Elizabeth Warren Violates the First Amendment with a Tweet
A very Trumpy and narcissistic tweet. And her fans absolutely love it.
Above: Elizabeth Warren’s fans see her as a David fighting the corporate Goliath, armed with nothing more than a slingshot and the vast powers of the United States government.
If you think “I will tolerate anything my favorite politician does no matter how inappropriate, because that politician makes the other side suffer!” is a feeling held only by superfans of ex-president Donald Trump, let me introduce you to the superfans of one Elizabeth Warren.
A couple of days ago, Warren published the following tweet, directed at a corporate account for Amazon:
Amazon News @amazonnews@SenWarren 1/3 You make the tax laws @SenWarren; we just follow them. If you don’t like the laws you’ve created, by all means, change them. Here are the facts: Amazon has paid billions of dollars in corporate taxes over the past few years alone.
Focus in particular on that last sentence: “And fight to break up Big Tech so you’re not powerful enough to heckle senators with snotty tweets.”
That is a nakedly brazen statement of intent to invoke the Sherman Act for a wholly improper purpose: to prevent Amazon from criticizing senators like Elizabeth Warren on Twitter.
Jonah Goldberg has an amusing take on this:
The interesting—and disturbing—thing about Warren’s far snottier rejoinder is that she seems to think this shouldn’t be the case. Indeed, she seems to think mere disagreement amounts to heckling. Still worse, she thinks businesses—nay, whole sectors—should be broken up so that they won’t have the temerity to disagree with a bloviating and demagogic senator. I wonder if Warren is offended when NARAL “heckles” Ted Cruz. I’m kidding of course, I don’t wonder about that at all.
I’m sure Warren has lots of reasons for wanting to break up Big Tech, but she didn’t list them here. By her account she thinks insufficient fear of Elizabeth Warren, the Cambridge Slay Queen, is justification alone for swinging her scythe. That disturbs me far more than literally anything Amazon or Jeff Bezos have ever said or done.
It disturbs me for another reason: Warren’s tweet itself is a violation of the First Amendment. It is an abuse of power, all on its own — and as such is reminiscent of similar actions by Donald Trump.
Before I get into the Twitter controversy that has arisen as a result of my criticism of Warren, I want to explain how Warren’s tweet alone — even if unaccompanied by any further action — is itself a violation of the First Amendment. I explained the general concept underlying this conclusion in detail at my blog when Donald Trump did the same thing last year, so I will borrow generously from the post I wrote then: Trump Violates First Amendment with a Tweet. It started when Twitter did a fact check of Trump comments, and Trump responded by threatening government action:
Twitter has now shown that everything we have been saying about them (and their other compatriots) is correct. Big action to follow! — Donald J. Trump (@realDonaldTrump)
I explained that this tweet alone violated the First Amendment:
Trump’s tweet this morning is a First Amendment violation. Because Twitter’s fact check, however ill-advised it might be, is Twitter’s speech. And Trump is threatening to retaliate for that speech, using the power of the Government to do so. Who knows how? It might be regulation or Lord knows what else. But the “big action” to follow is probably not just a personal decision, like, say, Trump leaving Twitter. (We should be so lucky.)
Hold up! I hear you saying. Maybe he is *threatening* (in a vague way) a First Amendment violation, but the tweet itself is not a First Amendment violation, right? Wrong. I believe it is, all by itself. Let’s look at a relevant case: Backpage.com, LLC v. Dart (7th Cir. 2015) 807 F.3d 229.
In that case, a sheriff publicly called on credit card companies to stop dealing with an online business that provided a forum for adult activities, some of which might be illegal. Notably, the sheriff sent letters to the credit card companies alluding to, as the court put it, “their potential susceptibility to ‘money laundering prosecutions and/or hefty fines.'” He signed it in his capacity as sheriff, not as a private citizen.
The sheriff ripostes that he’s not using his office to organize a boycott of Backpage by threatening legal sanctions, but merely expressing his disgust with Backpage’s sex-related ads and the illegal activities that they facilitate. That’s not true, and while he has a First Amendment right to express his views about Backpage, a public official who tries to shut down an avenue of expression of ideas and opinions through “actual or threatened imposition of government power or sanction” is violating the First Amendment. American Family Association, Inc. v. City & County of San Francisco, 277 F.3d 1114, 1125 (9th Cir.2002).
. . . .“[T]he fact that a public-official defendant lacks direct regulatory or decisionmaking authority over a plaintiff, or a third party that is publishing or otherwise disseminating the plaintiffs message, is not necessarily dispositive…. What matters is the distinction between attempts to convince and attempts to coerce. A public-official defendant who threatens to employ coercive state power to stifle protected speech violates a plaintiff’s First Amendment rights, regardless of whether the threatened punishment comes in the form of the use (or, misuse) of the defendant’s direct regulatory or decisionmaking authority over the plaintiff, or in some less-direct form.” Notice that such a threat is actionable and thus can be enjoined even if it turns out to be empty — the victim ignores it, and the threatener folds his tent. But the victims in this case yielded to the threat.
The court ordered the district judge to grant Backpage’s request injunction against the sheriff engaging in such coercion.
So a threat of governmental retaliation for speech is a First Amendment violation. The government official need not actually take the threatened action.
And that, my friends, is precisely what Elizabeth Warren did to Amazon in her tweet. In fact, Amazon’s corporate account summarized the situation perfectly:
Elizabeth Warren @SenWarrenI didn’t write the loopholes you exploit, @amazon – your armies of lawyers and lobbyists did. But you bet I’ll fight to make you pay your fair share. And fight your union-busting. And fight to break up Big Tech so you’re not powerful enough to heckle senators with snotty tweets. https://t.co/3vCAI93MST
Now, I have often said that Trump superfans might be more frightening to me than Trump himself. And it turns out that Warren’s superfans are cut from the same cloth. Despite the clearly thuggish nature of her threat — the Trumpish and openly personal threat to abuse a law for the purpose of stamping out Twitter criticism of Elizabeth Warren — her fans lined up to support her with the most intellectually dishonest arguments imaginable. The effect was magnified because Tom Nichols retweeted my criticism, and despite his very sensible agreement with me, his followers are full of hordes of Warren stans who fight just as dirty as the Trump superfans.
The basic approach they took was to act as if Warren had never uttered the threat. Remember: Warren concluded her tweet with a pledge to “fight to break up Big Tech so you’re not powerful enough to heckle senators with snotty tweets.” Yet the Warren stans pretended I was objecting to Warren’s claims about taxation. Here is a typical exchange with a Dartmouth professor of sociology who claims bylines in The Atlantic, The New York Times, and the Washington Post.
I’ll give you one more example, from someone who claims in his Twitter bio to be an author and radio talk show host. He called me “disingenuous” right out of the gate, and I told him I was blocking him for it. He then pretended I had blocked him simply for sharing Warren’s plan on breaking up Big Tech:
In contrast to these cretins, a small handful of Warren supporters acknowledged that she had made an error — and I tip my hat to those intellectually honest enough to make such an admission. But suffice it to say that the vast majority of Warren’s stans largely found any way possible to justify this thuggery.
As I say, most of the arguments simply ignored her threat and pretended the debate was purely about payment of taxes, but I also saw people arguing that it is appropriate to use the Sherman Act to “adjust the balance of power” between corporations and politicians. In other words, even if it’s acknowledged that she is using antitrust law to retaliate against political speech, that’s a good thing, you see . . . because corporations’ speech is too powerful, and we need to use antitrust to give politicians a fighting chance! One person said I was acting like Amazon is David and Warren is Goliath, when in reality (this person claimed) the opposite is true. Yes: Elizabeth Warren is a scrappy little David, armed with nothing but a slingshot and her status as a representative of a government that controls our laws, determines how trillions of dollars are spent, and has armed forces including nuclear weapons.
This fellow really spoke about free speech like it’s this annoyance that prevents politicians from doing great things. I can think of any number of totalitarian countries that might be more to his liking than this one.
Again: even if Warren is entirely powerless — and Jonah Goldberg, in the essay linked above, makes the case that senators can’t accomplish much except gum up the works in ultimately ineffective ways — the case law I cited above shows that she is violating the First Amendment with her tweet whether she has the power to carry out her threats or not.
I don’t think that’s a particularly persuasive argument to the Warren superstans. Based on the reaction I have seen in the last 24 hours, I’m not sure they care much about the First Amendment. But you do, or you wouldn’t be reading this newsletter.
Anyway, it’s vaguely reassuring to experience firsthand that the other side has cultists who are every bit as intellectually dishonest and creepy as Trump superfans. All it takes is a messianic figure who pledges to “own the cons” as much as Trump claimed to “own the libs” and we’ll be headed down a very ugly road again.