Summary: After someone close to the Donald Trump reelection campaign (very likely Trump campaign manager Brad Parscale) disseminated a doctored video of House Speaker Nancy Pelosi intended to make the Speaker looked drunk, stoned, or otherwise incapacitated, responsible media operations, including Google’s YouTube, yanked the phony video within hours. But not Facebook. Facebook, stubbornly declaring that the video didn’t violate its murky, highly subjective, (in other words, bullshit), “community standards,” insisted that its users could “decide for themselves,” an abdication of responsibility that came across as sleazy, immoral, and quite possibly criminal as well.
Recently, Facebook cofounder Chris Hughes suggested, in an op-ed piece in the New York Times, that Facebook should be broken up, that it should be required to divest itself of the apps that it spun off as it grew including, most notably, Instagram and WhatsApp. After Facebook refused to pull down the doctored Pelosi video, and after Facebook livestreamed 17 minutes of the mosque massacres in Christchurch, New Zealand, it is no longer sufficient to speak of breaking up the platform. The conversation must now (assuming the advent of a Democratic administration in January 2021) be about putting Facebook out of business as a Racketeer Influenced and Corrupt Organization, and forfeiting its assets the United States and/or the State of California. As Marcus Portius Cato once said, Cartago delenda est: Carthage must be destroyed. Perhaps now is the time for the liberal democracies of the world to say Facebook delenda est.
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Last week, after planned Trump-Schumer-Pelosi infrastructure talks fell apart because Donald Trump had a temper tantrum over allegedly nasty things Nancy Pelosi said about him, Speaker Pelosi addressed the issue in remarks at the Center for American progress. The Trump campaign, ever ready to use immoral, sleazy, and even criminal means to attack its perceived enemies, doctored the video with the intent of making Speaker Pelosi appeared drunk, stoned, or otherwise incapacitated. The fakery was crude and easily detected, and indeed was detected within a couple of hours of the doctored videos being posted on YouTube and Facebook.
YouTube, a subsidiary of Google, immediately did the right thing and yanked the videos, determining that it would be inappropriate for YouTube to be complicit in the dissemination of disinformation from the Trump campaign, presumably from Brad Parscale, Trump’s campaign manager.
But not Facebook.
Facebook’s half-assed response to the revelation that these videos, which had been shared thousands of times on its platform, was simply to “de-promote” the faked, Russian-style disinformation videos, but not to remove them. Instead, Facebook doubled and tripled down on its posture, proclaiming, in tones of what Winston Churchill once described as “injured guilt,” that they were a “social media organization,” not a news organization. Facebook was guilty of a similar enormity after the mosque massacres in Christchurch, New Zealand, when its explanation for livestreaming seventeen, yes, seventeen, minutes of the shooting, was equally muddled and equally morally abhorrent.
What we have seen from Facebook since roughly 2011 is that Facebook has stumbled, staggered, shuffled, and shambled from one scandal to another. First it was a series of privacy gaffes which formed the subject of a 2011 consent agreement with the Federal Trade Commission, which Facebook then went and breached, subjecting it, this spring, to a potential $5bn fine. Next came the Cambridge Analytica imbroglio, which gave Facebook another black eye, then it was the exposure of Facebook’s complicity in the genocide of the Rohingya and the intercommunal strife in Sri Lanka. Of course, we cannot afford to forget the 17 minutes of livestreamed horror in Aotearoa/New Zealand, which caused the Kiwis to question whether Facebook had any moral compass whatsoever.
Of course, if we cannot forget or forgive Facebook’s obvious moral bankruptcy in Aotearoa, or its craven misconduct in Sri Lanka and Myanmar, we also should be equally ill inclined to forget or forgive Facebook's knowing complicity in the Russian attack and the Russian active measures against our election in 2016. Who can forget how Gospodin Zuckerberg scoffed at the idea that the Russians might have misused his platform to steal the election from Hillary Rodham Clinton?
As much as he would not even entertain the idea that the Russians had misused his platform to elect Donald Trump, Gospodin Zuckerberg would no doubt have scoffed at the idea that his employees, who like so many Bay area millennials, made absolutely no secret of their preferential option for Bernard Sanders, applying Facebook’s murky, subjective, indefensible, bullshit so-called community standards to make sure that Facebook gave an indulgent pass to every pro-Sanders attack, and to every vile calumny against the Clinton family, while running aggressive interference for the Independent Vermont senator. Thousands of Clinton loyalist Facebook users were blocked from using the platform (commonly referred to as being “sent to Facebook jail,”) for voicing the slightest criticism of Gospodin Sanders, while vicious, misogynistic attacks by “Berniebros” against Sec. Clinton were given the most indulgent treatment imaginable.
Now that we see the Trump campaign, probably at the urging of campaign manager Brad Parscale as aforementioned, using crude, Soviet/Russian-style tactics to attempt, with limited success, to smear House Speaker Nancy Pelosi, what is even more disturbing is how Facebook has made itself willingly, even eagerly, complicit in such sleazy, immoral, dishonorable, even criminal, tactics. This really ought to be the straw that breaks Gospodin Zuckerberg’s back.
And the responsibility, nay, the liability and the accountability for Facebook’s latest act of wrongdoing ought to land squarely and unequivocally on Mark Zuckerberg himself. Gospodin Zuckerberg personally owns 60% of Facebook’s stock. That makes Mark Zuckerberg the unilateral arbiter of a great deal of the speech that takes place in liberal democracies. In a sycophantic “60 Minutes” segment some years ago profiling Facebook, a number of senior Facebook managers acknowledged that just about every management decision at the company had to pass the so-called Zuck Test, essentially admitting that Gospodin Zuckerberg is himself in absolute control of, and therefore responsible for, everything that happens at Facebook.
Nearly 260 years ago, the great Prime Minister William Pitt, later first Earl of Chatham, in his October 2, 1761 resignation speech from King George III’s Privy Council, stunned his colleagues by articulating the principle of ministerial responsibility thus: “being responsible, I will direct. I will be responsible for nothing I do not direct.” The corollary to the Great Pitt's definition of ministerial responsibility is that he or she who directs must be responsible. In In re Yamashita (1946) 327 U.S. 1; SCOTUS defined in no uncertain terms the principle of command responsibility when it sanctioned the execution for war crimes of Japanese Gen. Yamashita Tomoyuki as the officer bearing “command responsibility” for numerous Japanese atrocities in Manila and throughout the Philippines during the Japanese occupation of those islands.
Given our strong commitment to the Great Chatham’s concept of ministerial responsibility, and to the Common Law/Law of Armed Conflict concept of command responsibility, it is fair to say that the time may very well be at hand for an incoming Democratic administration in January 2021 to set in motion the wheels of federal prosecution, concurrently with California Atty. Gen. Xavier Becerra, to take Gospodin Zuckerberg’s toys away from him. Gospodin Zuckerberg has not been responsible, therefore he should not be allowed to direct anything at all.
Now while Gospodin Zuckerberg's defenders may insist, in cognate tones of injured guilt to Gospodin Zuckerberg himself, that it would be wrong to impute Gospodin Zuckerberg any sort of malice, urging instead that Gospodin Zuckerberg can be held responsible for nothing more than misplaced Silicon Valley idealism, the law may very well hold otherwise. One need not entertain actual malice to have malice at law imputed to one. Malice at law can be imputed, for example, when a shooter discharges, say, an AR-15 into a moving passenger train. Notwithstanding the actor's assertions of "no malice," the risk of severe injury or death to at least one passenger is sufficiently great that the law will simply impute malice.
Now it may be possible that Gospodin Zuckerberg is simply suffering from Asperger’s syndrome or some other form of high-functioning manifestation that nonetheless places him somewhere on the autism spectrum. Certainly, Gospodin Zuckerberg’s curious inability to understand the optics of the scandals into which Facebook has stumbled, staggered, shuffled, and shambled more or less constantly since 2011, raises an inference that he is somewhere on the autism spectrum. However, being on the autism spectrum should not be an excuse when one is at the helm of one of the largest multibillion-dollar corporations on the planet.
Indeed, as French public intellectual Bernard-Henri Lévy has suggested, “Trump and Zuckerberg, though they probably agree on nothing, are the two blades of a pair of scissors,:” joint enemies of American leadership and of the rules-based international liberal democratic order throughout the world. If so --if, in fact, Gospodin Zuckerberg is, either through being somewhere on the autism spectrum, or as a result of some dangerous political leaning, recklessly or even knowingly complicit in the siege against liberal democracy being mounted by such people as Vladimir Vladimirovich Putin, Brazil’s Jair Bolsonaro, Binyamin Netanyahu, Hungary’s Orbán Viktor (who manages to make Hungarian Fascist dictator Nagybányai Horthy Miklós look almost respectable), and, of course, our own Donald Trump, then in fact the law can rightly impute malice to him.
Under such circumstances, either the federal government or the State of California would be justified in investigating Facebook and Gospodin Zuckerberg as a Racketeer Influenced and Corrupt Organization. Certainly, there may be a case to made for wire fraud if Facebook is disseminating information knows to be false and fraudulent. There may also be a case to be made for a seditious conspiracy to attack the authority of the Speaker of the House of Representatives. In either case, an incoming Democratic administration should green-light such investigations immediately.
In his May 9, 2019 op-ed piece in the New York Times, Facebook cofounder Chris Hughes suggested that Facebook should face antitrust enforcement action, being obliged to divest itself of Instagram and WhatsApp, and that Facebook be barred for at least three years from acquiring any further platforms or apps. Given how Facebook has ranged itself so sleazily and so criminally on the side of falsehood and fraudulent disinformation, and given how we now know who side Facebook is really on, mere antitrust enforcement is insufficient. Facebook’s credentials as an enemy of democracy have been clearly established. Nothing less than a criminal RICO investigation and prosecution will suffice to protect the Republic and liberal democracy itself against Facebook and against Gospodin Zuckerberg, with the implication of complete criminal asset forfeiture to the United States and/or the State of California very much on the table.
To borrow from Marcus Portius Cato's insistent trope that Cartago delenda est: Carthage must be destroyed, perhaps the time is at hand to repeat that trope, applying it to Facebook, among our own public institutions of self-government
Facebook delenda est.
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Paul S. Marchand is an attorney who practices in Rancho Mirage and lives in neighboring Cathedral City, where he served eight years as a member of the city council. Like an increasing number of Americans, and like his fellow member of the Francophonie, French public intellectual Bernard-Henri Lévy, he believes that Facebook and Gospodin Zuckerberg represent an existential threat to the rules-based liberal democratic order that has brought freedom and liberty to so much of the world in the last 120 years, and that therefore the democratic world should take comprehensive steps to put Facebook out of business and put Gospodin Zuckerberg behind bars as a serial violator of the Sherman Antitrust Act.
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