Jan 12, 2021 | Politics
In the lead WSJ editorial, Donald Trump’s Final Days, the WSJ Editorial Board writes that Trump’s actions are impeachable, but instead for the good of the country who should resign:
In concise summary, on Wednesday the leader of the executive branch incited a crowd to march on the legislative branch. The express goal was to demand that Congress and Vice President Mike Pence reject electors from enough states to deny Mr. Biden an Electoral College victory. When some in the crowd turned violent and occupied the Capitol, the President caviled and declined for far too long to call them off. When he did speak, he hedged his plea with election complaint.
This was an assault on the constitutional process of transferring power after an election. It was also an assault on the legislature from an executive sworn to uphold the laws of the United States. This goes beyond merely refusing to concede defeat. In our view it crosses a constitutional line that Mr. Trump hasn’t previously crossed. It is impeachable.
[…]
But impeachment so late in the term won’t be easy or without rancor. It would further enrage Mr. Trump’s supporters in a way that won’t help Mr. Biden govern, much less heal partisan divisions. It would pour political fuel on Wednesday’s dying embers.
All the more so because Democrats aren’t likely to behave responsibly or with restraint. They are already stumping for impeachment articles that include a litany of anti-Trump grievances over four years. Mrs. Pelosi’s ultimatum Thursday that Mr. Pence trigger the 25th Amendment or she’ll impeach also won’t attract GOP votes.
Democrats would have more impeachment credibility now if they hadn’t abused the process in 2019. A parade of impeachers that includes Russian-collusion promoters Reps. Adam Schiff and Jerrold Nadler would repel more Americans than it would persuade. The mission would look like political revenge, not constitutional enforcement—and Mr. Trump would play it as such until his last breath.
According to former assistant attorney general of the District of Columbia, 2007-09, Mr. Jeffrey Scott Shapiro “Inflaming emotions isn’t a crime. The president didn’t mention violence, much less provoke it.” Writes Shaprio in an opinion piece titled “No, Trump Isn’t Guilty of Incitement” (WSJ):
The president didn’t commit incitement or any other crime. …. Hostile journalists and lawmakers have suggested Mr. Trump incited the riot when he told a rally that Republicans need to “fight much harder.” Mr. Trump suggested the crowd walk to the Capitol: “We’re going to cheer on brave senators and congressmen and -women, and we’re probably not going to be cheering so much for some of them. Because you’ll never take back our country with weakness. You have to show strength and you have to be strong.”
The president didn’t mention violence on Wednesday, much less provoke or incite it. He said, “I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard.”
District law defines a riot as “a public disturbance . . . which by tumultuous and violent conduct or the threat thereof creates grave danger of damage or injury to property or persons.” When Mr. Trump spoke, there was no “public disturbance,” only a rally. The “disturbance” came later at the Capitol by a small minority who entered the perimeter and broke the law. They should be prosecuted.
The president’s critics want him charged for inflaming the emotions of angry Americans. That alone does not satisfy the elements of any criminal offense, and therefore his speech is protected by the Constitution that members of Congress are sworn to support and defend.
Read the rest here.
The last-minute spectacle of the Democrats trying to impeach Trump in his last days of office will only satisfy the emotions of Trump haters while making him a martyr to his religious followers.
The best response is for GOP Republicans to disown him completely and for the press to ignore his antics.
Trump does not mind being hated, cursed at, and talked about. This is par for his course.
What Trump fears most is being ignored.
Recommended Reading:
Jan 6, 2021 | Politics
“Last-minute changes to longstanding election rules risk other problems too, inviting confusion and chaos and eroding public confidence in electoral out-comes” – Supreme Court Justice Gorsuch
Ron Pisaturo recently commented on the “burden of proof” regarding the U.S. 2020 Presidential Election. He writes:
“The burden of proof should always be on those who seek to certify an election. That burden is especially difficult in a close election. That burden has not been met in the 2020 election for President.
“In a year when the number of mail-in ballots increased by an order of magnitude, safeguards should have been increased. Instead, the safeguards were reduced. Indeed, state officials went so far as to circumvent state law in order to reduce safeguards. Requirements for voter and witness signatures were reduced or eliminated. Requirements for voters receiving blank ballots by mail were reduced or eliminated. Requirements for dropping off completed ballots were reduced or ignored. Regional counting centers were set up for the first time, requiring more transit of ballots, and allowing for enormous counting rooms so that official observers could be corralled far away from the action they were entitled to observe—yet still be told that they could not complain because, after all, they were in the room.
Evidence of illegal votes—minors voting, non-citizens voting, non-residents of states voting, individuals voting more than once, individuals without residential addresses voting, late votes being counted, broken chains of custody of ballots—has been identified, impacting many thousands of votes, far more than the slim margins of victory in more than enough states to swing the election. Instead of investigating this evidence, state officials have ignored it, or—worse—have obstructed investigations into this evidence.
“Hundreds if not thousands of sworn affidavits have testified to violations of election law or to outright fraud, again impacting many more votes than the margins of victory in various states. Instead of investigating these allegations, state officials have ignored them and obstructed attempts to investigate these allegations.
“The courts have mainly refused to consider the evidence, on the grounds of standing or laches. Plaintiffs were deemed either too early, with no harm yet inflicted, or too late. Three Wisconsin Supreme Court Justices who actually considered evidence decided in favor of President Trump. But in most cases, when courts did consider evidence, the standard of evidence applied was that of a criminal case—though plaintiffs had a tiny fraction of the time usually needed in a criminal prosecution, and in the absence of investigation or even cooperation by law enforcement and other government agencies. This posture by the courts gets wrong the burden of proof in this matter. The certifying of an election is a positive act, requiring proof of diligence in upholding the law to secure the election.”
Mr. Pisaturo argues later that based on this line of reasoning, “State legislatures, elected by the people, could select electors. The U.S. House, elected by the people, could elect the President.”
You can read the full post here.
Though I agree that the removal of election safeguards may have determined the final election result, I’m afraid I have to disagree with his remedy as the over-turning of results requires legal proof of fraud.
That there may be fraud is not legal proof that there is fraud
I agree that the “ad hoc” rule changes imposed by Democrat activists via judicial activism in the courts have enabled the ability to commit and hide massive fraud and may have determined the election’s outcome. However, I disagree that the election results declaring Biden-Harris the winner should be over-turned as it has not been legally proven that fraud determined the election result.
In this article, I will only be dealing with the Democrats opening “the door to fraud” in various states before the election by various “ad hoc” election rule changes that reduced or eliminated election fraud safeguards. I will not be making any comments on the allegations of actual fraud committed during the election (which would require at bare minimum a thorough review of all the court cases and associated evidence).
Biden’s chief virtue in this election was that he was not Donald Trump.
To set some context, though I was pulling for the Democrats to lose, I thought Trump would lose the election without “last-minute changes to longstanding election rules, “so I have no “skin in the game” in this respect. Like, Hilary Clinton, Trump’s unpresidential personality (watch the first 2020 Presidential debate if you can stomach it) created a large block of voters who would vote for an imaginary candidate to ensure Trump did not get elected.
For many Democrats and “Never Trump” Republicans, Biden was not an ideal candidate. Biden’s chief virtue in this election was that he was not Donald Trump. It is Donald Trump who made a non-entity as Joe Biden becoming President possible.
As I was picking, though not pulling for, Biden-Harris to win (I am not pro-Trump, as much as anti-Democrat), my issue in this article is not with the election outcome but with the means of achieving it.
Last-minute (“ad-hoc”) changes to long-standing elections rules decreased election integrity
One issue I have with the ad-hoc rule changes regarding the implementation of universal (as opposed to absentee) mail-in voting is that it permits ‘ballot harvesting’ that makes it near impossible to detect certain kinds of fraud.
What is to stop someone from creating ballots for those who do not vote, or creating ballots that had a different candidate selected and switching them in, or simply destroying ballots in between the point of voter drop off and receipt at the counting station? Recounting would not detect fraud of this kind.
In the case of creating fake ballots for mail-in voters, such fraud would not be detected unless a voter who was not expected to vote in person finds out that they had already voted by mail when they appear at the polling station on election day. To detect such fraud would require a year-long discovery investigation — and even then, it could come up inconclusive.
Last-minute (“ad-hoc”) changes were not justified because of the pandemic
Given Fauci’s declaration that in-person voting is as safe as going to the supermarket so long as one observes social distancing guidelines and wears a mask (and isn’t the Democrat party the party of masks?), the “because COVID” excuse for these changes is groundless. Such game-rigging brings up the aphorism: “Our ends are noble, therefore by any means necessary.”
The problem with the new “universal” vs. traditional “absentee” mail-in ballots: fewer safeguards against fraud
As John R. Lott pointed out (months before the election) in “Why Do Most Countries Ban Mail-In Ballots?: They Have Seen Massive Vote Fraud Problems “:
“Thirty-seven states have so far changed their mail-in voting procedures this year in response to the Coronavirus. Despite frequent claims that President Trump’s warning about vote fraud/voting buying with mail-in ballots is “baselessly” or “without evidence” about mail-in vote fraud, there are numerous examples of vote fraud and vote-buying with mail-in ballots in the United States and across the world. Indeed, concerns over vote fraud and vote buying with mail-in ballots causes the vast majority of countries to ban mail-in voting unless the citizen is living abroad.
“There are fraud problems with mail-in absentee ballots but the problems with universal mail-in ballots are much more significant. Still most countries ban even absentee ballots for people living in their countries.
“Most developed countries ban absentee ballots unless the citizen is living abroad or require Photo-IDs to obtain those ballots. Even higher percentages of European Union or other European countries ban absentee for in country voters. In addition, some countries that allow voting by mail for citizens living the country don’t allow it for everyone. For example, Japan and Poland have limited mail-in voting to those who have special certificates verifying that they are disabled.
“France has made an exception this year to the ban on absentee ballots to those who are sick or at particular risk during the Coronavirus pandemic. Poland and two cities in Russia have adopted mail-in ballots for elections this year only, but most countries haven’t changed their regulations.
“France banned absentee voting in 1975 because of massive fraud in Corsica, where postal ballots were stolen or bought and voters cast multiple votes.”
His entire paper is worth reading to understand the problems with universal mail-in ballots as presently implemented.
Kimberly Strassel also notes:
“…the beauty of ballot harvesting is that it is nearly impossible to prove fraud. How many harvesters offered to deliver votes, only to throw away inconvenient ones? How many voters were pushed or cajoled, or even paid–or had a ballot filled and returned for them without their knowledge? And this is before questions of what other mischief went on amid millions of mailed ballots (which went to wrong addresses or deceased people) and reduced voter verification rules.” [See Kimberley Strassel: The 2020 Election “Fix”.]
The “fraud” was in the rule changes that enabled mail-in voting without the proper checks and safeguards
How does the voter – or a third party – determine that a mail-in universal ballot was actually for the candidate the voter chose? Under the present set-up in the 2020 election, one cannot verify a valid result without letting the voter view his mail-in universal ballot and verifying its’ accuracy (assuming the ballot has not already been destroyed). No such mechanism (such as blockchain) was put in place to go along with the ad-hoc rule changes.
Such ad-hoc rules make the same criminal standard “onus of the proof” under in-person voting to show fraud inapplicable as the “fraud” was in the rule changes. Under such an arrangement with the greater potential of fraud built-in, the “burden of proof” for indicating fraud with universal ballots needs to be different from those used with in-person voting (and absentee balloting).
Most courts have applied the principle of standing or laches to dismiss such claims of fraud by Trump supporters without further investigation (on procedural and not substantiative grounds), though not without minority judge opposition. Laches is “the legal doctrine that an unreasonable delay in seeking a remedy for a legal right or claim will prevent it from being enforced or allowed if the delay has prejudiced the opposing party. The doctrine is an equitable defense that seeks to prevent ‘legal ambush’ from a party who is negligent in failing to timely make a claim.” Read a key Wisconsin election court case to understand how this was applied.
The chaos created by “last minute” election rule changes erodes public confidence
The ad-hoc election rule changes pushed on by Democrat activists, administrators, and judges using COVID as an excuse to conspire together against the will of elected state legislatures were unnecessary and have given Trump an avenue to claim the election was stolen from him.
Supreme Court Justice Gorsuch predicted such a contested outcome before the election:
“The Constitution provides that state legislatures—not federal judges, not state judges, not state governors, not other state officials—bear primary responsibility for setting election rules. Art. I, §4, cl. 1. And the Constitution provides a second layer of protection too. If state rules need revision, Congress is free to alter them. Ibid. (“The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations . . .”). Nothing in our founding document contemplates the kind of judicial intervention that took place here, nor is there precedent for it in 230 years of this Court’s decisions.”
[…]
The clamor for judges to sweep in and address emergent problems, and the temptation for individual judges to fill the void of perceived inaction, can be great. But what sometimes seems like a fault in the constitutional design was a feature to the framers, a means of ensuring that any changes to the status quo will not be made hastily, without careful deliberation, extensive consultation, and social consensus. [See: U.S. Election 2020: Last Minute Rule Changes Responsible For Election Confusion, Chaos and Low Public Confidence in Results.]
Gorsuch presents additional arguments on why this was an inappropriate use of judicial activism to rewrite election law (see Tara Smith’s insightful editorial on the appropriate use of judicial activism). Continues Gorsuch:
“Last-minute changes to longstanding election rules risk other problems too, inviting confusion and chaos and eroding public confidence in electoral out-comes. No one doubts that conducting a national election amid a pandemic poses serious challenges. But none of that means individual judges may improvise with their own election rules in place of those the people’s representatives have adopted.”
One post-election Rasmussen poll indicated that “Sixty-two percent (62%) of Republicans say it’s Very Likely the Democrats stole the election, a view shared by 17% of Democrats and 28% of voters not affiliated with either major party.” Trump sycophants would naturally agree with Trump’s claims of election fraud, but I find it remarkable that in this poll, nearly 1 in 5 Democrats “think the Democrats stole the election.”
That is a considerable erosion of confidence.
Given that Biden-Harris won under such a “set up,” the 2020 Presidential election’s validity will always be questioned. This is unfortunate.
Restoring election confidence and integrity
I am not saying the election was stolen. I’m saying I don’t know as the appropriate “checks and balances” provided by “longstanding election rules” were removed in this election. As I wrote previously:
“The mass fraud did not happen on election day; it happened much before.
“The “fraud” or “fix” was in the rules of the game before the election even began.
“In an election based on objectively valid rules, the onus of the proof for election fraud requires one to produce positive evidence of fraud.
“But for an election based on invalid rules – which reward fraud and help hide it – does the same principle apply? Is objectivity in evaluating the results of an election with non-objective rules even possible? It is uncertain that the kind of investigations going on now can uncover that kind of fraud.”
To validate an election, one does not need to falsify all allegations of fraud merely; one needs to positively show that the mechanism in place has revealed the voter’s actual intent. The removal of many time-tested election safeguards in the 2020 election has cast doubt on that mechanism.
Congress should form an Election 2020 Investigation Commission
Given that many of the cases surrounding electoral irregularities were denied a substantial review by the courts and given a procedural dismissal, Congress should form an Election 2020 Investigation Commission to investigate the matter thoroughly.
Hopefully, in the future, if the U.S. continues to use “universal” mail in voting for elections, they need to implement the appropriate checks and safeguards to ensure election integrity and to restore confidence in American elections.
Congress should certify Biden-Harris as the Presidential election winners
I think the election results with Biden-Harris as the victor should be certified as the time to contest “ad hoc” election rules is before the election.[1]
If Trump and the Republicans failed to accomplish this before the election, it is unfair to voters who acted in good faith and voted with mail-in ballots to have their votes repealed after the election. This was the reasoning behind dismissing his claims based on the grounds of standing or laches. [2] [3]
Biden-Harris will be certified as the winner and will end up occupying the White-House, but it won’t be pretty. The stink over the election rule changes made by the Democrats will give Trump a “moral” victory that he would not have had if the Democrats left longstanding election rules in place and did not tinker with election rules allegedly “because of COVID.”
— Mark Da Cunha
Update (2021.01.07): Like other commentators, I was hoping Congress would peacefully certify Biden-Harris as the winners and also establish as a sign of good-will an Election 2020 Investigation Commission to give an outlet to those Americans who believe the 2020 election was stolen. Unfortunately, when I said “it won’t be pretty,” it became far worse than I thought, as an idea of a bi-partisan Election 2020 Commission was pushed aside as a mob of MAGA hat and flag-waving anarchists stormed the U.S. capitol, eliminating any “moral” sympathy for the Trump side.
Update (2021.01.11): Steve Hayward makes similar points in “They Stole It Fair And Square” at Powerline:
“The Democrats stole the election fair and square. Of course, I don’t mean that literally; what I mean is that the election was effectively stolen months ago before any ballots were cast when legislatures (and sometimes governors and state courts such Pennsylvania) changed the voting rules to allow expanded mail-in voting, and the cascade of related vulnerabilities that followed. Republican legislatures that went along with these COVID-induced panic changes were foolish if not derelict in their duty. And the Trump campaign was negligent in not fighting against this months ago. President Trump was correct to warn about this outcome. Why wasn’t his campaign better organized to resist this months ago? (I know they did file a few lawsuits, a few of which had some effect, but it wasn’t enough.) I suspect the long-rumored campaign infighting and attention to other things distracted Trump’s senior campaign managers from paying sufficient attention to this.
Fraud is very easy in our election system. Remember that our elections are run by part-timers, amateurs, and volunteers on the county level in America—and we have over 3,000 counties. In such a diffuse system it is easy to conjure up a few dozen votes here, a few hundred votes there. Or worse. It is at once a glory of self-government in America that we actually conduct our elections in this decentralized way involving tens of thousands of citizen volunteers. It is also astounding that we use such a vulnerable and chaotic system to choose our President.
“So the problem with vote fraud is that a remedy is difficult to apply. There aren’t good remedies. If a race is within a few hundred votes or less, a recount or ballot challenges can work to reverse the outcome, though not often. The plain fact is that once a fraudulent ballot is inside the ballot box and counted, it is very hard to get it back out of the box and un-counted. Fraudulent ballots need to be intercepted before they reach the ballot box. It is likely not possible to disqualify enough ballots to change the outcome in three states, which is what Trump would need. The statistical anomalies of this election are good circumstantial evidence of vote fraud, but exactly which ballots, or which vote totals, do you change, and how?
“No court is going to overturn an election result on circumstantial evidence and affidavits of incorrect polling place procedure alone. (I reserve judgment for the time being about the Dominion computer system question.) And the thorough fact-finding necessary for judicial intervention would take time that we haven’t got. This is why both the Constitution and most state election statutes make the legislatures the arbiters of presidential election results.”
(A “hat tip” for the above quote to Gus Van Horn also mentions possible voter fraud in the 2018 California election via “ballot harvesting.”)
Notes:
[1] Ronald Pisaturo had pointed out to me in an email that “The Republican Party did bring a case to the Supreme Court before the election [regarding Pennsylvania], but the court declined to hear the case (in a 4-4 decision), evidently because there was not yet any harm done.” He also adds:
Regarding the decision by the Wisconsin Supreme Court, did you see this statement in the dissent by Annette Kingsland Ziegler, J. (¶133, p. 12)?:
“Under the majority’s new rule, a candidate will have to monitor all election-related guidance, actions, and decisions of not only the Wisconsin Elections Commission, but of the 1,850 municipal clerks who administer the election at the local level. And that is just in one state! Instead of persuading the people of Wisconsin through campaigning, the candidate must expend precious resources monitoring, challenging, and litigating any potential election-related issue hoping that a court might act on an issue that may very well not be ripe.”
I do think that the Republicans should have been better prepared. The. U.S. should have been better prepared at Pearl Harbor. But that does not mean that we forfeit our right to fight after the attack. The Democrats opened the door to fraud before the election. But they also committed fraud during the election. Both actions are heinous, and both should have been fought and still should be fought. This crisis is not about Trump. It is about an election being stolen. That is an attack on our nation. Many voters on both sides acted in good faith, and that good faith is being violated, not by voiding a corrupt election, but by accepting a corrupt election.
[2] This article does not cover other electoral irregularities that were denied a substantial review by a procedural dismissal by the courts. See some thoughts on detecting fraud here:
[3] Given the U.S. capitol riots during the certification of Biden as President – where much blame is for inciting them is based on Trump’s rhetoric post-election – Trump’s political career is over.
Related Reading:
Jan 5, 2021 | Culture
Channeling Leonard Peikoff’s The Cause of Hitler’s Germany, Professor C. Bradley Thompson writes these powerful words in his essay “German Nihilism, American-Style”:
Nihilism is born of hatred and resentment. It seeks to destroy. Strauss notes, however, that German nihilism was not absolute nihilism, which must ultimately result not only in the destruction of the “other” but also in the destruction of one’s own self through either individual suicide or a Jonestown-like collective suicide. Pure nihilism represents the highest form of self-hatred and self-abnegation, but German nihilism, particularly in its Nazi form, did pursue something rather than Heidegger’s “das Nichts” (nothingness). The Nazis did seek a “positive” value: their nihilism was mixed with a particular form of hedonism, namely, sadism. According to Strauss, there is reason to believe “that the business of destroying, and killing, and torturing” was a “source of an almost disinterested pleasure to the Nazis as such,” that they derived a “genuine pleasure from the aspect of the strong and ruthless who subjugate, exploit, and torture the weak and helpless.” They loved to hate, destroy, and to make others feel pain and to suffer.
But German nihilism was not simply about destruction for the sake of destruction or death for the sake of death. Its ultimate political goal was, as Strauss noted, German world-domination through war for the sake of war. Martial conflict, the young nihilists argued, brought out the best in men. As Strauss put it,
“The admiration of the warrior type as a type, the unconditional preference given to the warrior as warrior, is however not only genuine in German nihilism: it is even its distinctive feature. Our question: in favor of what does German nihilism reject the principles of civilization as such must therefore be answered by the statement: that it rejects those principles in favor of the military virtues.”
Self-sacrifice and self-denial represented the highest form of moral good for the German nihilists and the primary virtue was courage. Strauss was correct to see that the preference for war over peace and war for the sake of war led “for all practical purposes” to “nothing other than destruction.” Kant’s perpetual peace would be replaced by Nietzsche’s perpetual war. But if war—and all that comes with it—is a good in itself, then there can be no justice, only the will to power and the desire to destroy. The young conservative revolutionaries saw in the future not the return to an old past but a new beginning, one for which the end justified the means.
At the deepest philosophical level, German nihilism as it was birthed in Nazism represented “a return to a pre-modern ideal, but this pre-modern idea was not to be found in Socrates, Plato, or Aristotle. Its true origin, according to Strauss, was to be found in “pre-socratic philosophy” as described by Nietzsche in The Birth of Tragedy. Here, Strauss pulls no punches: “The relation of Nietzsche to the German Nazi is comparable to the relation of Rousseau to the French Revolution.” And of course, Nietzsche is the link to twenty-first century, right-wing nihilism—American-style.
[…] One hundred years after Weimar, the United States of America seems to be entering its own Weimar state of mind, where the forces of the progressive or nihilist Left and those of the reactionary or nihilist Right are competing against each other to destroy the tottering remnants of a free society.
Read the rest of German Nihilism, American-Style.
Jan 3, 2021 | Politics
According to one of the bill’s co-authors, Senator Ron Wyden:
Republican Congressman Chris Cox and I wrote Section 230 in 1996 to give up-and-coming tech companies a sword and a shield, and to foster free speech and innovation online.
Essentially, 230 says that users, not the website that hosts their content, are the ones responsible for what they post, whether on Facebook or in the comments section of a news article. That’s what I call the shield.But it also gave companies a sword so that they can take down offensive content, lies and slime — the stuff that may be protected by the First Amendment but that most people do not want to experience online. And so they are free to take down white supremacist content or flag tweets that glorify violence (as Twitter did with President Trump’s recent tweet) without fear of being sued for bias or even of having their site shut down. Section 230 gives the executive branch no leeway to do either.
Without Section 230, sites would have strong incentives to go one of two ways: either sharply limit what users can post, so as to avoid being sued, or to stop moderating entirely, something like 8chan — now operating under the name 8kun — where anonymous users can post just about anything and speech supporting racism and sexism is common.
Here is the actual text (from the
U.S. Government Publishing Office):
7 U.S.C.
United States Code, 2011 Edition
Title 47 – TELEGRAPHS, TELEPHONES, AND RADIOTELEGRAPHS
CHAPTER 5 – WIRE OR RADIO COMMUNICATION
SUBCHAPTER II – COMMON CARRIERS
Part I – Common Carrier Regulation
Sec. 230 – Protection for private blocking and screening of offensive material
From the U.S. Government Publishing Office, www.gpo.gov
§230. Protection for private blocking and screening of offensive material
(a) Findings
The Congress finds the following:
(1) The rapidly developing array of Internet and other interactive computer services available to individual Americans represent an extraordinary advance in the availability of educational and informational resources to our citizens.
(2) These services offer users a great degree of control over the information that they receive, as well as the potential for even greater control in the future as technology develops.
(3) The Internet and other interactive computer services offer a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity.
(4) The Internet and other interactive computer services have flourished, to the benefit of all Americans, with a minimum of government regulation.
(5) Increasingly Americans are relying on interactive media for a variety of political, educational, cultural, and entertainment services.
(b) Policy
It is the policy of the United States—
(1) to promote the continued development of the Internet and other interactive computer services and other interactive media;
(2) to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation;
(3) to encourage the development of technologies which maximize user control over what information is received by individuals, families, and schools who use the Internet and other interactive computer services;
(4) to remove disincentives for the development and utilization of blocking and filtering technologies that empower parents to restrict their children’s access to objectionable or inappropriate online material; and
(5) to ensure vigorous enforcement of Federal criminal laws to deter and punish trafficking in obscenity, stalking, and harassment by means of computer.
(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—
(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; or
(B) 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).1
(d) Obligations of interactive computer service
A provider of interactive computer service shall, at the time of entering an agreement with a customer for the provision of interactive computer service and in a manner deemed appropriate by the provider, notify such customer that parental control protections (such as computer hardware, software, or filtering services) are commercially available that may assist the customer in limiting access to material that is harmful to minors. Such notice shall identify, or provide the customer with access to information identifying, current providers of such protections.
(e) Effect on other laws
(1) No effect on criminal law
Nothing in this section shall be construed to impair the enforcement of section 223 or 231 of this title, chapter 71 (relating to obscenity) or 110 (relating to sexual exploitation of children) of title 18, or any other Federal criminal statute.
(2) No effect on intellectual property law
Nothing in this section shall be construed to limit or expand any law pertaining to intellectual property.
(3) State law
Nothing in this section shall be construed to prevent any State from enforcing any State law that is consistent with this section. No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.
(4) No effect on communications privacy law
Nothing in this section shall be construed to limit the application of the Electronic Communications Privacy Act of 1986 or any of the amendments made by such Act, or any similar State law.
(f) Definitions
As used in this section:
(1) Internet
The term “Internet” means the international computer network of both Federal and non-Federal interoperable packet switched data networks.
(2) Interactive computer service
The term “interactive computer service” means any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.
(3) Information content provider
The term “information content provider” means any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.
(4) Access software provider
The term “access software provider” means a provider of software (including client or server software), or enabling tools that do any one or more of the following:
(A) filter, screen, allow, or disallow content;
(B) pick, choose, analyze, or digest content; or
(C) transmit, receive, display, forward, cache, search, subset, organize, reorganize, or translate content.
(June 19, 1934, ch. 652, title II, §230, as added Pub. L. 104–104, title V, §509, Feb. 8, 1996, 110 Stat. 137; amended Pub. L. 105–277, div. C, title XIV, §1404(a), Oct. 21, 1998, 112 Stat. 2681–739.)
References in Text
The Electronic Communications Privacy Act of 1986, referred to in subsec. (e)(4), is Pub. L. 99–508, Oct. 21, 1986, 100 Stat. 1848, as amended. For complete classification of this Act to the Code, see Short Title of 1986 Amendment note set out under section 2510 of Title 18, Crimes and Criminal Procedure, and Tables.
Codification
Section 509 of Pub. L. 104–104, which directed amendment of title II of the Communications Act of 1934 (47 U.S.C. 201 et seq.) by adding section 230 at end, was executed by adding the section at end of part I of title II of the Act to reflect the probable intent of Congress and amendments by sections 101(a), (b), and 151(a) of Pub. L. 104–104 designating §§201 to 229 as part I and adding parts II (§251 et seq.) and III (§271 et seq.) to title II of the Act.
Amendments
1998—Subsec. (d). Pub. L. 105–277, §1404(a)(3), added subsec. (d). Former subsec. (d) redesignated (e).
Subsec. (d)(1). Pub. L. 105–277, §1404(a)(1), inserted “or 231” after “section 223”.
Subsecs. (e), (f). Pub. L. 105–277, §1404(a)(2), redesignated subsecs. (d) and (e) as (e) and (f), respectively.
Effective Date of 1998 Amendment
Amendment by Pub. L. 105–277 effective 30 days after Oct. 21, 1998, see section 1406 of Pub. L. 105–277, set out as a note under section 223 of this title.
In a letter to congress a “Coalition Opposing Changes to 47 U.S. Code § 230 (Section 230) as Part of the National Defense Authorization Act” (23 Dec 2020)wrote:
Section 230 has been called the law that created Internet as we know it. It accomplished this through a simple premise: You are responsible for what you say or do online and the platform that hosts your content is not. This shield against intermediary liability has allowed countless online services, from the biggest names in Silicon Valley to the website currently being invented in an entrepreneur’s garage, to grow and operate on a global scale. Nascent companies deserve the same playing field that today’s industry leaders enjoyed in their early days. Without fear of being held liable for the enormous volume of content generated by their users, a new generation of platforms—perhaps with content moderation more to the liking of critics on both the left and the right—can come into being. If Section 230 were to be repealed, or even watered down, this next generation of platform will likely be thwarted by liability threats. “Big tech” firms have the resources to comply with new mandates and regulations, so erecting this barrier to entry to nascent firms will artificially lock currently dominant firms in their lead positions.
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