Opinion | Judiciary

The case for internet originalism

The views expressed by contributors are their own and not the view of The Hill

Twitter finally lifted its suspension of the New York Post over its reporting on the laptop of Hunter Biden. The decision came two weeks after Twitter barred access to the story on his emails which contradict past statements of former Vice President Joe Biden. Twitter now admits that there was no evidence that the emails were fabricated or were the product of Russian disinformation, a conclusion reached by federal investigators.

Twitter cited a familiar argument to excuse its decision that its policies are "living documents" subject to continual change. That sounds a lot like an internet version of the theory used by jurists such as the late Justice Ruth Bader Ginsburg to update the meaning of the Constitution on a continual basis. This claim should turn every citizen into a strict internet originalist. But first a few established facts on the story should be noted.

No one has denied that these were the laptop and emails of Hunter Biden. Various senders and recipients of the emails have confirmed that they are real. The laptop was subpoenaed by federal investigators, who confirmed an ongoing probe that involves the emails. His former business associate also asserted that past denials from Joe Biden of knowledge in the family dealings are "lies" and shared such allegations with federal investigators, even under criminal penalty for making any false statements.

There is no evidence that the laptop or emails are false. Indeed, the only "disinformation" over this story seems to have come from Joe Biden and his allies. House Intelligence Committee Chairman Adam Schiff said the entire story was Russian disinformation, a claim repeated by Biden. But Twitter tried to bury the article by the New York Post that appears to be accurate over both the source and the content of the emails.

After dropping the suggestion of Russian disinformation, Twitter claimed the underlying material appeared to be hacked, which is ridiculous since the New York Post article was based on the contents from an abandoned laptop. Now the social media company states that its policies have to be read like a living Constitution. It has announced, "Our policies are living documents. We are willing to update and adjust these as we encounter new scenarios or receive important feedback from the public."

It is a move that would drive the late Justice Antonin Scalia to distraction. He rejected this method of interpretation as little more than opportunism to change the meaning of rights without having to ask for the consent of citizens through amendments. "You would have to be an idiot to believe that. The Constitution is not a living organism. It is a legal document that says some things and does not say other things," he declared.

That is a view shared by the new Justice Amy Coney Barrett who testified during her confirmation, "I interpret the Constitution as a law. I interpret its text as text. I understand it to have the meaning that it had at the time people ratified it. So that meaning does not change over time, and that is not up to me to update or infuse my own policy views into it."

I am not an originalist for the Constitution, but I am an originalist with the internet. The internet was the greatest single advancement in free speech since the printing press. It was an open platform for speech which united the world. It was also a threat to authoritarian leaders who have struggled to control and censor the sharing of ideas. Twitter started as the ultimate platform for free speech for it allowed individuals to connect with others and share instant observations and to debate different views.

Yet the initial unlimited use on the internet has come into conflict with liberal lawmakers who demand that social media sites actively prevent people from sharing information they believe is false or misleading. Joe Biden has demanded that social media sites block postings linking mail voting to fraud. House Speaker Nancy Pelosi has threatened legislation should they not stop the groups that spread disinformation.

Democrats ignored admissions by social media executives that they are wrong to bar the article and insisted that they increase such censorship. Senator Jacky Rosen warned that they have not done enough to prevent "conspiracy theories and hate speech" on the platforms. It is why "living internet" policies are dangerous. Technology firms are pushed by profits instead of principles. If Democrats can win control of Washington, social media sites will face greater demands for more censorship. That is when their policies will change as they "encounter new scenarios."

So the alternative to internet originalism is no censorship. If social media sites could return to their initial roles, there would be no slippery slope of opportunism. If Pelosi demanded that Verizon disrupt calls to stop people from making errant claims, there would be lots of backlash. Twitter serves the same function between consenting parties. It simply allows thousands of people to engage in online conversations. Those people do not sign up to share ideas only to have internet overlords monitor their conversations and protect them from several harmful or misleading views.

It has been years since a bunch of geniuses started Twitter. Its draw was convenience rather than supervision. Dorsey himself said the success of Twitter was based on the notion that you "make every detail perfect and limit the number of details to be perfect." The Constitution can offer the clarity of that meaning to limit the details to be perfect. To take from the First Amendment, Twitter should return to its position of originalism and make no policies which curtail free speech on the internet.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates online @JonathanTurley.

Outbrain