearings.  He met with strong attacks, including by my Volokh colleague, Professor David Post.

At the Daily Caller, Calabresi has now updated his original arguments on the issue:

Numerous critics have contacted me arguing that Sixth Amendment rights would apply to President Trump in a Senate trial, but not in a House proceeding.

But why were Presidents Nixon and Clinton given Sixth Amendment rights in their House impeachment proceedings which President Trump is being refused?

The House of Representatives may function only as a grand jury in impeachment proceedings, in which case House Democrats may have been violating Trump’s Fifth Amendment Due Process Clause rights by leaking damaging information about him as the result of a secret investigation in which the charges have not been revealed. He has not been able to confront the witnesses against him, and he has not been able to call witnesses in his own defense.

I say the House of Representatives may function as a grand jury in cases of impeachment because in some respects the impeachment process is sui generis.

In both the Nixon and Clinton impeachment proceedings, the House gave presidents their Sixth Amendment rights. The House did not in those proceedings leak damaging information to the press obtained in a secret proceeding. Nixon and Clinton were informed of the charges against them, they were able to confront witnesses against them, and they were able to call witnesses in their own defense.

There is quite simply no question, at all, that impeachment cases in England were criminal law proceedings. They usually ended up with the House of Lords pronouncing the death penalty or life imprisonment as its sentence. Article III, section 2, paragraph 3 explicitly states: “The Trial of all Crimes, except in cases of Impeachment, shall be by jury.” Sixth Amendment rights, in turn, attach “In all criminal proceedings” and Fifth Amendment Due Process Clause rights apply to grand jury proceedings in which it is illegal to secretly leak grand jury information to the press.

The framers of our Constitution limited the Senate’s power to punish impeached officials to removal from office and disqualification from holding office in the future. That does not change the criminal nature of an impeachment case, which the Senate hears as a Court of Impeachment. Removal from office can only happen if the Senate finds that President Trump has committed “Treason, Bribery, or other high Crimes and Misdemeanors.”

I haven’t gone through the arguments pro and con with care, but the question whether these hearings are fundamentally unfair is different from the question whether full 5th and 6th amendment rights are legally required.

We have an established tradition in the Clinton and Nixon impeachment proceedings for how to conduct fair hearings of this type, a tradition that is being ignored today.  Further, a presidential impeachment is important enough that the protections should be exemplary, not sub-normal.  One should also remember that grand juries are often criticized as being fundamentally unfair (e.g., “ham sandwich”)–and with grand juries, proceedings are secret and leaking testimony is a crime.

Here having public hearings, while allowing only one side of the story and prohibiting the Republicans from calling their own witnesses, makes the hearings less like a trial or a grand jury and more like a show trial.

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Steve Calabresi Responds and Updates His Arguments on Impeachment Hearings

Last week, my colleague Northwestern Professor Steve Calabresi published an op-ed raising issues about the procedural fairness of the impeachment hearings.  He met with strong attacks, including by my Volokh colleague, Professor David Post.

At the Daily Caller, Calabresi has now updated his original arguments on the issue:

Numerous critics have contacted me arguing that Sixth Amendment rights would apply to President Trump in a Senate trial, but not in a House proceeding.

But why were Presidents Nixon and Clinton given Sixth Amendment rights in their House impeachment proceedings which President Trump is being refused?

The House of Representatives may function only as a grand jury in impeachment proceedings, in which case House Democrats may have been violating Trump’s Fifth Amendment Due Process Clause rights by leaking damaging information about him as the result of a secret investigation in which the charges have not been revealed. He has not been able to confront the witnesses against him, and he has not been able to call witnesses in his own defense.

I say the House of Representatives may function as a grand jury in cases of impeachment because in some respects the impeachment process is sui generis.

In both the Nixon and Clinton impeachment proceedings, the House gave presidents their Sixth Amendment rights. The House did not in those proceedings leak damaging information to the press obtained in a secret proceeding. Nixon and Clinton were informed of the charges against them, they were able to confront witnesses against them, and they were able to call witnesses in their own defense.

There is quite simply no question, at all, that impeachment cases in England were criminal law proceedings. They usually ended up with the House of Lords pronouncing the death penalty or life imprisonment as its sentence. Article III, section 2, paragraph 3 explicitly states: “The Trial of all Crimes, except in cases of Impeachment, shall be by jury.” Sixth Amendment rights, in turn, attach “In all criminal proceedings” and Fifth Amendment Due Process Clause rights apply to grand jury proceedings in which it is illegal to secretly leak grand jury information to the press.

The framers of our Constitution limited the Senate’s power to punish impeached officials to removal from office and disqualification from holding office in the future. That does not change the criminal nature of an impeachment case, which the Senate hears as a Court of Impeachment. Removal from office can only happen if the Senate finds that President Trump has committed “Treason, Bribery, or other high Crimes and Misdemeanors.”

I haven’t gone through the arguments pro and con with care, but the question whether these hearings are fundamentally unfair is different from the question whether full 5th and 6th amendment rights are legally required.

We have an established tradition in the Clinton and Nixon impeachment proceedings for how to conduct fair hearings of this type, a tradition that is being ignored today.  Further, a presidential impeachment is important enough that the protections should be exemplary, not sub-normal.  One should also remember that grand juries are often criticized as being fundamentally unfair (e.g., “ham sandwich”)–and with grand juries, proceedings are secret and leaking testimony is a crime.

Here having public hearings, while allowing only one side of the story and prohibiting the Republicans from calling their own witnesses, make the hearings less like a trial or grand jury and more like a show trial.

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Oscar-Winner Errol Morris on American Dharma, Steve Bannon, and Cancel Culture

When Errol Morris debuted American Dharma, his documentary about Stephen Bannon, last year at the Venice Film Festival, he received an ovation. But after early reviewers accused the Oscar-winning director of letting the former Breitbart.com head and adviser to President Trump “off the hook,” Morris found it impossible to get a distribution deal in the United States.

It was the first time in decades that the acclaimed director of The Thin Blue Line and The Fog of War couldn’t get a movie into theaters. “The experience was so damn weird,” Morris tells Reason. “People became so angry with me and with the movie, they certainly wanted to deplatform not just Bannon, but they wanted to deplatform me.”

But now his film, American Dharma, is finally in theaters.

Nick Gillespie sat down with the 71-year-old Morris, whom Roger Ebert called “as great a filmmaker as Hitchcock or Fellini,” for a wide-ranging conversation about the censorious first reactions to his new film, his history with Elizabeth Holmes and Theranos, and what he learned—and didn’t learn—about Steve Bannon’s philosophy. He also talks about why he thinks we’re in a golden age of documentary filmmaking, his heated grad-school confrontations with philosopher Thomas Kuhn (detailed in his recent book The Ashtray: Or the Man Who Denied Reality), and Wormwood, his 2017 Netflix docudrama series about the CIA’s notorious MKUltra mind-control program.

Audio production by Ian Keyser.

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Oscar-Winner Errol Morris on American Dharma, Steve Bannon, and Cancel Culture

When Errol Morris debuted American Dharma, his documentary about Stephen Bannon, last year at the Venice Film Festival, he received an ovation. But after early reviewers accused the Oscar-winning director of letting the former Breitbart.com head and adviser to President Trump “off the hook,” Morris found it impossible to get a distribution deal in the United States.

It was the first time in decades that the acclaimed director of The Thin Blue Line and The Fog of War couldn’t get a movie into theaters. “The experience was so damn weird,” Morris tells Reason. “People became so angry with me and with the movie, they certainly wanted to deplatform not just Bannon, but they wanted to deplatform me.”

But now his film, American Dharma, is finally in theaters.

Nick Gillespie sat down with the 71-year-old Morris, whom Roger Ebert called “as great a filmmaker as Hitchcock or Fellini,” for a wide-ranging conversation about the censorious first reactions to his new film, his history with Elizabeth Holmes and Theranos, and what he learned—and didn’t learn—about Steve Bannon’s philosophy. He also talks about why he thinks we’re in a golden age of documentary filmmaking, his heated grad-school confrontations with philosopher Thomas Kuhn (detailed in his recent book The Ashtray: Or the Man Who Denied Reality), and Wormwood, his 2017 Netflix docudrama series about the CIA’s notorious MKUltra mind-control program.

Audio production by Ian Keyser.

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Federal Government Can’t Just Allow 3D Gunmaking Software To Proliferate Without a License, Federal Judge Declares

The federal government in 2013 told Defense Distributed—a company whose business involves the distribution of tools and software for the 3D-printing or otherwise home-milling of weapons—that certain software files it distributed constituted the illegal export of armaments under International Traffic in Arms Regulations (ITAR) and the Arms Control Export Act (AECA).

Seeing the files as analogous to a book containing instructions on how to make a gun, Defense Distributed, along with other parties, sued the State Department in 2015 on First Amendment grounds. The federal government settled that lawsuit in July 2018. As part of the settlement, the feds announced certain such software files, known generically as CAD files (for computer-aided design), would be removed from the United States Munitions List (USML). Items on that list require a license to export.

Within days of that announcement, various states and the District of Columbia sued the federal government for taking the files off the list, claiming that the removal was done “in violation of the Administrative Procedure Act [APA].” The plaintiffs claimed that “there is no indication in the settlement agreement or elsewhere that any analysis, study or determination was made by the government defendants in consultation with other agencies before the federal government agreed to lift export controls on the downloadable guns.” The plaintiffs also said the decision “violates the Tenth Amendment by infringing on states’ rights to regulate firearms.”

This week, Judge Robert A. Lasnik of U.S. District Court for the Western District of Washington, in deciding on motions for summary judgment in that suit, agreed that removing those files from the USML was unlawful based on the APA arguments (though not the 10th Amendment ones), and reversed the federal government’s choice to allow free distribution of the files.

As discussed in Lasnik’s decision, the federal government’s initial reaction to the states’ suit “justified the deregulation of the CAD files [that could help make weapons]…by pointing to a Department of Defense determination that the items ‘do not provide the United States with a critical military or intelligence advantage’ and ‘are already commonly available and not inherently for military end-use.'”

However, the government has been temporarily enjoined from following through on their “temporary modification of the USML” as the suit progressed. In practical terms, this has been meaningless to any actual interest of the states suing, unless that interest was just to bedevil Defense Distributed, as the files—like most things on the internet—can be and are widely distributed by anyone else who pleased besides Defense Distributed. They’re just files, after all, and nothing on the internet is easier to share.

Defense Distributed argued that the State Department’s decision should lawfully be at the government’s discretion with no judicial overview. Lasnik admits that “The AECA expressly commits one type of decision to agency discretion, namely the decision to designate an item as a defense article or defense service.”

But the rub, as Lasnik sees it, is that the regulatory decision the plaintiffs were challenging was not about designating files, but rather removing them from USML. Lasnik thinks the suing states have legitimate cause to challenge the government’s “failure to comply with statutory procedures and/or to consider certain congressionally-specified factors when making removal decisions under AECA. Congress did not expressly make such removal decisions unreviewable.”

The federal government, for its part, argued that the suing states were not legitimately injured parties who should have legal standing to sue, though Lasnik concluded that “the States’ interests in curbing violence, assassinations, terrorist threats, aviation and other security breaches, and violations of gun control laws within their borders are at least marginally related to the interests protected or regulated by the AECA.”

Lasnik concluded that the removal of the CAD files from USML was done illegitimately without legally required 30-day notice to Congress, and that, despite arguments to the contrary from Defense Distributed,

this procedural failure cannot be rectified by providing Congressional notice thirty days in advance of making the ‘temporary’ removal ‘final:’ the temporary modification implemented the removal immediately, without waiting for the proposed rule to become final and without giving Congress notice and an opportunity to exercise its oversight role. Because the removal to which the States object occurred as of July 27, 2018, a subsequent notice is obviously not timely under the statute.

Thus, the removal “must be held unlawful and set aside under §706 of the APA.”

Lasnik also finds the removal decision to be illegally “arbitrary and capricious” because “Congress directed the agency to consider how the proliferation of weaponry and related technical data would impact world peace, national security, and foreign policy,” and that the State Department seemed to evaluate “export controls on small caliber
firearms only through the prism of whether restricting foreign access would provide the United States with a military or intelligence advantage,” which is too narrow.

Judge Lasnik thus believes “the delisting was not ‘based on consideration of the relevant factors and within the scope of the authority delegated to the agency by the statute,’ [thus] it must be invalidated under the APA.” Lasnik believes the State Department should be required to give more detailed reasoning for why they changed their mind on the USML listing of those files, since the government “failed to identify substantial evidence in the administrative record explaining a change of position that necessarily contradicts its prior determinations and findings regarding the threats posed by the subject CAD files and the need to regulate the same under the AECA.”

Nothing in Lasnik’s decision gives any consideration to the notion that the very lawsuit against the government, which the government was settling when they made that decision, argued that having those files on the USML violated the First Amendment rights of Defense Distributed. Because it was a settlement and not a decision on the merits, the government is not on record as saying it agreed its previous actions violated the First Amendment.

The Lasnik decision ignored free speech in his close-focus on APA consideration, though the judge did point out that the federal government “has not relied on the First Amendment as justification for its action, and neither the Court nor the private defendants may supply a basis for the decision that the agency itself did not rely upon.”

Chad Flores, lead counsel for Defense Distributed, said in an email today in reaction to Lasnik’s decision that “The First Amendment protects the freedom of speech from all abridgment, including this lawsuit’s indirect censorship methods. The APA is important, but no statute can require the federal government to violate the First Amendment.”

In Flores’ eyes, “with today’s unprecedented ruling, a few rogue state officials have commandeered the State Department to do their unconstitutional bidding nationwide.  Defense Distributed will be appealing and fully expects a swift reversal.”

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Federal Government Can’t Just Allow 3D Gunmaking Software To Proliferate Without a License, Federal Judge Declares

The federal government in 2013 told Defense Distributed—a company whose business involves the distribution of tools and software for the 3D-printing or otherwise home-milling of weapons—that certain software files it distributed constituted the illegal export of armaments under International Traffic in Arms Regulations (ITAR) and the Arms Control Export Act (AECA).

Seeing the files as analogous to a book containing instructions on how to make a gun, Defense Distributed, along with other parties, sued the State Department in 2015 on First Amendment grounds. The federal government settled that lawsuit in July 2018. As part of the settlement, the feds announced certain such software files, known generically as CAD files (for computer-aided design), would be removed from the United States Munitions List (USML). Items on that list require a license to export.

Within days of that announcement, various states and the District of Columbia sued the federal government for taking the files off the list, claiming that the removal was done “in violation of the Administrative Procedure Act [APA].” The plaintiffs claimed that “there is no indication in the settlement agreement or elsewhere that any analysis, study or determination was made by the government defendants in consultation with other agencies before the federal government agreed to lift export controls on the downloadable guns.” The plaintiffs also said the decision “violates the Tenth Amendment by infringing on states’ rights to regulate firearms.”

This week, Judge Robert A. Lasnik of U.S. District Court for the Western District of Washington, in deciding on motions for summary judgment in that suit, agreed that removing those files from the USML was unlawful based on the APA arguments (though not the 10th Amendment ones), and reversed the federal government’s choice to allow free distribution of the files.

As discussed in Lasnik’s decision, the federal government’s initial reaction to the states’ suit “justified the deregulation of the CAD files [that could help make weapons]…by pointing to a Department of Defense determination that the items ‘do not provide the United States with a critical military or intelligence advantage’ and ‘are already commonly available and not inherently for military end-use.'”

However, the government has been temporarily enjoined from following through on their “temporary modification of the USML” as the suit progressed. In practical terms, this has been meaningless to any actual interest of the states suing, unless that interest was just to bedevil Defense Distributed, as the files—like most things on the internet—can be and are widely distributed by anyone else who pleased besides Defense Distributed. They’re just files, after all, and nothing on the internet is easier to share.

Defense Distributed argued that the State Department’s decision should lawfully be at the government’s discretion with no judicial overview. Lasnik admits that “The AECA expressly commits one type of decision to agency discretion, namely the decision to designate an item as a defense article or defense service.”

But the rub, as Lasnik sees it, is that the regulatory decision the plaintiffs were challenging was not about designating files, but rather removing them from USML. Lasnik thinks the suing states have legitimate cause to challenge the government’s “failure to comply with statutory procedures and/or to consider certain congressionally-specified factors when making removal decisions under AECA. Congress did not expressly make such removal decisions unreviewable.”

The federal government, for its part, argued that the suing states were not legitimately injured parties who should have legal standing to sue, though Lasnik concluded that “the States’ interests in curbing violence, assassinations, terrorist threats, aviation and other security breaches, and violations of gun control laws within their borders are at least marginally related to the interests protected or regulated by the AECA.”

Lasnik concluded that the removal of the CAD files from USML was done illegitimately without legally required 30-day notice to Congress, and that, despite arguments to the contrary from Defense Distributed,

this procedural failure cannot be rectified by providing Congressional notice thirty days in advance of making the ‘temporary’ removal ‘final:’ the temporary modification implemented the removal immediately, without waiting for the proposed rule to become final and without giving Congress notice and an opportunity to exercise its oversight role. Because the removal to which the States object occurred as of July 27, 2018, a subsequent notice is obviously not timely under the statute.

Thus, the removal “must be held unlawful and set aside under §706 of the APA.”

Lasnik also finds the removal decision to be illegally “arbitrary and capricious” because “Congress directed the agency to consider how the proliferation of weaponry and related technical data would impact world peace, national security, and foreign policy,” and that the State Department seemed to evaluate “export controls on small caliber
firearms only through the prism of whether restricting foreign access would provide the United States with a military or intelligence advantage,” which is too narrow.

Judge Lasnik thus believes “the delisting was not ‘based on consideration of the relevant factors and within the scope of the authority delegated to the agency by the statute,’ [thus] it must be invalidated under the APA.” Lasnik believes the State Department should be required to give more detailed reasoning for why they changed their mind on the USML listing of those files, since the government “failed to identify substantial evidence in the administrative record explaining a change of position that necessarily contradicts its prior determinations and findings regarding the threats posed by the subject CAD files and the need to regulate the same under the AECA.”

Nothing in Lasnik’s decision gives any consideration to the notion that the very lawsuit against the government, which the government was settling when they made that decision, argued that having those files on the USML violated the First Amendment rights of Defense Distributed. Because it was a settlement and not a decision on the merits, the government is not on record as saying it agreed its previous actions violated the First Amendment.

The Lasnik decision ignored free speech in his close-focus on APA consideration, though the judge did point out that the federal government “has not relied on the First Amendment as justification for its action, and neither the Court nor the private defendants may supply a basis for the decision that the agency itself did not rely upon.”

Chad Flores, lead counsel for Defense Distributed, said in an email today in reaction to Lasnik’s decision that “The First Amendment protects the freedom of speech from all abridgment, including this lawsuit’s indirect censorship methods. The APA is important, but no statute can require the federal government to violate the First Amendment.”

In Flores’ eyes, “with today’s unprecedented ruling, a few rogue state officials have commandeered the State Department to do their unconstitutional bidding nationwide.  Defense Distributed will be appealing and fully expects a swift reversal.”

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Is Trump’s EPA Seeking To Gut Good Science?

“The Trump administration is preparing to significantly limit the scientific and medical research that the government can use to determine public health regulations, overriding protests from scientists and physicians who say the new rule would undermine the scientific underpinnings of government policymaking,” The New York Times reported Tuesday. The article, based on a leaked preliminary draft supplemental notice of proposed rule-making, provoked a spate of denunciations.

“Let’s call this what it is: an excuse to abandon clean air, clean water, and chemical safety rules,” asserted a statement issued by Dr. Andrew Rosenberg, director of the Center for Science and Democracy at the Union of Concerned Scientists. In her opening statement at a hearing today, entitled “Strengthening Transparency or Silencing Science,” House of Representatives Science, Space, and Technology Committee Chairwoman Eddie Bernice Johnson (D–Texas) declared, “The requirement for data to be publicly available is nothing more than an attempt to undercut EPA’s mandate to use the best available science. I believe this is part of an effort to destroy regulations that protect public health but are opposed by some regulated industries.”

The draft notice is intended to supplement the Environmental Protection Agency’s proposed Strengthening Transparency in Regulatory Science Rule, published in the Federal Register last April. The draft states the proposed regulation is aimed at “ensur[ing] data and models underlying science that is pivotal to EPA’s significant regulatory decisions are publicly available in a manner sufficient for independent validation and analysis.” Among other things, the supplement attempts to clarify the meaning of various terms in the original proposed regulation.

Critics were particularly alarmed by the Times‘ interpretation that the new proposed regulations governing which scientific studies the EPA could use would be retroactively applied. In a press release today, the EPA asserts this claim is”completely false” and stresses that the draft cited by the Times‘ is not the one actually undergoing pre-publication interagency review by the Office of Management and Budget.

Back in 2015, I reported on the passage of the Secret Science Reform Act by the Republican majority in the House of Representatives. That bill similarly sought to limit the agency, in devising its regulations, to using scientific studies whose data are publicly available. As I observed then, “I do not doubt the cynical motives of some supporters of this bill, but I also do not doubt the equally cynical motives of its opponents.” Lamentably, the same situation applies to these proposed regulations.

“We are increasingly aware that researchers are not immune from selecting certain results which appear to support their hypothesis, and this may be especially true when the research has important policy implications,” notes Albert Einstein College of Medicine epidemiologist Geoffrey Kabat in an email. “For these reasons, the data from studies that are the basis for formulating regulations should be available to the research community for independent re-analysis.  This should not be regarded as some extreme demand – it should be a matter of course.”

Kabat continues, “But it’s crucial to add a caveat—the science regarding the health effects of air pollution and similar questions is difficult enough to get right without compounding the difficulties by allowing the science to be hijacked by politics – from either the Right or the Left.”

Surely everyone can agree that open science should be the default ​for research plans, data, materials, code, and outcomes for all science, not just science used by Federal regulatory agencies.

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Is Trump’s EPA Seeking To Gut Good Science?

“The Trump administration is preparing to significantly limit the scientific and medical research that the government can use to determine public health regulations, overriding protests from scientists and physicians who say the new rule would undermine the scientific underpinnings of government policymaking,” The New York Times reported Tuesday. The article, based on a leaked preliminary draft supplemental notice of proposed rule-making, provoked a spate of denunciations.

“Let’s call this what it is: an excuse to abandon clean air, clean water, and chemical safety rules,” asserted a statement issued by Dr. Andrew Rosenberg, director of the Center for Science and Democracy at the Union of Concerned Scientists. In her opening statement at a hearing today, entitled “Strengthening Transparency or Silencing Science,” House of Representatives Science, Space, and Technology Committee Chairwoman Eddie Bernice Johnson (D–Texas) declared, “The requirement for data to be publicly available is nothing more than an attempt to undercut EPA’s mandate to use the best available science. I believe this is part of an effort to destroy regulations that protect public health but are opposed by some regulated industries.”

The draft notice is intended to supplement the Environmental Protection Agency’s proposed Strengthening Transparency in Regulatory Science Rule, published in the Federal Register last April. The draft states the proposed regulation is aimed at “ensur[ing] data and models underlying science that is pivotal to EPA’s significant regulatory decisions are publicly available in a manner sufficient for independent validation and analysis.” Among other things, the supplement attempts to clarify the meaning of various terms in the original proposed regulation.

Critics were particularly alarmed by the Times‘ interpretation that the new proposed regulations governing which scientific studies the EPA could use would be retroactively applied. In a press release today, the EPA asserts this claim is”completely false” and stresses that the draft cited by the Times‘ is not the one actually undergoing pre-publication interagency review by the Office of Management and Budget.

Back in 2015, I reported on the passage of the Secret Science Reform Act by the Republican majority in the House of Representatives. That bill similarly sought to limit the agency, in devising its regulations, to using scientific studies whose data are publicly available. As I observed then, “I do not doubt the cynical motives of some supporters of this bill, but I also do not doubt the equally cynical motives of its opponents.” Lamentably, the same situation applies to these proposed regulations.

“We are increasingly aware that researchers are not immune from selecting certain results which appear to support their hypothesis, and this may be especially true when the research has important policy implications,” notes Albert Einstein College of Medicine epidemiologist Geoffrey Kabat in an email. “For these reasons, the data from studies that are the basis for formulating regulations should be available to the research community for independent re-analysis.  This should not be regarded as some extreme demand – it should be a matter of course.”

Kabat continues, “But it’s crucial to add a caveat—the science regarding the health effects of air pollution and similar questions is difficult enough to get right without compounding the difficulties by allowing the science to be hijacked by politics – from either the Right or the Left.”

Surely everyone can agree that open science should be the default ​for research plans, data, materials, code, and outcomes for all science, not just science used by Federal regulatory agencies.

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Joe Biden Has Officially Joined the Misguided Crusade Against Online Free Speech

In an effort to force Facebook to change its policy towards negative ads targeting his campaign, Democratic presidential candidate Joe Biden is apparently willing to trash the federal law that guarantees free speech online.

It’s the latest sign that even supposedly liberal centrist politicians are willing to join forces with the far right to rewrite the rules for online speech.

Biden’s campaign and Facebook have been feuding for weeks over Facebook’s policy of allowing political campaigns to buy ads on the site to spread possibly false information. In a letter to Facebook last month, Biden’s campaign called on the social media site to reject political ads containing “previously debunked content”—like a Trump campaign ad linking Biden and his son, Hunter, to corruption in Ukraine.

In response, Facebook CEO Mark Zuckerberg said the company’s policies were “grounded in Facebook’s fundamental belief in free expression, respect for the democratic process, and the belief that, in mature democracies with a free press, political speech is already arguably the most scrutinized speech there is.”

Apparently unsatisfied, Biden has stepped up his criticism of Facebook. On Monday night, the former vice president told a CNN town hall that he’d be willing to rewrite the rules for all online platforms in order to force social media companies to “be more socially conscious.”

“I just think it’s a little out of hand,” Biden continued. “And I, for one, think we should be considering taking away the exception that they cannot be sued for knowingly engaged on (sic), in promoting something that’s not true.”

The exemption that Biden is talking about is Section 230 of the Communications Decency Act. It is the First Amendment for the online world. Just 26 words long, Section 230 promises that online platforms will not be held liable for content provided by users or other publishers.

Biden knows all about Section 230, or at least he should. He voted for it in 1995.

But this is more than just a flip-flop on a decades-old vote. In calling for Section 230 to be rewritten or abandoned, Biden is giving cover to illiberal politicians who want to undermine the promise of digital free speech—and, in the process, give significant power to government to police speech online.

As Reason‘s Elizabeth Nolan Brown has written, the effort to carve away at Section 230 is backed by lawmakers on both the right and left. Sen. Josh Hawley (R–Mo.) and Sen. Kamala Harris (D–Calif.) are in many ways leading the effort, but Speaker of the House Nancy Pelosi (D–Calif.) has also voiced her support for making online platforms liable for content created by users.

In practice, stripping away Section 230 protections likely would result in platforms significantly restricting the content they would host. It would also create a different standard for websites that does not exist for other forms of media.

“Holding Facebook liable for a user’s false statement is like holding CNN liable if candidate Biden made a false statement on their Town Hall last night,” says Carl Szabo, vice president and general counsel for NetChoice, a nonprofit that favors digital free speech.

Indeed, newspapers and TV stations are not held liable for false statements made in campaign ads—which seems to be the standard Biden wants to impose on digital platforms—but are free to reject ads if they choose. Facebook and Google should be no different.

The internet didn’t create lying politicians or false political ads. It’s understandable that Biden is frustrated with Facebook’s policy toward ads targeting his campaign, but that’s not a good reason to scrap the federal policies that have allowed the internet to grow and prosper for decades. And since Biden had a hand in crafting that law in the first place, he really ought to know better.

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Joe Biden Has Officially Joined the Misguided Crusade Against Online Free Speech

In an effort to force Facebook to change its policy towards negative ads targeting his campaign, Democratic presidential candidate Joe Biden is apparently willing to trash the federal law that guarantees free speech online.

It’s the latest sign that even supposedly liberal centrist politicians are willing to join forces with the far right to rewrite the rules for online speech.

Biden’s campaign and Facebook have been feuding for weeks over Facebook’s policy of allowing political campaigns to buy ads on the site to spread possibly false information. In a letter to Facebook last month, Biden’s campaign called on the social media site to reject political ads containing “previously debunked content”—like a Trump campaign ad linking Biden and his son, Hunter, to corruption in Ukraine.

In response, Facebook CEO Mark Zuckerberg said the company’s policies were “grounded in Facebook’s fundamental belief in free expression, respect for the democratic process, and the belief that, in mature democracies with a free press, political speech is already arguably the most scrutinized speech there is.”

Apparently unsatisfied, Biden has stepped up his criticism of Facebook. On Monday night, the former vice president told a CNN town hall that he’d be willing to rewrite the rules for all online platforms in order to force social media companies to “be more socially conscious.”

“I just think it’s a little out of hand,” Biden continued. “And I, for one, think we should be considering taking away the exception that they cannot be sued for knowingly engaged on (sic), in promoting something that’s not true.”

The exemption that Biden is talking about is Section 230 of the Communications Decency Act. It is the First Amendment for the online world. Just 26 words long, Section 230 promises that online platforms will not be held liable for content provided by users or other publishers.

Biden knows all about Section 230, or at least he should. He voted for it in 1995.

But this is more than just a flip-flop on a decades-old vote. In calling for Section 230 to be rewritten or abandoned, Biden is giving cover to illiberal politicians who want to undermine the promise of digital free speech—and, in the process, give significant power to government to police speech online.

As Reason‘s Elizabeth Nolan Brown has written, the effort to carve away at Section 230 is backed by lawmakers on both the right and left. Sen. Josh Hawley (R–Mo.) and Sen. Kamala Harris (D–Calif.) are in many ways leading the effort, but Speaker of the House Nancy Pelosi (D–Calif.) has also voiced her support for making online platforms liable for content created by users.

In practice, stripping away Section 230 protections likely would result in platforms significantly restricting the content they would host. It would also create a different standard for websites that does not exist for other forms of media.

“Holding Facebook liable for a user’s false statement is like holding CNN liable if candidate Biden made a false statement on their Town Hall last night,” says Carl Szabo, vice president and general counsel for NetChoice, a nonprofit that favors digital free speech.

Indeed, newspapers and TV stations are not held liable for false statements made in campaign ads—which seems to be the standard Biden wants to impose on digital platforms—but are free to reject ads if they choose. Facebook and Google should be no different.

The internet didn’t create lying politicians or false political ads. It’s understandable that Biden is frustrated with Facebook’s policy toward ads targeting his campaign, but that’s not a good reason to scrap the federal policies that have allowed the internet to grow and prosper for decades. And since Biden had a hand in crafting that law in the first place, he really ought to know better.

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