May 2020

May 30, 2020 5:36PM

In the Wake of George Floyd’s Death, All Eyes Turn to SCOTUS

This past Monday, George Floyd was killed by a police officer, Derek Chauvin, who pressed his knee against Mr. Floyd’s neck for over eight minutes, while Mr. Floyd and onlookers alike begged for the officer to stop and let Mr. Floyd breathe. George Floyd’s death was no aberrant act of random violence. Rather, as my colleague Clark Neily wrote earlier this week, Mr. Floyd was “the latest victim of our near‐​zero‐​accountability policy for law enforcement.” As such, I expect his death has been weighed with a special kind of gravity on One First Street, where the Justices of the Supreme Court deliberated this week on whether to reconsider qualified immunity—an atextual, ahistorical judicial doctrine that shields public officials from liability, even when they break the law.

Over the last several days, I have observed with grim satisfaction that reporters and commentators of all stripes have appropriately recognized the direct connection between qualified immunity and the senseless murder of George Floyd. For example:

  • The New York Times pulls no punches, running an editorial on the subject of “How the Supreme Court Lets Cops Get Away With Murder.” They correctly explain that, while there are a variety of reasons police officers are rarely held to account for their misconduct, “it is the Supreme Court that has enabled a culture of violence and abuse by eviscerating a vital civil rights law to provide police officers what, in practice, is nearly limitless immunity.”
  • Fox News also reports that “[t]he death of George Floyd at the hands of a Minneapolis police officer has done more than just trigger massive protests and riots—it’s brought a simmering debate on ‘qualified immunity’ for government officials to a veritable boil.” The Fox piece describes how qualified immunity has “come under fire even from judges on President Trump’s Supreme Court shortlist, like Fifth Circuit Court of Appeals Judge Don Willett,” who wrote in a 2018 concurring opinion that “[t]o some observers, qualified immunity smacks of unqualified impunity, letting public officials duck consequences for bad behavior—no matter how palpably unreasonable.”
  • At USA Today, Richard Wolf describes how “Legal immunity for police misconduct, under attack from left and right, may get Supreme Court review.” He notes that “[t]he brutal death of George Floyd at the hands of Minneapolis police has re‐​energized a national debate over misconduct by law enforcement officials that the Supreme Court may be poised to enter.”
  • Slate’s Mark Joseph Stern writes that “George Floyd’s killing by Minneapolis police officers shows the damage the court has wrought” through the doctrine of qualified immunity. He further explains how “[a]t their conference on Thursday, the justices will have an opportunity to begin unraveling the catastrophic case law that allows so many officers—including, apparently, Floyd’s killers—to murder civilians with impunity. The court has an obligation to fix what it broke.”
  • At Reason, C.J. Ciaramella writes that “The Supreme Court Has a Chance To End Qualified Immunity and Prevent Cases Like George Floyd’s,” and explains that the Court “could announce as early as Monday that it’s taking up several cases involving the doctrine.”

Suffice to say, when both the New York Times and Fox News have basically the same take on such a charged issue, it’s a good sign they’re onto something. On Monday morning, we’ll learn whether the Supreme Court intends to take the first step toward correcting the legal and moral perversities of qualified immunity. If the Court declines to address this issue now, it will not only be a shameful black mark on the Court’s reputation—it will also exacerbate what is already a severe crisis of confidence in law enforcement across the nation.

May 30, 2020 2:31PM

Anxiety, Despair, and the Coronavirus Pandemic

Public health interventions entail non‐​economic as well as economic trade‐​offs. Some trade‐​offs can involve other aspects of public health.

I have written about how blanket bans on elective medical procedures combine with the fear already infused in the public to cause crucial delays in necessary health care. This adds to human suffering from causes other than the COVID-19 virus. Many people with chronic conditions, particularly chronic pain patients, are disproportionately affected by reduced access to routine care. Then there’s the dramatic drop‐​off in the number of young children receiving crucial scheduled immunizations against much more dangerous pathogens, because parents, afraid of their children contracting COVID-19, have shied away from pediatricians’ offices. Yet often overlooked are the great number of people with anxiety and other mental health disorders whose conditions are also made worse–by fear along with lockdown‐​induced isolation and economic hardship.

A Kaiser Family Foundation poll early last month found nearly half of Americans stated the public health crisis is harming their mental health. A Disaster Distress Helpline run by the Substance Abuse and Mental Health Services Administration has seen a huge spike in calls since the crisis began. According to the Household Pulse Survey, jointly conducted by the National Center for Health Statistics and the Census Bureau, roughly 30 percent of Americans reported symptoms of anxiety disorder and 25 percent reported symptoms of depression disorder since mid‐​April. The pharmacy benefit management organization Express Scripts saw a spike of 34.1 percent in prescriptions filled for anti‐​anxiety medications between February and March, and reported “More than three quarters (78%) of all antidepressant, antianxiety and anti‐​insomnia prescriptions filled during the week ending March 15th (the peak week) were for new prescriptions.”

Substance use disorder, anxiety, depression, and other mental health problems are usually characterized by feelings of isolation and loneliness. “Shelter in place” orders can only exacerbate these feelings. Human interaction and a feeling of connection are integral to their recovery. While Zoom and other forms of remote meeting can help to a degree, they lack the intimacy and behavioral cues required for genuine connectedness.

Add to the effects of quarantine the anxiety and depression that result from loss of a business, loss of a job, and loss of savings and one can expect a spike in “deaths of despair” as a direct result of the public health crisis. The Centers for Disease Control and Prevention defines “deaths of despair” as “suicide, drug overdose, and alcohol‐​related deaths.” The Well Being Trust earlier this month released a study that examined the toxic combination of isolation with economic hardship and projected increases in deaths of despair using nine different scenarios. The study projected an increase of 27,644 deaths of despair with a quick economic recovery (smallest impact of unemployment), 154,037 with a slow recovery (greatest impact of unemployment), and an increase of 68,000 deaths with a mid‐​range scenario.

Government interventions to address a public health emergency might sometimes require blanket “one‐​size‐​fits‐​all” directives. When exercising this authority, consideration must be given to the trade‐​offs such policies entail. These trade‐​offs are often economic and can indirectly affect the social determinants of health. But policymakers must not lose sight of the fact that many of these trade‐​offs more directly concern crucial non‐​coronavirus components of public health. 

Former Cato intern Jimmy Schmitz assisted with the research for this blog post.

May 29, 2020 4:33PM

We Should “Confront” China by Liberalizing Chinese Immigration

The Chinese government’s crackdown on dissidents in Hong Kong is just another indication of that government’s rising totalitarianism. Vox’s Matt Yglesias wrote that the United States should let in any Hongkonger who wishes to leave – a proposal I agree with. However, the U.S. government is moving in the opposite direction. Not only has it virtually ended all immigration, including for those seeking refuge and asylum, but it will soon go further to limit the migration of Chinese students.

Senators Tom Cotton (R-AR) and Marsha Blackburn (R-TN) recently introduced the Secure Campus Act that “would prohibit Chinese nationals from receiving visas to the United States for graduate or post‐​graduate studies in STEM fields.” Their press release cites the single example of the arrest of Arkansas professor Simon Saw‐​Teong Ang for wire fraud, alleging that he failed to disclose ties to the Chinese government and Chinese firms when he applied for NASA grant money. The senators also write that “the Chinese Communist Party has long used American universities to conduct espionage on the United States.”

The Trump administration is expected to follow with an executive order to expel some Chinese students with ties to Chinese universities who are affiliated with the People’s Liberation Army (edit: Trump just signed an executive order doing just this). This will come on the heels of the Trump administration efforts that begun in June 2018 to restrict student visas for Chinese citizens studying in subjects with potential national security applications. The U.S. government imposed extra screening for students studying in fields related to the Chinese government’s Made in China 2025 plan and shortening the time period of visas related to aviation, robotics and advanced manufacturing from a maximum of five years to one year. The administration is edging toward a total ban on Chinese students.

The Chinese government and Chinese firms have engaged in industrial espionage and state‐​espionage in recent decades. There’s no doubt that some small number of foreign students have nefarious intent to steal valuable intellectual property from American firms and universities. But those firms and universities are the victims, and they think the benefits from welcoming Chinese students outweigh the costs. Many of them are strengthening security to prevent theft, but slamming the door shut is an extreme and destructive solution to a manageable problem.

The biggest challenge is getting universities to fully comply with the complex export controls that limit the sharing of potential national‐​security related advancements with countries that are potential adversaries of the United States – like China. The government’s focus on Chinese espionage, IP theft, and export of new inventions has led to some tragic career‐​ending prosecutions such as in the case of Xiaoxing Xi.

Xi was a Chinese‐​born American physics professor and former Chair of the Physics Department at Temple University. The government charged him with wire‐​fraud in May 2015, alleging that he sent designs for a pocket heater used in superconductor research to where? The DOJ dropped all charges against Xi after the co‐​inventor of the pocket heater showed that the designs Xi shared, as typical in academic collaboration, with Chinese researchers were not for a pocket heater or any other advanced technology. Temple University still placed Xi on administrative leave and he resigned his chairmanship position.

Undeterred by their embarrassment in the Xi case, the Department of Justice (DOJ) launched the China Initiative in 2018 to “identify and prosecute those engaged in economic espionage, trade secret theft, hacking and other economic crimes.” According to the DOJ, “about 80 percent of all economic espionage prosecutions … allege conduct that would benefit the Chinese state, and there is at least some nexus to China in around 60 percent of all trade secret theft cases.” We only have some of their China Initiative cases available, and a portion of them are troubling, but we the public needs to see all of them rather than a DOJ‐​selected list to evaluate how serious the threat is.

There are approximately 380,000 Chinese students studying in the United States out of the roughly 1.4 million foreign students here. About 171,000 of them were enrolled in science and engineering programs at U.S. universities. They are tightly monitored by both the government and universities. The Student and Exchange Visitor Program (SEVP), which monitors foreign students studying in the United States, has already “mitigated previously identified national security gaps … and is continuing to enhance the system” according to testimony by Louis A. Rodi III, the Immigration and Customs Enforcement acting assistant director in charge of enforcing visa rules. Their enrollment and attendance at universities is known in real time by the government, and the students lose their visas immediately if they don’t comply – a system of forced‐​compliance virtually unique amongst visas.

The justifications for the DOJ Chinese Initiative are intended to protect American innovation. But stopping the flow of Chinese students to STEM fields, as the Secure Campus Act would do, would undermine U.S. innovation. Despite being 1.5 percent of the U.S. population, Chinese immigrants and their descendants account for almost 9 percent of patents filed in the United States and 8.2 percent in computers, 8 percent in electrical, and 7.2 percent in chemicals.

Even the FBI agrees. “Most foreign students, researchers, or professors studying or working in the United States are here for legitimate and proper reasons,” said one FBI report from 2011 on security in U.S. universities. “Only a very small percentage is actively working at the behest of another government or organization.” Another FBI report from 2020 said that “[t]he vast majority of the 1.4 million international scholars on U.S. campuses pose no threat to their host institutions, fellow classmates, or research fields.”

The leak of some intellectual property by a few Chinese students and researchers is worth the gargantuan economic benefits of their tremendous contributions to U.S. innovation – to say nothing of the non‐​Chinese who also sell IP to China or other governments. The U.S. government should continue to try and limit industrial espionage and state‐​espionage, but halting or severely restricting Chines migration is akin to removing part of one’s brain to remedy an allergy‐​induced headache.

Rather than reducing Chinese immigration to combat China, the United States should drastically liberalize immigration. For decades, the best minds in China have left for freer and greener pastures abroad. The Chinese government is desperate to have them return as part of their central economic plan of becoming a leader in science and technology by 2050, which is the justification or their Thousand Talents Program that incentivizes Chinese scientists to return (sometimes with stolen IP) to study in China, often with large bonuses.

The Chinese government is even attempting to send recruiters overseas to entice Chinese students to return to reverse the brain drain in China. In part due to their decades‐​long and brutal one‐​child policy, the Chinese population is aging more rapidly than our own. By 2045, about a third of China will be 60 or older compared to about 22 percent in the United States.

This represents a golden opportunity to drain the best minds from China that will undermine their government’s efforts to have Chinese students and scientists return, as well as worsen their demographics while bettering our own. Every Chinese national with a college degree should be able to get a work permit or green card without numerical cap. Those studying in the United States state should be welcomed, allowed, and even encouraged to stay.

Chinese institutions and the Thousand Talents Program provide foreign scientists with signing bonuses up to $151,000 and research stipends ranging from $453,000 to $755,000 for established scientists over the age of 40. Even with those enticements, 90 percent of Chinese STEM doctorate recipients were still in the United States a decade after completing their studies. All the U.S. government has to do to wipe out the Chinese government’s talent recruitment efforts and raise that percentage even more is allow them to come to study, work, and live here with a minimum of bureaucratic fuss and the removal of arbitrary visa restrictions.

Efforts by Tom Cotton and the Trump administration are inspired by legitimate national security considerations. They’re rightly worried about Chinese espionage, but their solutions will only strengthen the Chinese state. The example of the U.S. returning Chinese immigrant Qian Xuesen to China should provide a cautionary tale. Xuesen immigrated from China and earned his Ph.D. from Cal Tech in 1939. He was a pioneer in cybernetics, aerospace engineering, and physics. He was involved with the Manhattan Project and designing American rockets. Theodore von Karman, legendary aerospace engineer, mathematician, and physicist, pronounced Xuesen an “undisputed genius.”

During the Cold War, Xuesen was accused of being a Communist on flimsy evidence. He lost his security clearances and his career options limited. He decided to return to China and was detained by U.S. authorities for five years under house arrest after the government claimed that he was trying to smuggle out classified documents. Subsequent examination of the documents showed they contained no classified material. Eventually Xuesen was traded to China in exchange for downed American pilots.

In China, Xuesen helped lead the Chinese nuclear weapons program and their missile program, earning the moniker “Father of Chinese Rocketry.” Undersecretary of the Navy Dan A. Kimball, who knew Xuesen personally, said “It was the stupidest thing this country ever did. He was no more a Communist than I was, and we forced him to go.” How many other brilliant Chinese scientists like Xuesen will the U.S. government turn back or force to leave because of the fear of IP theft and espionage? While real concerns, the threat from espionage is trivial in comparison to the known cost of keeping thousands of Chinese scientists and engineers in China.

It’s no secret that many policymakers in the United States and the People’s Republic of China want a new Cold War. Trade restrictions, espionage, and military buildups in both countries are moving in that direction. Except for Xuesen, the United States government welcomed people fleeing Communist countries and reformed its entire refugee and asylum program to do so. The U.S. government likely reformed the entire immigration system in 1965 in response to the Cold War. The Communist countries had to impose draconian emigration restrictions to keep their people from fleeing. Many Chinese, including some of their top minds, would jump at the opportunity to study, work, and live in the United States. For the benefits of our own economy and national security as well as for the sake of Chinese citizens seeking freedom, we should welcome them rather than throw up new barriers.

May 29, 2020 9:43AM

Private School COVID-19 Permanent Closure Tracker — May 29, 2020

44 private schools have announced that they are closing permanently, at least in part due to the COVID-19 economic downturn, up from 33 in last week’s update. Enrollment in the closing schools, which in a few cases is estimated, is 6,204, up from 5,690 last week. Were all of these students to go to public schools, and had none been part of publicly connected school choice such as voucher programs or scholarship tax‐​credits, the new cost to the public purse would be roughly $96,000,000 ($15,424 per student multiplied by 6,204).

Private school permanent closure 5/29/20

As always, the list is expected to grow as schools learn more about the impact of the economic downturn on enrollment and income for the coming school year. We will ordinarily post an update on Cato’s blog every Friday, but if the list reaches 100 schools we may transition to an online, searchable format. You can contact CEF director Neal McCluskey if you need more current numbers, if you know of permanent closures not on the list, or if you believe schools have been listed by mistake. We also welcome suggestions for improving the list.

May 28, 2020 1:04PM

Regarding a “Strategic Approach” to China

On any given day, my inbox is filled with opinion pieces on U.S.-China relations. A number warn “the U.S. doesn’t need a cold war” or that “a cold war with China would be a mistake.” Others seem to have concluded that we’re already in one, so we’d better get serious about fighting it.

After reading the Trump administration’s “United States Strategic Approach to the People’s Republic of China” – a 16‐​page document issued before the current crackdown on Hong Kong, and apparently drafted even before the COVID-19 outbreak (as it is barely mentioned) – I took a step back.

Prompted by a timely Tweet over the weekend, I thought, “What word best describes US strategy?”

Hubristic, i.e. “excessive pride or self‐​confidence”; misplaced arrogance; the absence of humility.

At times, the Trump administration’s approach to China reflects a sense, not unique to the current occupant of 1600 Pennsylvania Avenue, that we can simply demand obedience from others, and expect that nearly all will comply.

That is what power is actually all about: The ability to produce an effect.

We often confuse power with strength — which we have a lot of. And, since we have the most capable military and the largest economy in the world, we come up with excuses when we don’t get what we want. It must be because our leaders are stupid, or we’re not trying enough, or the other guy is cheating.

That isn’t the case. The better interpretation is that our strength is not synonymous with power. Or, even more precisely, the type and amount of power that we have is insufficient to obtain all of the things that we want.

It turns out that trying to run the entire world with less than 5 percent of its population and less than a quarter (and perhaps as little as 15 percent) of its economic output is really hard — and, indeed, impossible.

U.S. foreign policy makers struggle to get their heads around this fact. No phrase in the Trump strategy document better captures this arrogance than the following:

“our vision of a free and open Indo‐​Pacific region does not exclude China”

Imagine a statement like that for any other region of the world:

“our vision of Africa does not exclude Nigeria”

“our vision for South America does not exclude Brazil”

“our vision for Europe does not exclude Germany — or Russia”

We, the United States of America, have concluded that China gets to be included in the Asia‐​Pacific region.

——-

Contrast that concession (if it can be called that) with the underlying assumptions of the previous cold war. There was, after all, a refreshing clarity to what containment of the Soviet regime aimed for: the collapse of the communist government in Moscow, and throughout the Soviet republics, plus the demise of Moscow’s proxies in Eastern Europe and in the so‐​called Third World. The architects of that strategy thought that the entire system would fall of its own weight, so long as it was contained. Eventually, the Soviet Union would just go away.

The Trump administration’s “strategic approach” claims to not want that for China. Indeed, it is quite explicit on that score. e.g. “Our approach is not premised on determining a particular end state for China” or “We do not seek to contain China’s development.”

But the tenor of the document suggests that the nature of the Chinese regime is so fixed, and the scale of its crimes against humanity so grave, that, from a practical perspective, very little accommodation is possible or should be allowed. (And, again, the document was written before the Trump administration changed course on Hong Kong in order to pressure Beijing for its actions, and also before Beijing’s worrisome change in tone vis‐​à‐​vis Taiwan.)

That harsher stance toward China, reflecting an inability to reconcile with Beijing, is reflected in a memo by the National Republican Senatorial Committee, which advised candidates “Don’t defend Trump, other than the China Travel Ban — attack China.” Former Vice President Biden reportedly aims to “out‐​tough” Trump on China in the coming presidential campaign.

This makes me very nervous. But I’m not the only one.

I happened to tune into a discussion with investor and philanthropist David Rubenstein hosted by Atlantic Council President and CEO Frederick Kempe. In addition to being a very generous supporter of a number of causes, Rubenstein is also a great interviewer. During the Atlantic Council discussion, it was a little hard to figure out who was the interviewer and who was the interviewee.

But, at one point, Kempe asked Rubenstein about China. The Atlantic Council summarized the exchange:

“This is by far the most important bilateral relationship in the world,” [Rubenstein] said, expressing fear that Washington‐​Beijing ties will worsen before they improve. “You’re going to see people blaming China for a lot of what’s happened. Whether that’s fair or not is another issue, but people running for office won’t see any downside politically. I think it’s important that we not let political exigencies overcome us, and make sure this relationship stays intact.”

There’s no question, he said, that China is playing a much bigger role in Europe, Latin America, Africa, and the Middle East than it did thirty years ago. But that makes perfect sense from the Chinese point of view…considering that for much of world history, China was the world’s dominant political and economic superpower.

“It’s only in the last 100 years or so they’ve fallen down. Now they’re just regaining their rightful position,” he said, noting that this has coincided with a sharp drop in US influence. “After World War II, we were 50 percent of the world’s gross domestic product (GDP). Today we’re at 18 percent. We just cannot do the things we once could afford to do, and politically we can’t get away with it.”

I wish more foreign policy experts approached the question — what to do about China? — from that perspective.

A strategic approach to any problem must be oriented around reasonable expectations. In the case of China, that starts with the realization that China — unlike the Soviet Union — isn’t going to just go away.

May 28, 2020 12:51PM

Trump’s Social Media Order Rewrites Internet Law by Decree

Author’s Note: This post originally concerned a draft executive order. What follows is a discussion of the final order. The original analysis can be found below that.

Yesterday, I wrote about a draft of the President’s executive order, which he went on to sign in the afternoon. The White House released a final version of the order last night. It differs significantly from the draft in verbiage, though not in effect.

In some instances, the language has been watered down. However, crucially, the final order contains the same unsupported contention that the protections offered by 230 (c)(1) are contingent upon platforms moderating in accordance with some stricter understanding of (c)(2)(A).

It is the policy of the United States to ensure that, to the maximum extent permissible under the law, this provision is not distorted to provide liability protection for online platforms that — far from acting in “good faith” to remove objectionable content — instead engage in deceptive or pretextual actions (often contrary to their stated terms of service) to stifle viewpoints with which they disagree.

It is the policy of the United States that the scope of that immunity should be clarified: the immunity should not extend beyond its text and purpose to provide protection for those who purport to provide users a forum for free and open speech, but in reality use their power over a vital means of communication to engage in deceptive or pretextual actions stifling free and open debate by censoring certain viewpoints.

In some ways, these claims are more limited than those in the draft. However, the “distortion” and “extension” of Section 230 described in the final order is, in fact, the longstanding, textually supported reading of the law. As I outlined yesterday, (c)(1) and (c)(2)(A) protections are separate. It is not an extension of the law to apply them separately, and any “clarification” otherwise would amount to an amendment.

Confusingly, the final order contains a paragraph that might more strongly assert a connection between the first and second subsections; however, the second time it refers to (c)(2)(A), it does so in a context in which only (c)(1) would make sense:

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.

The liability faced by traditional publishers, which prescreen material rather than moderating ex‐​post, is foreclosed by (c)(1), not (c)(2)(A). If, as is likely, this line was meant to reference (c)(1), the order more stridently misinterprets Section 230. The protections offered by the first and second subsections are entirely separate, making the President’s directive to NTIA, instructing them to petition the FCC to examine connections between (c)(1) and (c)(2)(A), facially absurd.

… requesting that the FCC expeditiously propose regulations to clarify: (i) the interaction between subparagraphs (c)(1) and (c)(2) of section 230, in particular to clarify and determine the circumstances under which a provider of an interactive computer service that restricts access to content in a manner not specifically protected by subparagraph (c)(2)(A) may also not be able to claim protection under subparagraph (c)(1), which merely states that a provider shall not be treated as a publisher

There are no circumstances under which a provider that restricts access in a manner unprotected by (c)(2)(A) loses (c)(1) protections. (c)(1) protections are lost when a platform authors content, making it the platform’s content rather than that of a third party. (c)(1) is not in any way contingent on (c)(2)(A). The order invites the FCC to make a miraculous discovery completely at odds with settled law or return a pointless null result.

Finally, the order directs the FTC to investigate platforms for moderating in a manner inconsistent with their stated terms of service:

The FTC shall consider taking action, as appropriate and consistent with applicable law, to prohibit unfair or deceptive acts or practices in or affecting commerce … Such unfair or deceptive acts or practice may include practices by entities covered by section 230 that restrict speech in ways that do not align with those entities’ public representations about those practices.

Platform terms of service or community standards are not binding contracts. They lay out how a platform intends to govern user speech but often change in response to new controversies, and automated moderation at scale is frequently imprecise. In light of Trump’s recent personal spats with social media firms, any subsequent FTC action may appear politically motivated.

In sum, the order makes a number of sweeping, unfounded claims about the breadth and intent of Section 230. The declarations of government policy are concerning: “all executive departments and agencies should ensure that their application of section 230(c) properly reflects the narrow purpose of the section.” However, the administration’s proposed interpretation is so at odds with a plain reading of the statute and controlling precedent that courts are unlikely to uphold decisions based on this official misinterpretation.

The order’s substantive elements require action on the part of the FCC and FTC. Their response will largely determine the order’s scope and effect. The FCC could nonsensically determine that (c)(1) had been contingent on (c)(2)(A) all along and the FTC could aggressively pursue tech firms for moderation inconsistent with their terms of service but, given the likelihood of judicial resistance, a hard‐​charging response is improbable. Like so much else from the Trump administration, it may turn out to be another order full of sound and fury that ultimately delivers nothing in the way of substantive change. Nevertheless, even if the order is ineffective, it represents a worrying belief that the President can twist and reinterpret even long‐​settled law to fit his political agenda.


President Trump has escalated his war of words with America’s leading technology firms. After threatening to “close down” social media platforms, he announced that he would issue an executive order concerning Section 230 of the Communications Decency Act, a bedrock intermediary liability protection for internet platforms. However, a draft of the forthcoming executive order seems to slyly misunderstand Section 230, reading contingency into its protections. Let’s take a look at the statute and the relevant sections of the proposed executive order to see how its interpretation errs.

(c) Protection for “Good Samaritan” blocking and screening of offensive material

(1) Treatment of publisher or speaker

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.

(2) Civil liability

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

  1. 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 (1).

The statute contains two parts, (c)(1) and (c)(2). Subsection (c)(1) prevents providers of an “interactive computer service,” be they Twitter, or a blog with a comments sections, from being treated as the publisher of their users’ speech. 230 (c)(2) separately addresses providers’ civil liability for actions taken to moderate or remove content.

The executive order obfuscates this distinction, presenting (c)(1) as contingent on (c)(2). The EO contends that “subsection (c)(2) qualifies that principle when the provider edits content provided by others.” This is simply incorrect. Subsection (c)(2) protects platforms from a different source of liability entirely. While the first subsection stops platforms from being treated as the publishers of user speech, (c)(2) prevent platforms from being sued for filtering or removal. Its protections are entirely separate from those of (c)(1); dozens of lawsuits have attempted to treat platforms as the publishers of user speech, none have first asked if platforms’ moderation is unbiased or conducted in good faith. Even if a provider’s moderation were found to breach the statute’s “good faith” element, it would merely render them liable for their moderation of the content in question, it wouldn’t make them a publisher writ large.

The executive order makes its misunderstanding even more explicit as it orders the various organs of the federal government to similarly misinterpret Section 230.

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. By making itself an editor of content outside the protections of subparagraph (c)(2)(A), such a provider forfeits any protection from being deemed a “publisher or speaker” under subsection 230(c)(1), which properly applies only to a provider that merely provides a platform for content supplied by others. It is the policy of the United Sates that all departments and agencies should apply section 230(c) according to the interpretation set out in this section.

The order goes on to direct the National Telecommunications and Information Administration to petition the FCC, technically an independent agency, to promulgate regulations determining what sort of moderation breaches the good faith aspect of (c)(2), and, according to the administration’s erroneous reading of the statute, triggers the forfeiture of (c)(1) protections against being treated as a publisher.

Clearly, none of this is actually in Section 230. Far from expecting websites to “merely provide a platform,” (c)(2)(A) explicitly empowers them to remove anything they find “otherwise objectionable.” Our president seems to have decided that Section 230(c)(1) only “properly applies” to social media platforms that refrain from responding to his outlandish claims. Republicans might want to amend Section 230 so that it only applies to conduit‐​like services, however, any attempt to do so would face stiff opposition from democrats who want platforms to moderate more strictly. Like Obama before him, President Trump may have a pen, but he cannot rewrite statutes at will. As drafted, his order’s reasoning is at odds with congressional intent, a quarter century of judicial interpretation, and any reasonable reading of the statute’s plain language.

May 27, 2020 9:51PM

George Floyd’s Death Must Be a Catalyst for Accountability

The scene is horrifying, yet all too familiar. In a viral video from Minneapolis on Monday, a white police officer presses his knee against the neck of a handcuffed, unresisting black man who begs him to get off, then loses consciousness and later dies. Meanwhile, another officer stands guard between his partner and protesting onlookers, ensuring that no one can come to the aid of the dying man. The man’s name is George Floyd, and he is the latest victim of our near‐​zero‐​accountability policy for law enforcement.

On Thursday, May 28, the Supreme Court can decide whether to take the first step towards eliminating the cornerstone of that policy, a judicially invented legal doctrine called “qualified immunity.” Mr. Floyd’s killing by Minneapolis police provides a grim reminder that for some people, it is literally a matter of life and death. 

Enacted in 1871 and referred to as Section 1983 after its placement in the U.S. Code, America’s primary civil rights law provides that police and other state actors “shall be liable” to the person injured for “the deprivation of any rights.” On its face, Section 1983 creates a standard of strict liability for police and other public officials who violate people’s constitutional rights, including the right to be free from the unreasonable use of force. But in a tragic and legally baseless act of judicial policymaking, the Supreme Court radically altered that standard by holding that the right in question must be “clearly established.” And thus was born the doctrine of qualified immunity. 

In practice, what the “clearly established” gloss on Section 1983 requires is for would‐​be civil rights plaintiffs to identify a relevant case in the same jurisdiction with nearly identical facts. Thus, if Mr. Floyd’s family wants to sue the officer who took his life, they will need to find an existing case from the Eighth U.S. Circuit Court of Appeals holding that a police officer may not kneel on a unresisting suspect’s neck, ignoring his pleas for help, until he passes out. If no such case happens to be on the books, their case will be summarily tossed out of court. Such is the perversity of the Supreme Court’s qualified immunity doctrine.

Among qualified immunity’s most pernicious effects is the way it appears to provide a judicial imprimatur for indisputably wrongful conduct, like bringing the full weight of one’s body to bear on the neck of a prone and helpless human being. Indeed, the Supreme Court recently let stand an Eighth Circuit decision dismissing, on qualified immunity grounds, a Section 1983 case against a Nebraska officer who picked up a five‐​foot‐​tall, unarmed woman clad only in a bathing suit and drove her head‐​first into the ground, knocking her unconscious and breaking her collarbone—not because it was lawful for him to do so, but rather because there happened to be no case on point with precisely those facts. 

This is madness. Fresh from the horrors of the Civil War, Congress was well aware of how indifferent and even hostile many government officials were to the rights of African Americans when it enacted Section 1983. There are ten qualified‐​immunity cases pending before the Supreme Court, which may decide Thursday whether to accept any of those cases for review and ensure that judicial interpretation of Section 1983 remains faithful to congressional intent. The senseless brutalization of George Floyd, along with countless others, reminds us that this is not just a legal but a moral imperative.