July 10, 2020

Unprotected Speech and Secure Ballots

By Stephen Tuttle | June 6, 2020

Apparently we have to go over a couple of related items. Again.

Your speech is not protected by the First Amendment on social media platforms. There is no widespread, short-spread, or any spread of fraud surrounding mail-in ballots. 

The U.S. Supreme Court ruled in 2017 that a North Carolina law denying some individuals access to all social media platforms is a violation of the First Amendment's right to free speech. That did not apply to individual social media companies.

The key here is it was the government doing the banning, and that runs afoul of the First Amendment, “Congress shall make no law ... ” That has long been held to mean any government entity, at all levels. Social media, which is most definitely not the government, is under no such restriction.

President Trump, angry because Twitter finally put a fact-check notation on one of his endless tweets of misinformation, wants to undo a 1996 law that gives social media platforms exemptions from defamation and libel exposure. He thinks he should be able to sue most anyone who ever criticizes or contradicts him, or at least threaten to sue. And, as always, he believes there's a conspiracy to stifle his supporters online.

The naive logic of the law back then was that the internet, especially the growing social media segment, would be the unfettered location for all information, sort of an international campfire around which we would all exchange pleasantries. Since social media platforms were creating none of the content, they were held harmless for it.

And, of course, despite his bluster and executive orders, the president can't just arbitrarily make Facebook, Instagram, Twitter, and the rest bow to his wishes. Changes to how they do business would require public hearings before both the Federal Communications Commission (FCC) and the Federal Trade Commission (FTC), not to mention Congressional approval for a new law. It won't happen.

It's more likely Senate Republicans will launch committee hearings dedicated to the notion that there is bias on social media and declare something definitely should be done about it, and then they'll move along.   

It was one of Trump's frequent hyperbolic Twitter rants that started all of this: yet another unfounded claim that mail-in ballots are awash in fraud. Maybe it provides a useful distraction for him, but it grows tiresome.  

There is no evidence vote-by-mail is prone, or even vulnerable, to massive fraud. None. Trump's accusations are an insult to the men and women at the state and local levels who work very hard and very successfully to prevent fraud. And there are safeguards aplenty.

Missouri, Mississippi, Tennessee, Louisiana, and Texas are the only states remaining that will require some reason for requesting a mail-in ballot during the 2020 election cycle; every other state will permit mail-in ballots by request. 

While 11 of those states are doing so temporarily because of the coronavirus, it's permanent in the other 34. In fact, Washington, Oregon, Colorado, Utah, and Hawai'i now hold all of their elections by mail. 

So there should be plenty of evidence of the widespread fraud Trump claims. Remember when he convened the Voter Fraud Commission with great fanfare in 2017? They met once and then scurried off. They could still be looking for the fraud that doesn't exist.

Oregon has mailed 100 million ballots since 2000 and found 12 incidents of fraud. There were 33 million ballots mailed in the 2016 national election, and virtually no fraud found. Justin Levitt, a law professor at Loyola Law School in Los Angeles researched mail-in voting records from 2000 to 2014 and found 31 incidents of intentional fraud.  

The biggest mail-in ballot fraud in memory happened in 2018 when a Republican operative in North Carolina orchestrated a bizarre scheme that required a do-over in the Congressional election in which his scam took place. Election officials became suspicious when at least one precinct counted more absentee ballots cast for one candidate than there were registered voters. 

There isn't even any evidence that mail-in ballots help one party more than another. We know the demographic most likely to avail themselves of the privilege are older voters. There is evidence that mail-in ballots increase turnout; several studies indicate vote-by-mail increases participation by as much as five percent. 

Eliminating mail-in ballots, as the president has suggested, will disenfranchise a significant chunk of the voting population, and it's hard to see how decreased turnout helps the country. 

Neither the president nor Congress is going to find a way to muzzle social media since that would violate the First Amendment. There is not now, nor is there likely to be widespread voter fraud using mail-in ballots because the men and women overseeing our elections will continue to make sure it doesn't happen. 

Your online rants are safe, and your mail-in ballot is secure. After all, even the president votes by mail. 


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