On July 9th Alan Dershowitz published an editorial defending the “Former Guy’s” lawsuit against big tech companies and the arguments are so incredibly stupid that it makes you think Trump must have some really serious dirt on Dershowitz. For a former Harvard Law Professor to repeatedly debase himself like this, and present such ridiculous arguments, you just can’t help but wonder what that “dirt” happens to be. This editorial will be a brief dismantling of Dershowitz’ ridiculous claims.

Dershowitz first tries to portray the enforcement of community standards as “new censorship”, and claims that “There can be no doubt that these social media giants are denying the former president his freedom of speech..” This is a statement without reason, fact or logic. Denying someone their freedom of speech was clearly understood by the country’s founders to mean subjecting someone to imprisonment, torture, mutilation or death because of things they said. The concept of freedom of speech does not require others to provide you with a venue for your speech, nor does it protect you from criticism of negative public regard.

Furthermore, Trump’s claims that access to online forums are a fundamental right are undermined by his actions as President. While President, Trump appointed a former corporate lobbyist- Ajit Pai -as head of the Federal Communications Commission. In that position, Pai regularly lobbied against Net Neutrality regulations that were meant to require all internet service providers to treat all internet traffic equally. Without Net Neutrality regulations, Internet Service Providers have a legal right to throttle or block access to certain onlne content. You cannot claim that access to social media forums are a fundamental right, while at the same time you are promoting the private sectors right to throttle or block access to those furms. Trump and his Republican allies in the Senate referred to Net Neutrality as a “government takeover of the internet”, so for Trump to suddenly advocate for government control of the Internet clearly constitutes an arbitrary and capricious interest based upon a particular circumstance, rather than a general principle of law that can be applied equally to all Americans. That lack of consistency and generality in application nullifies Dershowitz’ claim entirely. It’s also worth noting that Trump opposed additional funding for programs meant to expand access to broadband internet. Again, you cannot argue that access to online forums is a fundamental right, then turn around and insist that the Internet access which permits access to those forums is a personal luxury.

Dershowitz goes on in his piece to mention that Clarence Thomas once speculated on the possibility of treating internet service providers as Common Carriers who would be subject to certain regulations, but again, Trump and his appointees fought against efforts to regulate Internet Service Providers as utilities, which is a necessary predecessor to applying Common Carrier regulations. Additionally, the idea that such regulation could be used to force online companies to permit their platforms to be used for the promotion of hate-speech and as forums for the planning of terrorist attacks would be counter to how Federal Agencies have sought to regulate mass communication mediums in the past. Historically, Federal Regulation has been involved in preventing tools of interstate commerce from being used as tools of organized crime or political terrorism, or for enforcing “Standards and Practices” that limit the use of profane language, or the sharing of pornographic material on broadcast radio and television stations. There is no precedent for the Federal Government using its authority to force private sector companies to provide their communications platforms as venues for extremist propaganda.

Dershowitz also mentions: “…the uphill battle that Trump may face in persuading the courts that his non-constitutional free speech right to communicate with his millions of followers…”. There’s a very good reason that would be an uphill battle. That’s because the ability to use an online forum is a privilege that is granted to a user based upon their willingness to abide by the terms of service that they agree to when they initially sign up to use the service. Dershowitz is willfully misrepresenting the difference between privileges and rights. In an even more incredibly blazing demonstration of stupidity, Dershowitz, while describing his idea for a limit on Section 230 of the Communications Decency Act of 1996 claims that the government, “…should limit the exemptions only to media platforms that do not censor lawful speech that they deem offensive…”. There’s another huge problem there too. Allowing far-right trolls to run rampant over social media platforms would result in women, minority, LGBTQ+ and liberal users feeling that those platforms are no longer safe or welcoming places to gather online. Because so many far right trolls engage in violent threats and harassment against other users, a condition that those far right trolls must be protected would create a dilemma for companies, which would have to either permit that kind of behavior to proliferate, or risk an endless string of lawsuits from right-wing extremists who were complaining they were “unfairly targeted”, and far-right politicians claiming their supporters were targets of censorship.

Because toxic behavior in online forums that drives out more moderate users and allows extremists to take over control of a social media forum ultimately constitutes a per se taking of the online space, failure to kick out the trolls who are behaving in a toxic manner, harassing other users and making violent threats (the same way you’d kick an angry drunk out of a bar if he was harassing and threatening the other patrons) constitutes an improper seizure of private property (that private property being the online space created by the social media company) and a failure to guarantee equal access to places of public accomodation, and ultimately constitutes Federal sponsorship of content that is immediately contrary to principles laid out in the 13th, 14th, 15th and 19th Amendments. The sponsorship of such toxic ideas, and the driving out of women, minorities and the LGBTQ+ community from online communities would become a gross violation of the 14th and 15th Amendments.

The Federal Government should not be in the business of protecting right-wing extremists who want to use the online space to promote hateful propaganda, sling rape and death threats at women, minorities and the LGBTQ+ community, or use online forums as a place for planning terrorist attacks like the one that occurred on January 6th. Dershowitz arguments are complete nonsense, and have no basis in fact, reason or logic. He would probably even accuse me of trying to “cancel” him because I decided to exercise my right to free speech by pointing out what a ridiculous load of shit his editorial really was.