If the epitome of fraud isn’t fraud, then there is no fraud

Some time tomorrow, the Oversight Board of the social media platform Facebook will announce its decision whether to reinstate the account of Donald J. Trump. Facebook suspended Trump after January 6, when a riot at the U.S. Capitol—inspired and encouraged by the former president—resulted in five deaths and injuries to at least 140 police officers, caused major damage inside the building and threatened one of the pillars of democracy on which this country was founded: the peaceful transfer of power following a Constitutionally-mandated election.

The argument against Trump is that his mountain of lies, misinformation and hateful rhetoric over the five-plus years of his campaign and term of office should disqualify him from a place on the social media forum. According to the Washington Post, Trump was allowed to make 1,440 posts containing misinformation or extremist rhetoric last year alone on such subjects as the Covid virus and unfounded claims of voter fraud.

The argument for Trump boils down to freedom of speech as promised in the First Amendment to the Constitution, and, to paraphrase the bard, thereby hangs this tale.

As a former journalist, no one is a bigger defender of the First Amendment than I am. Freedom of speech is the bedrock that allows the media to exist and to report virtually unfettered on stories it considers to be of interest to its audience. But every journalist should recognize that the First Amendment is not absolute. The overused example of exceptions is the claim that no one has the right to yell “fire” in a crowded theater, although I suspect that doing so would be entirely appropriate if the theater was, in fact, on fire. But there are more notable and more important exceptions.

As a refresher, The First Amendment reads as follows:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

It sounds pretty simple, but like most things American, these words have been considered and interpreted over the years by the Supreme Court of the United States, which has generally upheld the Constitution while allowing for limitations on certain categories of speech. Those categories that are given lesser or no protection by the First Amendment include obscenity, fraud, child pornography, speech integral to illegal conduct, speech that incites imminent lawless action, speech that violates intellectual property law, true threats and commercial speech such as advertising. Defamation that causes harm to reputation is also an exception to free speech.

Now I have no evidence (yet) to link Donald Trump to obscenity or child pornography, but as far as I’m concerned, the rest of the exceptions apply directly to him, and collectively should be reasons enough to support a permanent ban from the social media giant.

Let’s take incitement, for example.

The Supreme Court has held that “advocacy of the use of force” is unprotected when it directs people or groups to take lawless action or “is likely to incite or produce such action.” So did you watch TV on January 6? Did you witness five hours of lawless action both inside and outside the U.S. Capitol? Did you also read or hear the dozens or maybe hundreds of lies and misstatements about the 2020 election that encouraged Trump supporters to go to Washington to “stop the steal?” I did, and frankly, I think those three simple words in quotes are sufficient to invalidate Trump’s First Amendment protection as far as Facebook is concerned.

And now let’s talk about fraud.

Officially, the Supreme Court said in 1974 that there is “no Constitutional value in false statements of fact,” and developed a framework that enumerated four such areas for exclusion from First Amendment protection, including false statements that can be subject to civil or criminal liability or are punishable under libel and slander laws. While not all false statements constitute fraud, I looked up the definition of fraud in the dictionary and Donald Trump’s photo was there.

Before he was elected in 2016—when he thought he was going to lose—Trump began a phony narrative that the election would be “rigged” by Democrats to make sure he had no chance to win. That claim failed miserably when he was elected, but that didn’t stop him from rolling it out again in 2020 with unfounded and debunked claims of widespread voter fraud which he said was occurring, remarkably, only in those toss-up states that Trump needed to win re-election.

When state after state investigated the claims and found them to be false, Trump filed a wheelbarrow full of lawsuits in state and federal courts, making the same claims of fraud that no one could find. All of them were dismissed, so when he couldn’t prove voter fraud in court, Trump attempted to overturn the certified election results with a series of speeches and social media posts that culminated in the January 6 rally.

Even today, after everything else has failed, he is still trying to overturn the election of Joe Biden by supporting a secret campaign to recount ballots in Arizona’s largest precinct, which, when it declares him to be the true winner, will no doubt find its way into Georgia, Pennsylvania, Wisconsin and Michigan—the other states Trump needs to claim victory. “Arizona will be the first domino to fall,” Trump has said.

So here’s the point. Donald Trump has built his entire career as a businessman, TV celebrity, real estate developer and politician on some type of fraud. That was proven in the case of Trump University, which admitted to defrauding students expecting to become millionaires; Trump charities, which are now banned in the state of New York; and even Trump’s tax returns, which show how he inflated the value of his properties to secure loans but deflated the value when tax time rolled around.

Now it’s “stop the steal” and the Big Lie that the 2020 election was taken from him by illegal voting.

I could go on, but how many examples of fraud does Facebook need to determine that Trump has forfeited his place on the social media’s daily news feed? I mean, seriously, Donald Trump is the epitome of fraud. If the epitome of fraud isn’t fraud, then there is no fraud, and for my money, if Facebook has no desire to filter out fraud, then maybe there should be no Facebook, either.

The decision has been made, we’re told. Let’s hope it was the right one. Tomorrow will tell.