from the that's-not-how-any-of-this-works dept
It’s no secret that Elizabeth Warren thinks the big internet companies should be broken up. She’s made that argument emphatically over the years. I’m not exactly clear what breaking them up actually accomplishes beyond punishing the companies, but as a Senator, she can certainly make the arguments for why it makes sense, or pass laws that impact how antitrust works.
However, what she cannot and should not do, is threaten to punish a company for its speech. And, yet, that’s exactly what she did. Amazon tweeted at Warren after Warren said that Amazon exploits loopholes and tax havens, and that she was introducing a bill to make the company pay more taxes. In response, Amazon said in a short tweet thread:
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. In 2020, we had another $1.7B in federal tax expense and that?s on top of the $18 billion we generated in sales taxes for states and localities in the U.S. Congress designed tax laws to encourage investment in the economy. So what have we done about that? $350B in investments since 2010 & 400K new US jobs last year alone. And while you?re working on changing the tax code, can we please raise the federal minimum wage to $15?
It’s maybe not the most politically savvy way of doing that, but that’s how Amazon chose to go about it. Warren responded thusly:
That is her saying:
I 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.
Neither party comes out of this looking very good, frankly. It seems kinda silly for Amazon to get snarky about this. And Warren has every right to look into changing tax laws — or to complain about lawyers/lobbyists seeking loopholes. That’s her job.
But, even if you hate Amazon and love Elizabeth Warren her last sentence should greatly trouble you. It doesn’t matter if Warren has lots of other good policy ideas regarding Amazon, or well documented reasons for breaking up the company. It doesn’t matter that she was being snarky on Twitter in response to probably uncalled-for tweets from Amazon. At no point should a government official say that anyone should be punished for their speech. And that’s what Warren has said by saying that she would “fight to break up Big Tech so you?re not powerful enough to heckle senators with snotty tweets.”
Everyone should have the power to heckle Senators with snotty tweets. That’s a core, fundamental principle of the 1st Amendment. Warren wipes away whatever goodwill she might have, and undermines her policy proposals and ideas when she attacks a private company for its speech. It no longer seems like a principled position. It no longer seems like a position based on what’s best for the country. It now allows people to say she got upset over nasty tweets.
And, yes, that’s even given everything else. Yes, she has plenty of other reasons to want to break up Amazon. Yes, this isn’t a change in her position. Yes, she’s being snarky on Twitter, and that’s what Twitter is for. But none of that matters, just like it didn’t matter when former President Donald Trump threatened companies for their speech, and his supporters said “aw, he’s just joking” when people called him on that.
At no point is it appropriate for government officials to threaten to retaliate against speech, even jokingly.
It is an inherent threat and is blatant censorial intimidation. Amazon may not care, but lots of other companies are also watching this, and noting that when challenged, Warren threatens to attack companies for their speech and harm them to the point that they no longer feel comfortable speaking. That’s a real problem. And courts have recognized this over the years. Even if you think what someone is saying is bad, government officials aren’t supposed to intimidate them. That was the lesson in the Backpage v. Dart case a few years back:
With very limited exceptions, none applicable to this case, censorship??an effort by administrative methods to prevent the dissemination of ideas or opinions thought dangerous or offensive,? Blue Canary Corp. v. City of Milwaukee, 251 F.3d 1121, 1123 (7th Cir. 2001), as distinct from punishing such dissemination (if it falls into one of the categories of punishable speech, such as defamation or threats) after it has occurred?is prohibited by the First Amendment as it has been understood by the courts. ?Threatening penalties for future speech goes by the name of ?prior restraint,? and a prior restraint is the quintessential first-amendment violation.? Fairley v. Andrews, 578 F.3d 518, 525 (7th Cir. 2009). The Supreme Court, in enjoining a state commission from sending threatening letters to distributors of books that the commission deemed obscene, found that the ?notices, phrased virtually as orders, reasonably understood to be such by the distributor, invariably followed up by police visitations, in fact stopped the circulation of the listed publications.? Bantam Books, Inc. v. Sullivan, supra, 372 U.S. at 68. The court held the state?s ?system of informal censorship? unconstitutional, pointing out that ?though the Commission is limited to informal sanctions?the threat of invoking legal sanctions and other means of coercion, persuasion, and intimidation?the record amply demonstrates that the Commission deliberately set about to achieve the suppression of publications deemed ?objectionable? and succeeded in its aim.? Id. at 67. The distributor of the plaintiffs? books, corresponding to the credit card companies in this case, received first from the Commission a written request for ?cooperation? and then ?follow up? visits from police, corresponding to the follow-up calls promised in Sheriff Dart?s letter. Id. at 63, 68. The distributor bowed to the Commission?s demand ?rather than face the possibility of some sort of a court action against ourselves, as well as the people that we supply.?
In other words, even if “informal,” the mere threat of speech suppression is intimidation and when done by a government official is a violation of the 1st Amendment. Elizabeth Warren should apologize.
Incredibly, when I tweeted this argument out this morning, many people got very angry with me. They mostly seemed to come from people who like Warren and dislike Amazon. And that’s fine. You can like Warren and dislike Amazon. You can even agree with Warren’s policy proposals regarding antitrust. But no one should accept it as okay when a Senator directly says that she wants to break up a company to the point that they can no longer tweet snarky tweets at a Senator. That is intimidation and it is an unconstitutional attack on speech.
Warren has great power at her disposal, and she is going to try to use that on Amazon. If so, she should defend that on the merits, not even hint (or even joke) about the idea that it may have been due to snarky, but protected, speech.
And that’s true, even with the additional context of the big angry fight over unionization in an Amazon warehouse, or other mishaps with Amazon’s snarky ill-targeted tweets — such as telling Rep. Mark Pocan that its employees have not had to pee in bottles, a charge that Amazon’s social media person mocked:
For many, many, many reasons this was a poorly thought out tweet, not the least of which was that it presented a wide open opportunity for the media to point out not only that Amazon workers have, in fact, at times needed to pee in bottles, but that there are Amazon memos detailing this.
Amazon may be deserving of mockery or contempt for its tweets. But the 1st Amendment is pretty clear that it should not face legal consequences from them — and Warren should never have done so, even if she was just being snarky back. If she doesn’t like being heckled, she has every right to leave her government job. Other than that, it is the public’s right — and often civic duty — to heckle government officials even in snarky ways.
Filed Under: 1st amendment, antitrust, elizabeth warren, intimidation, snotty tweets