The right-wing insurrectionists are saying they are going to mount another assault on the Capitol, state capitals, and return to Washington for the inauguration. We should take them seriously. They are armed and dangerous. How lawful authorities respond will determine whether this is “just” an insurrection by radical white supremacists or a full-on rebellion against the United States. If Capitol breaches occur again or the inauguration is disrupted, we will be in the midst of a war with the radical right, which the Biden administration must treat as such.
On January 13, the Congress will, for a second time, impeach Donald Trump. Given that he led an attack on his own government, this is more than necessary. Regardless of whether the Senate convicts him, he must be prosecuted. Trump’s “big lie” that the election was stolen and the way he used that lie is traitorous. The crime of treason is generally prosecuted against those who participate in a war against their own country on the side of a foreign power. However, it also includes attempting to overthrow one’s own government, which Trump did. Regardless of whether he is prosecuted for treason or sedition (18 U.S. Code sections 2383, 2385), he committed crimes against his country for which he must be held accountable.
Those involved in the January 6 insurrection must also be held accountable under the law or we no longer will be living in a democracy committed to the rule of law. This, of course, includes all of those who invaded the Capitol. However, it also must include those members of the government who supported, urged, and abetted the insurrectionists’ physical sacking of the Capitol. Among the House of Representatives, 139 reps, and in the Senate, eight senators supported the objection to certifying the Electoral College vote. They all knew there was no voter fraud sufficient to invalidate the election. Their votes were acts of sedition against their own government and must be prosecuted (under 18 U.S. Code).
The leaders of this political insurrection, Senators Josh Hawley and Ted Cruz and House Minority Leader Kevin McCarthy, should be expelled from the Congress. They, like Trump, committed treason and most certainly sedition under 18 U.S. Code. They cannot hide behind the 1st Amendment. Seditious speech (“directed to inciting or producing lawless action…”) is not protected (Brandenburg v Ohio,395 U.S. 444). If we treat these betrayals as “business as usual,” we will have taken a serious step away from being a government of laws, rather than a government of the people.
The elephant in the room regarding this insurrection is the internet. I am firmly committed to the 1st Amendment’s freedom of the press protections. However, it’s past time we acknowledge that social media is media, and treat it as such. First Amendment media protections are not absolute. They can be sued for obscene, profane, libelous, and “fighting words” that incite a breach of the peace. Social media, because of Section 230 of the Communications Decency Act, cannot be held liable for publishing seditious and or defamatory content. It reads: ” No provider and user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information provider.”
Providers on the internet are media. Their content is read daily by millions of people. Because of the internet their content is spread and commented on instantaneously. The insurrectionist white supremacists used it to spread Trump’s lie about election fraud and organize the attack on the Capitol. They are, as of this writing, using social media to plan new attacks. Social media providers knew, or should have know, this was happening and stopped it, or been liable for publishing seditious and defamatory speech.
I realize Trump wanted section 230 repealed, removing the protection, because Twitter, and other providers, froze and then banned his accounts. He was wrong. They should have banned his seditious and defamatory speech. However, it’s past time that we stop treating social medial like a telephone line. It should have the same 1st Amendment protections and liabilities as other media providers. It has simply become too dangerous to allow unfettered sedition and lies to circulate on the internet.