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Social Media Legally Falls Under the First Amendment; Here’s How
A court just came close to acknowledging the First Amendment applies to social media. But there is still a lot of ground to cover to protect our free speech rights online.
In Davison v Randall, a local government official blocked a constituent from an “official” Facebook page. The court held this to be viewpoint discrimination, a 1A violation in a long-recognized category of unconstitutional speech restraint. Advocates like the ACLU and Knight Institute supported the case to bolster the argument Trump cannot block people on his Twitter feed; lower courts have agreed it is unconstitutional under the 1A for Trump to silence his critics this way. The Department of Justice is appealing, and the ACLU is happy to build precedent with smaller cases like Davison v Randall, as the Trump case almost certainly will wind its way to the Supreme Court.The ACLU is likely to continue to prevail against Trump. The problem is while narrowly focusing on an individual politician’s responsibility not to block users with unpopular opinions, the courts continue to allow Facebook, et al, to do exactly the same thing on a much larger scale.
In the age of Trump, social media companies’ suspensions skew against conservative and libertarian commentators (I am permanently banned from Twitter) but Facebook could just as easily block all Sanders supporters, or anyone left handed for that matter. Despite this, and driven in part by the ACLU’s apparent desire to only disadvantage Trump and not enlarge 1A protections in ways that might empower his critics, the broader issues are being bypassed in favor of a narrower one.The struggle to grow the 1A to cover social media has a history of piecemeal progress. One victory confirmed the status of social media, when the Supreme Court struck down a law making it a crime for registered sex offenders to use Facebook. Justice Kennedy wrote in Packingham v North Carolina social media is now part of “the modern public square.” Denying access violated the First Amendment.
But the decision made clear unconstitutional denial still has to come from the government. Facebook and others may deny those speech rights any time they want. The argument only the government is covered by the 1A seems to have reached its limit with technology that so grossly delineates whose literal finger clicks the mouse when the results and implications for free speech in our society are exactly the same.
Technology and market dominance complicate the 1A environment by giving greater power to a handful of global companies (currently all American but imagine the successor to Twitter based in Hong Kong with Chinese censors at the helm) even as the law seeks to crave the simplicity of the 19th century. That way of thinking requires willful ignorance that Facebook would never act as a proxy for the government, unconstitutionally barring viewpoints on behalf of a politician who would not be allowed to do it themselves.
Except it already happened. Following a hazy intelligence community assessment accusing the Russians of influencing the 2016 presidential election, Twitter and Facebook punished Russian media RT and Sputnik by banning their advertising in line with the government’s position the two did not deserve the protections of the 1A. Senator Chris Murphy got it. He demanded social media censor more aggressively for the “survival of our democracy,” with companies acting as proxies for those still held back by the First Amendment.
It may even seem to some a valid argument in the realm of social media. But when the same proxy idea appears in the flesh, the underpinning seems less acceptable. It is easy to see how the government using federal law enforcement to bar entry to opposition supporters at a town hall meeting held at some theater is unconstitutional. It is equally easy to see the president’s best friend hiring private security guards to do exactly the same thing would not pass a court challenge, yet that is basically what is currently allowed online.The sub-argument the theater is private property and thus outside the 1A (just like Twitter!) does not hold up. The Supreme Court recognizes two categories of public fora: traditional and limited public forums. Traditional public forums are places like streets, sidewalks, and parks. Limited public forums are not traditionally public, but ones the government has purposefully opened to some segment of the public for “expressive activity.” Like that town hall meeting held in a private theater.
By inviting the public to Facebook for comment, the government transforms a private place into a limited public forum covered by the 1A. The Court only requires a “forum” for 1A purposes “to be private property dedicated to public use” or when the government “retains substantial control over the private property.” Like how the government cannot censor public library books even if the library is located in a private storefront. Like a Facebook page set up and administered by the government.
The most analogous example of how shallow the debate is comes from a technology of the 1980s, one originally expected to change the nature of debate: public access television. Before the Internet, it was envisioned privately-owned cable TV companies would make air time available to the public as “the video equivalent of the speaker’s soapbox.” Even though the channel and equipment used to produce the programming was privately owned, the programming fell under the 1A. The Court concluded “public access channels constituted a public forum, notwithstanding that they were operated by a private company,” the dead solid perfect equivalent of social media.
The faux public-private argument is being double-plus used as a work-around to prohibit disagreeable speech, say by labeling a conservative viewpoint as hate speech and letting @jack banish it. Millennials who celebrate Twitter not being held back by the 1A believe that power will always be used in their favor. But back to the law, which sees further than the millennial obsession with Trump. In City of Lakewood v Plain Dealer the Court held all that power was itself a 1A problem: “The mere existence of the licensor’s unfettered discretion, coupled with the power of prior restraint, intimidates parties into censoring their own speech, even if the discretion and power are never actually abused.”
The once-upon-a-time solution was to take one’s free speech business elsewhere. The 2019 problem is the scale of the most popular social media platforms, near global monopolies all. Pretending Facebook, which claims it influences elections, is just another company is to pretend the role of unfettered debate in a free society is outdated. Technology changed the nature of censorship so free speech is as much about finding an audience as it is about having some place to speak. In 1776 you went to the town square. In 2019 that’s on popular social media. Your unknown blog is as free, and irrelevant, as a Colonist making an impassioned speech alone in his barn.
Asking for the 1A to reach now to social media is in line with the flexibility and expansion the 1A has shown historically. For example, it wasn’t until the post-Civil War incorporation doctrine that the 1A applied equally to the states and not just the federal government. Some private institutions accepting federal funding are already covered by the 1A. The Supreme Court has regularly extended 1A protection to new and non-traditional speech, including nudity and advertising.Facebook and others like it have become the censors the Founding Fathers feared. The problem is the ACLU and other advocates today apply political litmus tests to what speech they will defend. And so they aggressively seek to force the 1A into social media to prevent Trump from blocking users he dislikes, but they have not taken on cases which would force the 1A into social media to prevent Facebook and Twitter from blocking users whose conservative and libertarian ideas upset their own viewpoints.
The greater First Amendment challenge is thus stymied by politics, even while the problem only grows with the greater impact of social media. Yet the cornerstone of free speech, the critical need to have all views represented in a marketplace of ideas, has not changed. One hopes these core elements of our democracy will collide inside the Supreme Court in the near future. If not, the dangers of narrow, short term thinking, that Trump is the problem, not the one of access to free speech, will become more obvious.
Copyright © 2019. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Julian Assange Will Die Alongside Your 1st Amendment Rights
Accidentally disclosed information confirms the U.S. is actively planning to prosecute Julian Assange. What happens to Assange will almost certainly change what can be lawfully published in our democracy. This threat to our freedoms is being largely ignored because the Assange, once a progressive journalist, is now regarded as a hero-turned-zero. At stake? The ability of all journalists to inform the public of things the government specifically wants to withhold.
A clerical error revealed the Justice Department secretly has filed criminal charges against Assange. Court papers in what appears to be an unrelated case used cut-and-pasted language from documents prepared previously against Assange.Though the new information makes clear prosecution is planned if Assange can be delivered to American custody, no further details are available. Assange is under scrutiny at a minimum for unauthorized possession of classified material going back to at least 2010, when Wikileaks burst on to the international stage with evidence of American war crimes in Iraq, and exposed years worth of classified State Department diplomatic cables. More recently, Assange has been accused of trying to manipulate the 2016 U.S. presidential election with his release of emails from the Democratic National Committee server. The emails, some believe, came to Wikileaks via hackers working for the Russian government (Assange denies this) and are deeply tied to the claims of collusion between the Trump campaign and Moscow otherwise known as “Russiagate.” Less publicized in the media but of critical concern inside the U.S. government is Wikileaks’ publication of the so-called Vault 7 materials, CIA hacking and malware tools, which revealed American technical intelligence skills and methods. Assange has hinted on at least one occasion he may have “Vault 8” materials as yet unreleased.
When Assange is prosecuted, on trial with him will be a key question concerning the First Amendment: do journalists actually enjoy special protection against national security charges? Can they publish classified documents because the national interest creates a 1A shield to do so? Or only when the government allows it?
Under the current “rules,” you get caught handing me a SECRET document, you go to jail. Meanwhile, I publish to millions, including any Russian intelligence officers with Internet access, and end up on Kimmel next to Taylor Swift. I whisper “I’m a freedom fighter, you know” into Taylor’s moist ear and she sighs.
Ask Edward Snowden, in dark exile in Moscow. Talk to Chelsea Manning, who spent years in Leavenworth while journalists for the New York Times and the Washington Post won accolades for the stories they wrote based on the documents she leaked. See how many stories today cite sources and reports, almost all of which are based on leaked classified information, stuff the government doesn’t want published yet accepts as part of the way journalism and the 1A work.
Yet despite widespread practice, there is no law rendering journalists immune from the same national security charges their sources go to jail for violating. There is no explicit protection against espionage charges written between the lines of the First Amendment. It is all based on at best an unspoken agreement to not prosecute journalists for revealing classified data, and it appears it is about to be thrown away to nail Julian Assange.
In 1971 Daniel Ellsberg leaked the Pentagon Papers, a classified history of the Vietnam War, to the New York Times. Reporters at the Times feared they would go to jail under the Espionage Act but published anyway, even as the Washington Post wimped out. The Nixon administration quickly found a court to order the Times to cease publication after initial excerpts were printed, the first time in U.S. history a federal judge censored a newspaper.The Supreme Court then handed down New York Times Company v. United States, a victory for the First Amendment which allowed the Papers to be published, but an opinion which sidestepped the larger question about whether the 1A protects journalists publishing classified in favor of simply affirming the government couldn’t censor the news in advance. The Court left the door open for the government to prosecute both the leakers (by dismissing Ellsberg’s leaker case on technical grounds and ignoring his public interest defense) and the journalists who publish them (by focusing narrowly on prior restraint.) The Justices avoided saying the 1A offered a specific shield to journalists in matters of national security.
The Pentagon Papers case has governed everything about national security journalism from that day until the moment the U.S. government finally gets Julian Assange into an American courtroom.
On the source side, the Obama administration was especially virulent in prosecuting leakers. Trump continued the policy by throwing the book at Reality Winner. Both administrations made clear there was nothing to distinguish between taking classified documents to inform the public and taking them say with the intent to hand over secrets to the Chinese. On the other side of the equation, the journalists, the government (including, to date, Trump despite all the noise about attacking the press) has chosen not to prosecute journalists for publishing what leakers hand over to them.
The closest step toward throwing a journalist in jail over classified information came in 2014, when Obama Attorney General Eric Holder permitted subpoenaing New York Times reporter James Risen regarding a former CIA employee. After much legal muscle tussle, the Supreme Court turned down Risen’s appeal, siding with the government in a confrontation between a national security prosecution and infringement of press freedom. The Supreme Court refused to consider whether the First Amendment includes an unwritten “reporter’s privilege” in the free press clause. The Court instead upheld existing decisions finding the Constitution does not give journalists special protections. The door was w-a-y open to throwing Risen in jail.But instead of becoming the first president to jail a journalist for what he published, Obama punted. Happy with the decision affirming they could have prosecuted Risen, with no explanation prosecutors asked the U.S. District Court to simply leave Risen alone. Risen’s alleged source went to jail instead for leaking classified. The unspoken rules stayed intact.
Unspoken rules are useful — they can be read to mean one thing when dealing with the chummy MSM who understands where the unspoken lines are even if they need the occasional brush back pitch like with Risen, and another when the desire is to deep-six a trouble-maker like Assange. Julian Assange poked the Deep State — he exposed the military as war criminals in Iraq (ironically in part for gunning down two Reuters journalists), the State Department as hypocrites, laid bare the CIA’s global hacking games in the Vault 7 disclosures, and showed everyone the Democratic primaries were rigged. None of those stories would have come to light under the MSM alone. And if Assange does know something about Russiagate (did he meet with Manafort?!?), what better place to silence him than a SuperMax.
The government is likely to cite the clear precedent from the Obama years it damn well can prosecute journalists for revealing classified information, and keep the established media happy by offering enough thin exceptions (natsec journalism groupies have already started making lists) to appear to isolate Assange’s crucifixion from setting broad precedent. Say, start with the fact that he wasn’t covered by the 1A outside the U.S., that his sources were Russian hackers seeking to harm the U.S. instead of misguided chaps like Ellsberg and Manning. Assange had no national interest in mind, no sincere desire to inform the public. He, a foreigner no less, wanted to influence the 2016 election, maybe in collusion!
Shamefully, those stuck in journalism’s cheap seats are unlikely to side with Assange, even though they wrote stories off what he published on Wikileaks. They’ll drift along with the government’s nod and wink this is all a one-off against Julian, and those who play by the government’s unspoken rules are still safe.They’ll self-righteously proclaim Assange going to jail a sad but unfortunately necessary thing, claiming he just took things too far dealing with the Russkies, ignoring while the door to prosecute a journalist for national security has always been carefully left open by administrations dating back to Nixon, it is only under their watch that it may be slammed on the hands of one of their own whom they refuse to see, now, for their own misguided self-preservation, as a journalist. The Daily Beast’s take on all this, for example, is headlined a TMZ-esque “Unkempt, Heavily Bearded Julian Assange No Longer Has Embassy Cat For Company.”
They will miss where previous cases avoided delineating the precise balancing point between the government’s need to protect information, the right to expose information, and the media’s right to publish it, an Assange prosecution will indeed create a new precedents, weapons for the future for clever prosecutors. It will be one of those turning points journalists someday working under new press restrictions will cite when remembering the good old days.
Copyright © 2019. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Google, the “Good Censor,” is Going to Think for You
Google might soon add its Terms of Service to the First Amendment.
A leaked document written by Google argues because of a variety of factors, including the election of Donald Trump, what they call the “American tradition” of free speech may no longer be viable. The document lays out how the company can act as the world’s “Good Censor,” protecting us from harmful content and, by extension, harmful acts like electing the wrong president again.
The document, which Google has officially characterized as research, is infuriatingly vague about whether the company has made any decisions or taken any action. So think of all this as a guidepost, like the Ghost of Christmas Future showing us the worst case scenario.
The company is talking about changing the rules so the freedom to speak will no longer exist independent of the content of speech. What you can say could depend on Google’s opinion of whether or not it will negatively affect others. To Google, the personal liberty of freedom of speech might need to be balanced against collective well-being. The company acknowledges for the first time it has the responsibility and power to unilaterally adjudicate this battle between “free-for-all and civil-for-most” versions of society.
We probably should be paying more attention to how they plan to do this, but because the document leaked on Breitbart, and because the initial rounds of censorship have impacted right of center, it has received little critical attention. But the significance of Google’s plans extends beyond the left-right fight; which content is censored is easily changed. If this plan is implemented, everything you will ever read online will be judged before it reaches you. Or doesn’t reach you.
The old ideas seem as archaic to Google (Facebook, Twitter, and their successors) as the powdered wigs the Founders wore when they wrote them. People should be free to say nearly anything they want. In the marketplace of ideas good will overpower bad. If we block one person’s speech, we can soon block others, right up to when it comes to us. The collective right to free speech is more important than an individual’s reaction to that speech. There is an uncomfortable duty to protect speech irrespective of its content.
Jefferson had a good run. Then the election of Donald Trump scared the free speech ideal out of Google. Could they have been… responsible… for helping elect a threat to democracy, the last president, someone who would shape-shift into a dictator? Should they have tried to stop him? Wouldn’t you have killed baby Hitler if you could have?
Under such circumstances, free speech is reimagined by many as a liability which bad actors will exploit judo-style, the tools of democracy used to destroy democracy. The Google document warns “online manipulation and disinformation influenced elections in more than 18 countries, including the U.S. [as] free speech becomes a social, economic and political weapon.”
The irony is the Internet was supposed to be, and maybe briefly was, the highest expression of what is now the legacy definition of unfettered speech. Anyone could start a website to stand alongside the .govs. One voice was as loud as anyone else’s, and search engines were the democratizing connective tissue. Google was created to organize the world’s knowledge, not help control it. Free speech flourished online. Government censors had real restrictions; we know them as borders.
Not so for global entities like Google. What doesn’t pass through their search engines or social media travels through their servers and cloud storage. There is no more pretending any but a minority of users can use another tool, or ignore the web, and still functionally live in the real world. Google sees itself at the nexus of this historic change, saying “Although people have long been racist, sexist, and hateful in many other ways, they weren’t empowered by the Internet to recklessly express their views with abandon.” We apparently can’t handle that, and Google is, for the first time in human history, in a position to do something about it. After all, they acknowledge they “now control the majority of our online conversations” so the Internet is mostly whatever they say it is.
At that point, Google worries, the “we’re not responsible for what happens on our platforms” defense crumbles. How much the last election was influenced doesn’t matter as much as the realization the tools are in place to do it more effectively next time. Existing laws can limit foreigners buying political ads stuffed with controversial news, but if Americans want to do the same thing laws not only don’t limit them, the legacy version of the 1A demands they be allowed to blast out hate speech and gendered bigotry. Something has to be done. Google’s document says they as the apex predator can now create online “well-ordered spaces for safety and civility.”
There is no one to stop them. It is very clear what private companies can do vis-a-vis speech; the argument is over what they should do. Thanks to Section 230 of the Communications Decency Act, Google is shielded from traditional publishers’ liability and responsibility. The 1A does not apply. No one at Google stands for election. Users matter only in the aggregate of millions of clicks. Google as the Good Censor would be accountable to pretty much no one (though the Supreme Court last week agreed to hear a long-shot case that could determine whether users can challenge social media companies on free speech grounds.)
As proof-of-concept – what they are capable of doing – the Google document cites Charlottesville. Following racial violence, Google, GoDaddy, and Cloudflare quietly ganged up to end their relationships with The Daily Stormer, “effectively booting it off the Internet.” Google noted “While some free speech advocates were troubled by the idea that ‘a voice’ could be silenced at its source, others were encouraged by the united front the tech firms put up.” Same with Alex Jones, as corporations serially kicked him off their sites. Facebook and Twitter also actively censor, with Facebook removing over 800 political pages for “coordinated inauthentic behavior,” an Orwellian term Facebook claims means they were not forums for “legitimate political debate.”
Google and the others aren’t acting in a vacuum. Some 69% of American college students believe intentionally offensive language should be banned. The ACLU now applies a litmus test to cases it defends, weighing their impact on other rights (for example, the right to say the N-word versus the rights of POC not to hear it), declaring free speech can be secondary to other political goals. As Google suggests, censorship has a place, per the ACLU, if it serves a greater good.
The document makes clear Google understands current censorship efforts have fallen short. Decisions have been imprecise, biased, and influenced by shares and likes. Yet while acknowledging they never will please everyone, Google is emphatic it can’t escape “its responsibility for how society functions and progresses.” So the document is rich in words like transparency and fairness as it wrestles with the complexity of the task, with Google envisioning itself as more an imperfect but benign curator than Big Brother. But like a bad horror movie, you can see the ending from miles away.
Eliminating voices to “not influence” an election is influencing an election. Once one starts deleting hate speech, there is no bottom to the list of things offensive to someone. Once you set your goal as manipulating thought via controlling information, the temptation to use that tool will prove great. Why not manipulate stock prices to fund “good” nonprofits and harm bad ones? Who should be elected in Guatemala? What’s the Google solution for that land dispute in St. Louis? It is so easy. Just placing links for one candidate above another in a test search increased the number of undecided voters who chose that candidate by 12%.
The cornerstone of free speech – the absolute right to speak remaining independent of the content of the speech – is now in the hands of corporate monopolies, waiting for them to decide whether or not to use the power. Where the Supreme Court refused to prohibit hate speech, Google can do so. Where the 1A kept the government from choosing what is and isn’t called true, Google may decide. Journalists can take a first pass at writing news, but Google is the one positioned to determine if anyone sees it. Like some TV murder mystery, Google is perched on the edge of a terrible decision, having tested opportunity, means, and method. All that’s left is the decision to pull the trigger.
Copyright © 2019. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Corporate Censorship Brought Us the America I Always Feared
When I was in Iran earlier this year, the government there blocked Twitter, deciding for a whole nation what they can not see. In America, Twitter purges users, deciding for a whole nation what they can not see. It matters little whose hand is on the switch, the end result is the same. This is the America I always feared I’d see.
Speech in America is an unalienable right, and goes as deep into the concept of a free society as any idea can. Thomas Jefferson wrote of the right flowing from his notion of a Creator, not from government. Jefferson’s 18th century invocation is understood now as less that free speech is heaven-sent and more that it is something existing above government. And so the argument the First Amendment applies only to government and not to all public speaking (including private platforms like Twitter) is thus both true and irrelevant, and the latter is more important.
The government remains a terrifying threat to free speech. An Espionage Act prosecution against Wikileaks’ Julian Assange will create precedent for use against any mainstream journalist. The war on whistleblowers which started under Obama continues under Trump. Media are forced to register as propaganda agents. Universities restrict controversial speakers. The Trump administration no doubt will break the record (77%) for redacting or denying access to government files under the Freedom of Information Act.
But there is another threat to freedom of speech now, corporate censorship. It is often dressed up with NewSpeak terms like deplatforming, restricting hate speech, or simply applying Terms of Service. Corporations always did what they wanted with speech. Our protection against corporate overreach used to rely on an idea Americans once held dear, enshrined as “I disapprove of what you say, but I will defend your right to say it.” The concept was core to a democracy: everyone supports the right of others to throw ideas into the marketplace independent. An informed people would sort through it all, and bad ideas would be pushed away by better ones. That system more or less worked for 240 years.
For lack of a more precise starting point, the election of Donald Trump did away with near-universal agreement on defending the right to speak without defending the content, driven by a belief too much free speech helped Trump get elected. Large numbers of Americans began not just to tolerate, but to demand censorship. They wanted universities to deplatform speakers they did not agree with, giggling over the fact the old-timey 1A didn’t apply and there was nothing “conservatives” could do. They expressed themselves in violence, demanding censorship by “punching Nazis.” Such brownshirt-like violence was endorsed by The Nation, once America’s clearest voice for freedom. The most startling change came within the American Civil Liberties Union, who enshrined the “defend the right, not the speech” concept in the 1970s when it defended the free speech rights of Nazis, and went on to defend the speech rights of white supremacists in Charlottesville.
Not so much anymore. The ACLU now applies a test to the free speech cases it will defend, weighing their impact on other rights (for example, the right to say the N-word versus the rights of POC.) The ACLU in 2018 is siding with those who believe speech can be secondary to other political goals. Censorship has a place, says the ACLU, when it serves what they believe is a greater good.
A growing segment of public opinion isn’t just in favor of this, it demands it. So when years-old tweets clash with 2018 definitions of racism and sexism, companies fire employees. Under public pressure, Amazon removed “Nazi paraphernalia and other far-right junk” from its online store. It was actually just some nasty Halloween gear and Confederate flag merch, but the issue is not the value of the products — that’s part of any free speech debate — it’s corporate censorship being used to stifle debate by literally in this case pulling things out of the marketplace.
Alex Jones’ InfoWars was deplatformed off download sites where it has been available for years, including Apple, YouTube (owned by Google), Spotify, and Amazon, for promoting “hate speech.” Huffington Post wondered why more platforms, such as Instagram, haven’t done away with Jones and his hate speech.
That term, hate speech, clearly not prohibited by the Supreme Court, is an umbrella word now used by censorship advocates for, well, basically anything they don’t want others to be able to listen to or watch. It is very flexible and thus very dangerous. As during the McCarthy-era in the 1950s when one needed only to label something “Communist” to have it banned, so it is today with the new mark of “hate speech.” The parallels are chilling — it was in the McCarthy-era Hollywood created its infamous blacklists, actors and writers who could not work because of their political beliefs.
Twitter is perhaps the most infamous platform to censor its content. The site bans advertising from Russian media outlets RT and Sputnik. Twitter suspends the accounts of those who promote (what it defines as) hate and violence, “shadow bans” others to limit their audience, and tweaks its trending topics to push certain political ideas and downplay others. It regularly purges users and bans “hateful symbols.” There are near-daily demands by increasingly organized groups calling on Twitter to censor specific users, with Trump at the top of that list. The point is always the same: to limit what ideas you can be exposed to and narrow debate.
Part of the 2018 problem is the trust people place in “good companies” like Amazon, Facebook, and Twitter. Anthropomorphizing them as Jeff, and Zuck, and @jack is popular, along with a focus on their “values.” It seems to make sense, especially now when many of the people making decisions on corporate censorship are the same age and hold the same political views as those demanding they do it.
Of course people age, values shift, what seems good to block today might change. But the main problem is companies exist to make money and will do what they need to do to make money. You can’t count on them past that. Handing over free speech rights to an entity whose core purpose has nothing to do with free speech means they will quash ideas when they conflict with what they are really about. People who gleefully celebrate the fact that @jack who runs Twitter is not held back by the 1A and can censor at will seem to believe he will always yield his power in the way they want him to.
Google has a slogan reading “do no evil.” Yet in China Google will soon deploy Dragonfly, a version of its search engine that will meet Beijing’s demands for censorship by blocking websites on command. Of course in China they don’t call it hate speech, they call it anti-societal speech, and the propaganda Google will block isn’t from Russian bots but from respected global media. In the U.S. Google blocks users from their own documents saved in Drive if the service feels the documents are “abusive.” Backin China Apple removes apps from its store on command of the government in return for market access. Amazon, who agreed to remove hateful merch from its store in the U.S., the same week confirmed it is “unwaveringly committed to the U.S. government and the governments we work with around the world” using its AI and facial recognition technology to spy on their own people. Faced with the loss of billions of dollars, as was the case for Google and Apple in China, what will corporations do in America?
Once upon a time an easy solution to corporate censorship was to take one’s business elsewhere. The 2018 problem is with the scale of platforms like Amazon, near global monopolies all. Pretending Amazon, which owns the Washington Post, and with the reach to influence elections, is just another company that sells things is to pretend the role of unfettered debate in a free society is outdated. Yeah, you can for now still go through hoops to download stuff outside the Apple store or Google Play, but those platforms more realistically control access to your device. Censored on Twitter? No problem big guy, go try Myspace, and maybe Bing will notice you. Technology and market dominance changed the nature of censorship so free speech is as much about finding an audience as it is about finding a place to speak. Corporate censorship is at the cutting edge of a reality targeting both speakers (Twitter suspends someone) and listeners (Apple won’t post that person’s videos made off-platform). Ideas need to be discoverable to enter the debate; in 1776 you went to the town square. In 2018 it’s Twitter.
In the run up to the midterm elections, Senator Chris Murphy, ironically in a tweet, demanded social media censor more aggressively for the “survival of our democracy,” implying those companies can act as proxies for those still held back by the First Amendment. We already know the companies involved can censor. The debate is over what happens when they do.
A PERSONAL NOTE: Some readers are aware I have been permanently suspended from Twitter as @wemeantwell. This followed exchanges with several mainstream journalists over their support for America’s wars and unwillingness to challenge government lies. Twitter sent an auto-response saying what I wrote “harasses, intimidates, or uses fear to silence someone else’s voice.” I don’t think I did any of that, and I wish you didn’t have to accept my word on it. I wish instead you could read what I wrote and decide for yourself. But Twitter won’t allow it. Twitter says you cannot read and make up your own mind. They have in fact eliminated all the things I have ever written there over seven years, disappeared me down the Memory Hole. That’s why all censorship is wrong; it takes the power to decide what is right and wrong away from you and gives it to someone else.
I lost my career at the State Department because I spoke out as a whistleblower against the Iraq War. I’ve now been silenced, again, for speaking out, this time by a corporation. I am living in the America I always feared.
Copyright © 2019. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Why I Support Julian Assange (And Why You Should Too)
This weekend I joined a number of people in an online vigil in support of Wikileaks’ Julian Assange.
People ask why I did it; Assange is at best imperfect in who he is and what he does. But supporting him transcends him, because the battle over the prosecution of Assange is where the future of free speech and a free press will be decided. Even if you think Assange doesn’t matter, those things do.
Assange is challenging to even his staunchest supporters. In 2010 he was a hero to opponents of the wars in Iraq and Afghanistan. Others called him an enemy of the state for working with whistleblower Chelsea Manning. Now most of Assange’s former supporters see him as a enemy of the state and Putin tool for releasing the Democratic National Committee emails. Even in the face of dismissed charges of sexual assault, Assange is a #MeToo villain. He a traitor who hides from justice inside the Ecuadorian embassy in London, or a spy, or some web-made Frankenstein with elements of all of the above. And while I’ve never met Assange, I’ve spoken to multiple people who know him well, and the words generous, warm, or personable rarely are included in their descriptions. But none of that really matters.Support is due because Assange ends up being the guy standing at a crossroads in the history of our freedoms – specifically, at what point does the need for the people to know outweigh laws allowing the government to keep information from view? The question isn’t new, but becomes acute in the digital age, where physical documents no longer need to be copied one-by-one, can be acquired by hackers from the other side of the world, and where publishing is far removed from the traditions, obstacles, safeguards, and often-dangerous self-restraint of traditional journalism.
A complex history precedes Assange. In 1971 Daniel Ellsberg leaked the Pentagon Papers, a secret U.S. government-written history of the Vietnam War, to the New York Times. No one had ever published such classified documents before, and reporters at the Times feared they would go to jail under the Espionage Act. A federal court ordered the Times to cease publication after an initial flurry of excerpts were printed, the first time in U.S. history a federal judge censored a newspaper. In the end the Supreme Court handed down a victory for the First Amendment in New York Times Company v. United States and the Times won the Pulitzer Prize.But looking at the Times case through the lens of Wikileaks, law professor Steve Vladeck points out “although the First Amendment separately protects the freedom of speech and the freedom of the press, the Supreme Court has long refused to give any separate substantive content to the Press Clause above and apart from the Speech Clause… The Supreme Court has never suggested that the First Amendment might protect a right to disclose national security information. Yes, the Pentagon Papers case rejected a government effort to enjoin publication, but several of the Justices in their separate opinions specifically suggested that the government could prosecute the New York Times and the Washington Post after publication, under the Espionage Act.”
The Supreme Court left the door open to prosecute journalists who publish classified documents by focusing narrowly on prohibiting the government from exercising prior restraint. Politics and public opinion, not law, has kept the government exercising discretion in not prosecuting journalists, a delicate dance around this 800 pound gorilla loose in the halls of democracy. The government meanwhile has aggressively used the Espionage Act to prosecute the whistleblowers who leaked to those same journalists.
The closest things came to throwing a journalist in jail was in 2014, when the Obama administration subpoenaed New York Times reporter James Risen. The government accused former CIA officer Jeffrey Sterling of passing classified information to Risen, information it said appeared in his book State of War. After a lower court ordered Risen under threat of jail to testify and disclose his source, the Supreme Court turned down Risen’s appeal, siding with the government in a confrontation between a national security prosecution and an infringement of press freedom. The Supreme Court refused to consider whether there existed a gentlemen’s agreement under the First Amendment for “reporter’s privilege,” an undocumented protection beneath the handful of words in the free press clause.In the end the government, fearful of setting the wrong precedent, punted on Risen. Waving the flag over a messy situation, then-Attorney General Eric Holder announced “no reporter who is doing his job is going to go to jail.” Risen wasn’t called to testify and was not punished for publishing classified material, even as the alleged leaker, Jeffrey Sterling, disappeared into jail. To avoid the chance of a clear precedent that might have granted some form of reporter’s privilege under the Constitution, the government stepped away from the fight. The key issues now wait for Julian Assange.
Should the government prosecute Julian Assange, there are complex legal questions to be answered about who is a journalist and what is publishing in the digital world. There is no debate over whether James Risen is a journalist, and over whether a book is publishing. Glenn Greenwald has written about and placed online classified documents given to him by Edward Snowden, and has never been challenged by the government as a journalist or publisher. Both men enjoy popular support, and work for established media. The elements of fact checking, confirming, curating, redacting, and in writing context around the classified information, were all present in the New York Times’ case with the Pentagon Papers, and are present with American citizens Risen and Greenwald. Definitions and precedent may be forming.Assange is an easier target. The government has the chance to mold the legal precedents with such certainty that they may seize this case where they have backed away from others in the long-running war of attrition against free speech and the press.
Assange isn’t an American. He is unpopular. He has written nothing alongside the millions of documents on Wikileaks, has done no curating or culling, and has redacted little information. Publishing in his case consists of simply uploading what has been supplied to him. It would be easy for the government to frame a case against Assange that set precedent he is not entitled to any First Amendment protections simply by claiming clicking UPLOAD isn’t publishing and Assange isn’t a journalist. The simplest interpretation of the Espionage Act, that Assange willfully transmitted information relating to the national defense without authorization, would apply. Guilty, same as the other canaries in the deep mineshaft of Washington, DC before him, no messy balancing questions to be addressed. And with that, a unique form of online journalism would be squashed.
And that really, really matters. Wikileaks sidesteps the restraints of traditional journalism. Remember in 2004 the New York Times held the story of George W. Bush’s illegal warrantless eavesdropping program until after his reelection. In 2006 the Los Angeles Times suppressed a story on wiretaps of Americans when asked by the NSA. Glenn Greenwald said it plainly: too many journalists work in self-censoring mode, “obsequious journalism.” Meanwhile Assange has made mistakes while broadly showing courage, not restraint, under similar circumstances. The public is better informed because of it.Wikileaks’ version of journalism says here are the cables, the memos, and the emails. Others can write about them (and nearly every mainstream media outlet has used Wikileaks to do that, some even while calling Assange a traitor), or you as a citizen can simply read the stuff yourself and make up your own damn mind. That is the root of an informed public, through a set of tools never before available until Assange and Internet created them.
If Assange becomes the first successful prosecution of a third party, as a journalist or not, under the Espionage Act, the government can turn that precedent into a weapon to attack the media’s role in any national security case. On the other hand, if Assange can leave London for asylum in Ecuador, that will empower new journalists to provide evidence when a government serves its people poorly and has no interest in being held accountable.
Freedom is never static. It either advances under our pressure, or recedes under theirs. I support Julian Assange.
Copyright © 2019. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Julian Assange and the Future of a Free Press (Long Form)
This weekend I joined a number of people including Dan Ellsberg, John Kiriakou, Scott Horton, and Caitlin Johnstone in a 38 hours online vigil in support of Wikileaks’ Julian Assange. People ask why I did it, because Julian Assange and his Wikileaks organization are at best imperfect in who they are and what they do. But those imperfections are both of interest and do not matter. Supporting him transcends him, because the battle over the prosecution of Assange is where the future of free speech and a free press in the digital age will be decided. Even if you think Assange doesn’t matter, those things do.
Supporting Julian Assange and Wikileaks is complicated. In 2010 a hero to then-opponents of American imperialism in Iraq and Afghanistan while being labeled by others as an enemy of the state for working with whistleblower Chelsea Manning, today most of Assange’s former supporters from the left see him as a enemy of the state for allegedly working with Vladimir Putin to leak the Democratic National Committee emails. Many who opposed Assange’s work from the right now support him for helping defeat Hillary Clinton. Assange is a traitor who runs from justice, or a journalist, or a hero, or a spy, or some Frankenstein with elements of all of the above. And while I’ve never met Assange, I’ve spoken to multiple people who know him well, and the words generous, warm, or personable rarely are included in their descriptions.
Assange’s biography is challenging to even his staunchest supporters. After Wikileaks’ release of a half million highly classified documents in 2010, including evidence of war crimes and thousands of State Department internal cables, Assange was accused of sexual assault in Sweden under ambiguous circumstances. He was questioned there, but never charged or arrested, and left for the UK. The Swedes decided to continue their investigation, but instead of exercising options via Interpol to question Assange in the UK, instead insisted their inquiries could only be made on Swedish soil and requested the UK return Assange against his will. The British arrested Assange, though he was released on bail. Fearing the whole thing was a set-up to extradite him to the U.S. via Sweden, Assange jumped bail. Fearing the same faux process would see Britain send him to the U.S., Assange then obtained asylum, and later citizenship, from the Ecuadorian embassy in London. After claiming for years they could never interview him outside of Sweden, the Swedes reversed themselves and interviewed Assange in London in 2016. They soon dropped the charges. Britain meanwhile still plans to arrest Assange for failing to appear in court for an eight year old case that basically no longer exists, and will not assure him safe passage out of the UK. Assange has been living inside the Ecuadorian embassy for over five years.
Contrary to popular belief, embassies are not the sovereign territory of their owners. However, the 1961 Vienna Convention on Diplomatic Relations codified a custom that has been in place for centuries when it established the “rule of inviolability.” This prohibits local police from entering an embassy for any purpose without the permission of the ambassador. This is why Assange is safe from arrest as long as he stays within the walls of the Ecuadorian embassy, and of course in their good graces.
The idea of a lengthy stay inside an embassy for asylum is not new. The longest such episode was that of Hungarian Cardinal Jozsef Mindszenty, who spent 15 years inside the American Embassy in Budapest, protected from the Soviet Union. In 1978 Russian Pentecostalists broke into the American Embassy in Moscow, demanding protection from religious persecution. They lived in the embassy basement for five years before a deal sent them to Israel. In 1989, Chinese dissident Fang Li-zhi resided in the American Embassy in Beijing for a year before being allowed to travel to the United States. More recently, in 2012, blind Chinese dissident Chen Guang-cheng spent six days in the American Embassy in Beijing, before then-Secretary of State Hillary Clinton negotiated his safe passage to the U.S. The irony is in all those incidents, the United States was the protector. America today instead looks petty and mean standing alongside Soviet Russia and Communist China in pressing hard against one man aside the broader wave of history.
Should some process deliver Assange into American custody, he would be charged under the Espionage Act, a 1917 law used aggressively by the Obama administration to prosecute whistleblowers, including Chelsea Manning, and by the Trump administration to prosecute whistleblower Reality Winner. Under the Act, Assange would be prohibited from offering a “public interest” defense; his unauthorized possession of classified materials alone would ensure a guilty verdict, in that the Act does not distinguish between possession for journalistic purposes to inform the public, and possession say with the intent to hand over secrets to Russian intelligence. Assange, as with the others prosecuted under the Espionage Act (Edward Snowden would face similar circumstances on trial in America), would be found guilty and simultaneously be denied the chance to defend himself based on a free speech/public interest defense. The Espionage Act was created long before anyone coined the phrase Catch-22, but it seemed to have that spirit in mind.
But support for Assange, as for Snowden and other whistleblowers yet unnamed, is due because the stakes go far beyond one person’s rights and freedoms. What happens to Julian Assange will set precedent regarding free speech, freedom of the press, and the publication of classified and suppressed documents in pursuit of an informed public and representative accountability for many years to come.
The Espionage Act has a sordid history, having once been used against the government’s political opponents. Targets included labor leaders and radicals like Eugene V. Debs, Bill Haywood, Philip Randolph, Victor Berger, John Reed, Max Eastman, and Emma Goldman. Debs, a union leader and socialist candidate for the presidency, was, in fact, sentenced to 10 years in jail for a speech attacking the Espionage Act itself. The Nixon administration infamously (and unsuccessfully) invoked the Act to bar the New York Times from continuing to publish the classified Pentagon Papers.
Assange poses a dilemma for the United States in its ongoing push-pull in balancing the power of the government to protect classified information (rightly or wrongly), the clear guarantees to free speech and a free press in the First Amendment, and the broader concept of the need for an informed populace to challenge their government and make a peoples’ democracy work in practice.
At what point does the need for the people to know outweigh any laws allowing the government to keep it from view, such that someone may expose information, despite its classification? If punishment appears necessary, should the thief be punished, should the journalist who publishes it be punished, or should neither, or should both? The questions become acute in the digital age, where physical documents no longer need to be copied one-by-one, and where publishing is far removed from the traditions, obstacles, safeguards, backdoor pressures, self-restraint, and occasional deep subject matter knowledge of traditional journalism.
A complex and at times ambiguous history precedes Assange. In 1971 Daniel Ellsberg leaked the classified Pentagon Papers to the New York Times. The Papers were a 7,000 page classified history of the Vietnam War prepared under the order of then-Secretary of Defense Robert McNamara. We know now McNamara, while publicly supporting the war, was privately consumed by doubt, and ordered the Papers written as his act of contrition.
The risks for journalists were huge — no one had ever published such classified documents before, and the senior staff at the Times feared they would go to jail under the Espionage Act. The Nixon administration found a court to order the Times to cease publication after an initial flurry of excerpts were printed in June 1971, the first time in U.S. history a federal judge censored a newspaper. Things got so dicey the Times’ outside counsel actually quit the night before his first appearance in court, claiming the newspaper, his own client, had indeed broken the law.
Despite such pessimism, the Supreme Court handed down a landmark victory for the First Amendment in New York Times Company v. United States. The Times won the Pulitzer Prize. Ellsberg was charged under the Espionage Act, though his case was dismissed for gross governmental misconduct and illegal evidence gathering without the underlying issues being addressed, most prominently Ellsberg’s defense he was morally compelled to leak the classified information to the Times, claiming “I felt that as an American citizen, as a responsible citizen, I could no longer cooperate in concealing this information from the American public.”
But looking at the Times case through the lens of Wikileaks, University of Texas law professor Steve Vladeck is careful to point out “Although the First Amendment separately protects the freedom of speech and the freedom of the press, the Supreme Court has long refused to give any separate substantive content to the Press Clause above and apart from the Speech Clause… The Supreme Court has never suggested that the First Amendment might protect a right to disclose national security information. Yes, the Pentagon Papers case rejected a government effort to enjoin publication, but several of the Justices in their separate opinions specifically suggested that the government could prosecute the New York Times and the Washington Post after publication, under the Espionage Act.”
In its simplest form, the Supreme Court left the door open for the government to prosecute both the leaker who takes the documents (by dismissing the case without setting a precedent) and the journalists who publish them (by focusing narrowly on prohibiting the government from exercising prior restraint.)
What has happened since has been little more than a very delicate dance around the 800 pound gorilla in the halls of democracy. The government has aggressively prosecuted whistleblowers under the Espionage Act (The Obama administration prosecuted eight whistleblowers under the Espionage Act, more than all previous presidential administrations combined) while choosing not to prosecute journalists for publishing what the whistleblowers hand over to them.
In one of the first of a series of attempts to make journalists reveal their sources, former Fox News reporter Mike Levine stated the Justice Department persuaded a federal grand jury to subpoena him in January 2011. The demand was that he reveal his sources for a 2009 story about Somali-Americans who were secretly indicted in Minneapolis for joining an al-Qaeda-linked group in Somalia. Levine fought the order and the Department of Justice finally dropped it without comment in April 2012. Call it a failed test case.
The closest things came to throwing a journalist in jail over classified information was in 2014, when Obama administration Attorney General Eric Holder gave federal prosecutors permission to subpoena New York Times reporter James Risen regarding a former employee of the Central Intelligence Agency. The government accused former CIA officer Jeffrey Sterling of passing classified information to Risen, information it said appeared in his 2006 book State of War. Holder issued the subpoena in line with his July 2013 Department of Justice guidelines on seeking information from the news media. That guidance sought to circumvent a court precedent being set by providing limited, discretionary protection for the media in some civil and criminal proceedings following scandals involving the DOJ seizing phone records and emails of reporters from the Associated Press and Fox News.
Risen refused to comply with the subpoena, which would have required him to disclose his source. After a lower court ordered Risen under threat of jail time to testify, the Supreme Court in June 2014 turned down Risen’s appeal. That left him facing a choice to reveal his source or go to jail. The Court’s one-line order gave no reasons but effectively sided with the government in a confrontation between securing evidence in a national security prosecution and an intolerable infringement of press freedom. The Supreme Court refused to consider whether there existed a sort of gentlemen’s agreement under the First Amendment for “reporter’s privilege,” an undocumented protection beneath the handful of words in the free press clause. By not making a new decision, the Court effectively upheld the existing decision by a federal appeals court finding that the Constitution does not give journalists special protection from the law.
That decision was more or less in line with the ambiguous way the Supreme Court has always looked at the unwritten special protections for journalists. The only real ruling on what special rights the media may hold under the free press clause came in 1972, in Branzburg v. Hayes. The Court decided reporters were not shielded from grand jury subpoenas, asserting judges must strike a “proper balance between freedom of the press and the obligation of all citizens to give relevant testimony.” From time to time lower courts have chosen to interpret that phrase as meaning there is indeed some sort of unwritten balancing test concerning the media, while other courts have read the same words to mean media should be compelled to testify.
In the end of the Risen case, the government, fearful of setting the wrong precedent and confident it otherwise had the evidence to convict Jeffrey Sterling, punted. Waving the flag noblely over a messy situation, Attorney General Holder announced “As long as I am attorney general, no reporter who is doing his job is going to go to jail.” Federal prosecutors asked the U.S. District Court in Alexandria, Virginia to “exclude James Risen as an unavailable witness” and said the jury “should draw no inferences, favorable or unfavorable” based on his absence as a witness.
Risen didn’t testify, and was not punished for publishing classified material by the government’s choice to back away from his case. The alleged leaker, Jeffrey Sterling, was thrown into jail for over two years. In 2015 Google turned over the Gmail account and metadata of a WikiLeaks employee in response to a federal warrant.
No court precedent was set. The door was left open. To avoid a clear precedent that would grant journalists a reporter’s privilege under the Constitution, the government stepped away from the fight. While the balancing question of the “public interest” has been poked at in other contexts, no one has shown where the balancing point is between the government’s need to protect information, a citizen’s right to expose information, and the media’s right to publish it. That all waits for Julian Assange.
Should the government bring Espionage Act charges against Julian Assange, there are complex legal questions to be answered about what if any First Amendment protections if any apply. Assange is not an American citizen and was not under U.S. jurisdiction when his actions regarding classified documents occurred. Is the fact that Wikileaks’ servers reside outside the United States and thus outside the protections of the First Amendment controlling, or does cyberspace lack such boundaries? By the way they chose to bring their case, government attorneys can influence how legal precedent is set on those matters. And if the United States can prosecute someone under those circumstances, any other government could demand foreign reporters anywhere on earth be extradited for violating their laws.
The question also exists of who is a journalist and what is publishing in the digital world where thousands of files can be uploaded to a site instead of waiting for printing presses to run off copies. There is no debate over whether James Risen is a journalist, and over whether producing a book is publishing. Glenn Greenwald, Jeremy Scahill, and The Intercept, who have for years been writing about and placing online highly classified documents given to them by Edward Snowden, have never been challenged by the government as “journalists” or “publishers.” The elements of fact checking, confirming, curating, redacting, and in writing context around the classified information, were present in the New York Times’ case with the Pentagon Papers, and are present with Risen and Greenwald, et al. All involved are American citizens.
Almost none of that applies to Assange. He has written nothing alongside the millions of documents on Wikileaks, has done no curating or culling, and has redacted information at times and not at others. Publishing in his case consists of simply uploading what has been supplied to him to a website. It would be easy for the government to frame a case against Assange that set precedent he is not entitled to any First Amendment or reporter’s privilege protections whatever they may be — clicking UPLOAD isn’t publishing and Assange isn’t a journalist. The simplest interpretation of 18 U.S.C. § 793(e) in the Espionage Act, that Assange willfully transmitted information relating to the national defense without authorization would apply. Guilty, same almost all of the leakers, whistleblowers, data thieves, hackers, and other canaries in the deep mineshaft of Washington, DC before him.
And that really, really matters. Wikileaks sidestepped the restraints of traditional journalism to bring the raw material of history to the people. Never mind whether or not a court determined disclosure of secret NSA programs which spied on Americans disclosure was truly in the public interest. Never mind the New York Times got a phone call from the President and decided not to publish something. Never mind how senior government officials are allowed to selectively leak information helpful to themselves. Never mind what parts of an anonymous technical disclosure a reporter understood well enough to write about, here are the cables, the memos, the emails, the archives themselves. Others can write summaries and interpretations if they wish (and nearly every mainstream media outlet has used Wikileaks to do that, some even while calling Assange and his sources traitors), or you as an individual can simply read the stuff yourself and make up your own damn mind about what the government is doing. Fact checks? There are the facts themselves in front of you. That is the root of an informed public, through a set of tools and freedoms never before available until the Wikileaks and Internet created them.
Allowing these new tools to be broken over the meaning of the words journalist and publishing will stifle all of the press. If Assange becomes the first successful prosecution of a third party under the Espionage Act, the government can then turn that precedent into a weapon to aggressively attack the media’s role in say national security leaks. Is a reporter, for example, publishing a Signal number and asking for government employees to leak to her in fact soliciting people to commit national security felonies? Will media employees have to weigh for themselves the potential public interest, hoping to avoid prosecution if they differ from the government’s opinion? The government in the case of Assange may see the chance to mold the legal precedents with such certainty that they will seize this chance where they have backed away from others. The Assange case may prove to be the topper in a long-running war of attrition against free speech.
In mid-2004, James Risen and Eric Lichtblau uncovered George W. Bush’s illegal warrantless eavesdropping program, but the New York Times held the story for 15 months, until after Bush’s reelection. Executives at the Times were told by administration officials that if they ran the story, they’d be helping terrorists. They accepted that. In 2006 the Los Angeles Times similarly gave in to the NSA and suppressed a story on government wiretaps of Americans. Glenn Greenwald said it plainly: too many journalists have gone into a self-censoring mode, practicing “obsequious journalism.”
Assange, and those who follow him in this new paradigm of journalism and publishing, have made mistakes while broadly showing courage, not restraint, under similar circumstances and the public is better informed because of it. In the words of one commentator, “WikiLeaks liberates the right to free speech from authorities that restrict access.” Along the way the 2007 release of the Kroll report on official corruption in Kenya affected a national election, while in 2009 Wikileaks exposed the moral bankruptcy of Iceland’s banks. A 2011 Amnesty International report pointed to the role of leaked documents in triggering revolutionary global uprisings. The BBC said Wikileaks revelations were a spark for the Arab spring.
“This is the biggest free speech battle of our lifetimes,” said the Electronic Frontier Foundation. “This is the moment when we will see whether publishers can continue to freely distribute truthful political information online.”
I support Assange because he is someone who fell into a place and time where crucial decisions will be made. Allowing Assange to speak now, and to travel unfettered to Ecuador and permanent asylum will allow others after him to continue to provide evidence when a government serves its people poorly and has no interest in being held accountable. Prosecution of Julian Assange can only come from a nation which fears the noise of democracy and prefers the silence of compliance.
Copyright © 2019. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
FARA: Freedom of the Press, But On the Government’s Terms
A bipartisan group of lawmakers called for Attorney General Jeff Sessions to investigate if Al Jazeera, the news outlet connected to the Qatari government, should register with the Justice Department as an agent under the Foreign Agents Registration Act (FARA.)This has broad implications for our First Amendment, our access to dissenting opinions, and in how the rest of the world views us.
The lawmakers claim Al Jazeera “directly undermines American interests” and broadcasts “anti-American, anti-Semitic, and anti-Israel” material. Al Jazeera would join Russian outlets RT and Radio Sputnik, Japan’s Cosmomedia, the Korean Broadcasting System, and the China Daily in registering as foreign state propaganda outlets. DOJ has also been asked to look into a range of other Chinese media.Ironically, the bipartisan request to force Al Jazeera to register comes amid a controversy over the network’s filming of a documentary critical of pro-Israel lobbying in the U.S. The network used an undercover operative to secure footage revealing possibly illegal interactions between advocacy groups and lawmakers.
The Foreign Agents Registration Act was never intended to regulate journalism. The legislation in fact includes finely-worded exemptions for approved journalists, scholars, artists, and the like, who are not required to announce themselves as “agents of a foreign principal” regardless of what they create. The law was created in 1938 in response to German propaganda, specifically Nazi officials and those they employed to make pacifist speeches in then-neutral America and to organize sympathetic German-Americans. By requiring those working for the Nazis to register, and report their finances and spending, U.S. counterespionage authorities could more easily keep track of their activities.
FARA law doesn’t even prohibit straight up propagandizing, though it seeks to limit the influence of foreign agents by labeling their work, apparently to help out Americans who otherwise would not be able to tell the difference on their own. The law specifically says “Disclosure of the required information facilitates evaluation by the government and the American people of the statements and activities of such persons in light of their function as foreign agents.” Indeed, the Atlantic Council claims these actions “do not suppress freedom of speech; instead, it serves the First Amendment by supplementing information available to the public.”
Here’s a use of FARA in line with the law’s original intent: the Abu Dhabi Tourism and Culture Authority, whose job is to lobby Americans on behalf of a foreign government, in this case, to take vacations in Abu Dhabi, is a FARA registrant. You know who is up to what when the Abu Dhabi Tourism and Culture Authority says they have decent beaches you should visit. Other typical registrants might include an American lawyer hired by Saudi Arabia to lobby Congress in favor of more arms sales. Being a foreign agent is happily legal and very popular with former Congresspeople and government bureaucrats; you just need to announce your employer.
But FARA can also serve a more nefarious purpose, as a Catch-22 prosecution (a “compliance statute”) for those the U.S. wants to declare as foreign agents but who resist; if the feds want to taint you as a foreign agent, you either agree and register, or face jail.That is what happened in the case of RT and Radio Sputnik. Following the 2016 election, frightened officials demanded the Russian news organizations register as propaganda agents. RT’s editor-in-chief maintained her network was an independent news outlet, but chose to comply rather than face criminal proceedings, adding “we congratulate the American freedom of speech and all those who still believe in it.” Critics then swung RT’s snarky comment on free speech into “proof” it unfairly criticizes America.
The use of FARA to allow the government to declare which foreign media outlets produce “news” and which produce “fake news” and propaganda is “a shift in how the law has been applied in recent decades,” said the Committee to Protect Journalists. “We’re uncomfortable with governments’ deciding what constitutes journalism or propaganda.”
As the Justice Department wields the FARA weapon against journalists, here’s what they will face.Designation under FARA requires a media outlet label its reporting “with a conspicuous statement that the information is disseminated by the agents on behalf of the foreign principal,” a nutritional label for journalism. It also means the outlet must open its finances to the Department of Justice. It means Americans who choose to watch that media, or participate in its talk shows, or who work legally for those outlets, open themselves to accusations of “treason” (one political staffer was fired after being interviewed by Radio Sputnik.) It adds credence to the muddy cries of “fake news” used to shut out dissenting opinions. It gives credibility to groups like PropOrNot, which lists websites it “determines” are Russian propaganda, and Hamilton 68, which does the same for Twitter.
Subjecting journalists to FARA sends a message about America. It encourages foreign governments to impose restrictions (Russia has already passed a law requiring outlets like CNN to register as foreign agents.) It uses the full authority of the American government to declare Al Jazeera, a network which reaches 310 million people in more than 160 countries, has no equal place within a free press because its broadcasts are “anti-American, anti-Semitic, and anti-Israel.” In the specific case of Al Jazeera, it seemingly extends America law to cover anti-Israeli propaganda as well. As with attempts to claim Wikileaks is espionage and not journalism, this use of FARA says the U.S. will use its laws to harass those with “un-American” opinions.
The use of FARA to restrict foreign journalists also adds to rising sense among too many already frightened Americans that our freedoms are being used against us. “The U.S. is at a huge strategic disadvantage when it comes to the New Media Wars because our information environment is so open and rich,” said one former CIA Deputy Director of Intelligence. Perhaps too many dissenting voices isn’t a good idea. The Internet is just too much freedom for the First Amendment to responsibly allow. Maybe the government should become more involved in what we say, hear, watch, and read, as Facebook and Twitter (who banned RT from advertising) do now, you know, for our own protection. Our open society is a vulnerability, not a strength.
The roots of our most basic rights flow from the freedom of the press written into the First Amendment. The press must be unfettered in reporting so citizens can make informed decisions when voting, protesting, and petitioning their government. Government should play no role in designating good journalists from bad, licensing who can report, or otherwise interfering with access to a broad range of ideas. Sorting out the marketplace of ideas — opposing opinions, bias exposed and hidden — is supposed to be our job as an informed citizenry anyway.
Copyright © 2019. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Movie Review: The Post, or, History as 2018 Wants It to Be
Steven Spielberg’s “The Post,” starring Meryl Streep and Tom Hanks, tells the story of the Washington Post’s decision in 1971 to publish parts of the Pentagon Papers, the government’s secret history of the Vietnam War. It’s a whimper of a movie, throwing bad history on the screen to make a clumsy but ever-so 2018 political point.
So how do you make a two hour drama out of a decision? There are only so many scenes you can shoot, though Spielberg tries them all, of The Suits saying “You can’t publish!” while Meryl and Tom emote “We must!” Well, you more or less override real history in favor of a Lesson, whitewash a decision made in part to make the Post look better against its competition of the time the Washington Star, and sideline the real hero, Daniel Ellsberg.
A bit of history. Ellsberg first leaked the Pentagon Papers exclusively to the New York Times; despite what “The Post” claims, the Washington newspapers were far too provincial to qualify as full peers. The Pentagon Papers were a 7,000 page classified history of the Vietnam War, 1945 to 1968, prepared under the order of Kennedy-Johnson Secretary of Defense Robert McNamara. We know now McNamara, while publicly supporting the war, was privately consumed by doubt, and the Papers were his act of contrition. Times’ reporters spent three months reading and verifying the documents. Simultaneously, the Times set its legal team to preparing the now classic First Amendment defense it knew would be needed.
The risks were huge — no one had ever published such classified documents before, and the senior staff at the Times feared they would go to jail under the Espionage Act (though only Ellsberg was actually charged as such.) The Nixon administration found a court to order the Times to cease publication after an initial flurry of excerpts were printed in June 1971, the first time in U.S. history a federal judge censored a newspaper. Things got so dicey the Times’ outside counsel actually quit the night before his first appearance in court, claiming the newspaper had indeed broken the law. It was only at that point the Washington Post actually obtained an excerpt from the Pentagon Papers.
The movie brushes past the Times’ rigorous fact checking, raw courage, and masterful First Amendment legal defense to focus on the Post’s big risk: the paper was about to offer its stock publicly, and problems with the government might hurt share prices. Nixon shut down the Post’s publishing anyway after only two days, and the paper went to court. The Post’s lawyers made no First Amendment case, more afraid of being found in contempt of the injunction against the Times than the Espionage Act. The Supreme Court rolled their briefs into the Times’ case, and the landmark victory for the First Amendment was issued as New York Times Company v. United States. The Times won the Pulitzer Prize. The Post did not.
But hell, you’re Steven Spielberg. You have the True Guardians of Liberal-Lite, Blue America’s mom and dad, Meryl Streep and Tom Hanks. What does history have to do with your movie anyway? It all begs the question of why Spielberg chose to tell the story of the Pentagon Papers, which is really the story of the New York Times with its spine still in place, via a secondary player, the Washington Post?
“The Post” has no real interest in the Pentagon Papers except as a plot device, almost an excuse needed to make this movie. “The Post” simply takes a now universally praised, and thus middle America safe (for the same reason, “Saving Private Ryan” was set in the Good War instead of god-awful Vietnam) episode of journalism as a launching point to attack what it sees as the Trump Administration’s efforts to weaken a free press. Today’s WaPo, under the ownership of one of America’s richest liberal capitalists, Amazon’s Jeff Bezos, has refashioned itself as the newspaper of #Resistance, declaring in undergraduate essay level pseudo Orwellian prose its motto to be “Democracy Dies in Darkness.”
By setting the story back in ye olde timey 1971, Spielberg can appropriate Daniel Ellsberg, instead of Obama-era whistleblowers Chelsea Manning and Edward Snowden, who still hover near to traitor status for many. Tom Hanks himself gave the game away, calling Ellsberg a hero in an interview while refusing to characterize Snowden at all.
What was clearly the right thing to do to help bring down (Trump stand-in) Richard Nixon can become all morally ambiguous when Obama is in the hot seat, hence the historical setting. The Obama administration charged more people under the Espionage Act for alleged mishandling of classified information than all past presidencies combined, including Nixon’s. But by more or less bypassing the core issue both whistleblowers and real journalists stare down — there are higher goals than obedience to government — Spielberg ducks the real lesson in favor of an easy shot at the current administration.
“I think our country has a love-hate relationship with whistleblowers,” attorney Jesselyn Radack, who helped represent Manning, Snowden and, full disclosure, me, told The American Conservative. “I wish I could be optimistic about ‘The Post’ shifting the needle of public opinion. However, it’s a hopelessly mismatched tug of war when the entire apparatus of the U.S. government — whether led by Obama or Trump — holds one end of the rope.”
Using the old Washington Post as the launching point for what is essentially just a trope-ish Op-Ed (Freedom of the Press, good! Republican Presidents, bad! Journos, Indiana Jones!) also allows Spielberg to show 1971 exactly as 2018 wants to remember it. Meryl and Tom, playing Katherine and Ben, are perfect role models for how men and women should work together, respectful and considerate, with no mansplaining or inappropriate remarks to be found.
Meanwhile, the newsroom is era-appropriate white and male, but everyone is on their best behavior for the camera; no fanny slapping, no one addressing the clerical staff as “honey” or demanding coffee. The New York Times of 1971 was too male, and even Spielberg couldn’t shoe horn a female protagonist into that picture, never mind create a hit-you-over-the-head subplot of Katherine Graham morphing from Betty Crocker into a fierce, persistent 2018 role model for all women and girls (one of the later shots in the film shows Streep leaving the Supreme Court to gently part a crowd of adoring young women, adream in halo-like glow at her proto-feminism). There is no subtlety to the message. Spielberg might as well have costumed Streep wearing a pink pussy hat in the boardroom scenes.
Nobody expects movies to be 100% historically accurate, but “The Post” twists facts to present a battle that really wasn’t fought this way at all. The film is an effective piece of polemic, taking full advantage of the skills of some of America’s most talented practitioners, who one imagines believe they made a Movie That Matters For Our Times. Spielberg, Streep, and Hanks, all supporters of Hillary Clinton, couldn’t get her elected, so they did the next best thing. They created a little confection likely to win multiple Oscars and play forever on Amazon Prime beating up the guy she lost to.
Full Disclosure: Dan Ellsberg is a hero of mine.
Copyright © 2019. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
The Media and the Myths of Trump
Donald Trump’s victory was so loathsome to journalists that instead of acknowledging their cultural and partisan blindness lead to them misreport the election, they doubled down, growing two overlapping myths to delegitimize the presidency they never wanted to happen.The two myths are Trump did not really win the election, and that once in office Trump is so unfit to serve that he is a danger to the nation and must be removed as a people’s act of literal self-defense. Psychiatrists call this denial; political scientists may call it a kill shot to democracy.
The myth Trump did not actually win exploded outward like the Big Bang from November 8, 2016. There were the Jill Stein recounts, and false claims of voter fraud, gerrymandering, and racist voter suppression that lead to an “unfair” win. This all morphed into what stands as one of the most ignorant themes ever expressed in American politics, that because Clinton “won” the popular vote she was somehow entitled to the Oval Office. Reporting on all this came close to claiming the Constitution itself conspired against Hillary. “We’re in uncharted waters,” proclaimed CNN’s Anderson Cooper; the network also featured an ex-CIA officer calling for a new election, what in CIA-speak is better known as an overthrow.
Instead of dismissing such unconsitutional nonsense, the media featured elaborate justifications, and coined the term “Hamilton Electors” to tie the quixotic effort to one of the few Founding Fathers voters knew via song. An online petition to declare Clinton president that in normal times would have been seen as a crank call was instead promoted into gaining the largest response in Change.org history. Editorials called for the Electoral College vote to be unconstitutionally postponed. Once-cogent pundits like Lawrence Tribe and Robert Reich were handed mainstream platforms to morph themselves into human cottage industries proclaiming the impeach-ability of various Tweets and statements.
Even today, the New York Times’ White House correspondent beats the fan fiction drum for the importance of the popular vote. Her paper continues to focus on the urgent need to do away with the Electoral College after 220 years, the system that put Obama and Clinton and Carter into office, before the next time Trump runs. In what under normal times would be dismissed as a conspiracy theory, Huffington Post features interviews saying the election may not be “legitimate,” over a year later.The efforts to somehow keep Trump from office continued right up to the swearing in ceremony, itself boycotted by Democrats who did not want to “normalize” the election.
It was at that point the second myth came to the fore: Trump was unfit to serve. The uber-disqualification is that Trump is literally a Russian agent (“Is Donald Trump Working for Russia?” asked New York magazine, in a headline that would have made reporters blush during the McCarthy Red Scares), directly under the control of the Kremlin, who holds power over him via some sort of pornographic pee tape no one has seen, or sweetheart real estate loans no one has seen, or in return for buying Trump the election demonstrated by evidence no one has seen.
Alongside the “Trump is a Russian agent” disqualifier are a handful of memes never before seen in American politics. Trump’s hotels make his presidency illegal under the Emoluments Clause, a Constitutional snippet that generally escaped notice for 220 years (that Obama might get a $60 million book advance to write about things he did in office but only paid out, alongside six figure speaking engagements, after he left office, or that foreign governments donated to the Clinton Foundation while Hillary was Secretary of State, are not discussed.) Trump’s tax returns, available to the IRS for decades, are a media strawman; only if the people of Twitter examine those old 1040s can democracy be saved, IRS auditors and their technical knowledge be damned. Maxine Waters, a Member of Congress, said Trump should be impeached because he is boorish and crude.
Waters’ statements and other similar, albeit slightly more coherent ones, are addendums to the myth, the idea that Trump is on borrowed time. The media fans the flames of Mueller, expecting the smoking gun that has so far eluded the CIA, NSA, FBI, IRS, and NYT to emerge any day. The 25th Amendment, created after the Kennedy assassination to codify the line of succession should the president become incapacitated, has been crowd-sourced into some sort of psychological failsafe mechanism whereby the Vice President, et al, will wake up one morning, realize the Washington Post has been right all along, and force Trump out of office.
Ensuring that Trump is to appear as unqualified, the media focuses on “evidence” of that. Looking at his trip to Asia, the main story out of the Japan leg was some silliness over Trump overfeeding fish, not what was discussed with the Japanese regarding North Korea. CBS News’ White House Correspondent purposefully pulled a quote about Japanese auto manufacturing out of context to make Trump appear uninformed, whereas the full statement paints the opposite picture. From China, the theme was Trump was “rolled,” cajoled into, well, something, via a VIP visit to the Forbidden City. The main point of the APEC meeting in the Philippines? A silly photo. His speech in Korea, focusing on the problems with the North, was largely reported based on a irrelevant cherry-picked sentence about a Trump golf course. Back at home, the New York Times headlined Trump taking an awkward drink of water.
Running alongside such spot reporting is a steady stream of anonymous source-based predictions war is imminent in Iran or North Korea, and that DeVos, Mueller, Sessions, Kushner, Tillerson, Mattis, and Kelly will be fired or resign. That such things haven’t happened in a year is irrelevant; the media says without evidence they still might. A silly Trump tweet criticizing a reporter becomes “evidence” the President has abandoned the First Amendment. Journalists, who as a group once took pride in their objectivity, now openly proclaim their “not Trump” political allegiance.
Routine tussles of government, the stuff of our system, are overstated to a rube-like public such that courts doing what they are supposed to do, ruling on the President’s immigration orders, are inflated into “constitutional crisis.” It’s not a crisis if the system functions as it was created to do.
Journalistic standards of evidence, typically requiring multiple sources and/or on-the-record witnesses, are replaced by the egregious use of anonymous sources that are little more than gossip from interns. Watch the mushroom-level growth of headlines with colons, such as Revealed:, Sources: or Reported: and passive constructions such as “I’m told…” that get around the fact that the story is not really based on facts.
Reporters compete with one another to show how aghast they are at the “latest.” Newsweek is gleeful at the possibility Trump won’t finish his term. CNN talks of deposing the president. Politico runs an innuendo-heavy but fact-free piece claiming the KGB, seeing into the future, compromised Trump in 1987.
The sum of such snarky, non-substantive reporting is clear: America is on the lip of chaos, Trump is not leading America, he is accomplishing nothing of substance, he is unfit.
But the most unprecedented element of myth is the steady stream of reporting the President of the United States is so mentally ill that his continued presence in the White House is a suicide plan for America. Never before have mainstream media so freely and casually declared the President to be medically, legally, insane, and all based on little but fear and a few Tweets. The media has normalized this into common knowledge; as an example, an article pitch I made to a global media outlet explaining why war was not imminent in Korea was rejected because I could not “prove” Trump was not insane (The American Conservative bravely published my story.)
The myth is buttressed by medically unethical remote diagnosis, such as that of Dr. John Gartner, former assistant professor of psychiatry at Johns Hopkins University Medical School. “I don’t think people have any idea how close we are the point of no return,” Gartner said. “I think that there is an 80% chance he’s going to push that nuclear button. Why? Number one, Trump is a malignant narcissist. As far as I know, I cannot recall a single malignant narcissist in history who did not start a major war.” Gartner concludes “the noose is tightening around their necks and unlike Richard Nixon, Trump and his cabal are not going to leave gracefully. Donald Trump is going to be really like Bonnie and Clyde; he’s going to shoot his way out.”
Though the nation’s nuclear command and control procedures have for better or worse been left relatively unchanged since the Truman administration, it is only now, under the guise that Trump is insane, that the media and some Members of Congress are promoting the idea that change is needed. Media outlets champion the idea the military could refuse to launch missiles, advocating insubordination, essentially a coup, as the best hope our nation will survive. Such paranoia exceeds the worst of Cold War fears.
Along the way the myths have created their own new normals; it is now perfectly acceptable to call out the President with schoolyard-taunts: Trump has small hands, a joke about Cheeto Jesus, the orange man-child, homophobic jokes about Putin and bromance, that sort of thing. Writers like Charles Blow in the New York Times build whole columns out of lists (“ignorant… churlish… tacky”) of personal insults.
For the first time in our nation’s history powerful mainstream forces are trying to change the results of an election. Shocked by Trump’s victory, many in the media wanted to stop him from entering the White House. Failing that, they delegitimize the president in the manufactured-from-thin-air belief that he is such a threat that it is necessary to destroy democracy in America to save it.
At some point Trump will leave office. CNN and others would be expected to return to their originally scheduled programming at that time. The problem is once you let the genie of trying to overturn an election loose, you won’t be able to stop it. It’s foolish to think this process won’t be used again in 2020, or 2024. The clumsiness of the Obama birth certificate conspiracy to delegitimize a president is nothing compared to the approach being tried with Trump. People are getting more skillful at the game, learning more about the tools available. A new political weapon has been unsheathed. America is playing with fire.
Copyright © 2019. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
The First (Terms of Service) Amendment
The First Amendment must catch up with the 21st century. What we say on Twitter and elsewhere online is too important to be governed by a Terms of Service agreement.
I recently wrote about how the Ohio State University is preventing white supremacist Richard Spencer from speaking on campus. Despite falling under the First Amendment, Ohio State is looking for a legal loophole to block speech it doesn’t agree with.
The semi-comforting news is that Ohio State’s face slap to the First Amendment is subject to legal challenge. Not so in the cyberspace-based public square of the 21st century. What should be the modern arena of diverse ideas is instead controlled by corporations and their self-written Terms of Service. Hiding behind the bushes of private ownership, the quasi-public forums on Twitter, Facebook, Google, and their predecessors and successors skirt the First Amendment to control what people say, read, and by extension, think. They are the censors the Founding Fathers feared. It is hard to imagine a more significant threat to the free exchange of ideas.
It is time to expand the First Amendment to quasi-public institutions.
The scope of the First Amendment has regularly expanded. In the earliest days of the Republic the Bill of Rights applied only to the federal, and not any state or local governments. It wasn’t until the post-Civil War incorporation doctrine, followed by court cases well into the 20th century, that those restraints on government applied equally to the states. In its own founding days Ohio State could have easily banned a speaker for his beliefs.
Actually, Ohio State might have been able to ban a speaker it found offensive until even more recently. It wasn’t until a 1995 case that the Supreme Court held a university’s choices on funding student publications fell under the First Amendment’s obligation not to discriminate against particular viewpoints. Other expansions of the First Amendment took place in the 1950s, when the Supreme Court extended protection to non-traditional “political” speech, including nudity and advertising.
The First Amendment grows with the times, and needs to do so again to take in what Justice Anthony Kennedy called the “vast democratic forums of the internet in general, and social media in particular.”
The problem is that those forums today enjoy the freedom to suppress what once were inalienable rights.
When you use various web sites, you agree to a dense set of conditions, Terms of Service, along with the understanding that Twitter (we’ll use them as shorthand for the range of sites and apps) can interpret things as they wish. So while the Supreme Court continues to hold the line against banning “hate speech,” Twitter is free to apply any standard wishes, along any political or ideological lines it wishes. Twitter may ban speech acting as an arm of the government, skirting the First Amendment because it can.
That appears to have been what happened with Twitter’s decision to ban advertising from Russian media outlets RT and Sputnik. Both have been accused via a hazy intelligence community assessment of influencing the 2016 presidential election. While the federal government is stuck with that creaky old First Amendment preventing it from chasing RT and Sputnik back to Moscow, Twitter can — literally with a Tweet — silence them. Twitter quickly followed the Russian action with a decision to ban whatever it thinks are “violent groups and hateful imagery and hate symbols.” In the same week Twitter suspended the account of conservative Roger Stone. No explanation was given, though the suspension appears to be related to Stone’s angry Tweets directed at CNN.
My own Twitter suspension occurred in the process of defending myself against several antifa people who conflated my defense of free speech in the broadest terms with what they believed was my personal support for nazi hatred. Their threats to “punch nazis” lead me to respond. My response was deemed by Twitter incitement to violence (though it would never meet the actual definition of that term the Supreme Court established) and I got the boot. When suspended, Twitter still allows you to read your timeline, so I could see attacks continue until the antifa people tired of it all. I could not block them or respond in any way. It felt a lot like five big guys holding me down while a bully whacked away.
Google has quietly implemented censorship in the most well-intentioned way possible: to stop child predators. The internet giant tweaked its English-language search results to block sites it believes link to child pornography. “We will soon roll out these changes in more than 150 languages, so the impact will be truly global,” the company claims.
While no one can argue against stopping child predators, those same tools can be used in other ways, known as the search engine manipulation effect. Generally, the higher an item appears on a list of search results, the more users will click on it. Research shows putting links for one candidate above another in a rigged search can increase the number of undecided voters who chose one candidate by 12% or more.
Burying a link can have a similar effect. Google highlighting an OpEd that argues one way to the query “What is Trump’s Russia policy?” while leaving an opposing opinion out of the search results is a critical free speech issue of our time. A current Google search for “greatest president of the 20th century,” for example, highlights a brisk historical debate over Ronald Reagan versus Franklin Roosevelt, and brings up over 300,000 sites. What if it yielded only one? America would never accept government issuing a list of approved books for dead tree libraries few use anymore, but blithely accepts the same from the most-used research tool in human history.
Technology has changed the nature of censorship so that free speech in 2017 is not as much about finding a place to speak, but about finding an audience. Censorship in the 21st century targets speakers (example: Twitter) and listeners (Google.) There will soon be no fear that anyone will lock up dissident thinkers in some old-timey prison to silence them; impose a new Terms of Service and they are effectively dead.
The arguments that Twitter and Google are private companies, that no one forces you to use their services, and in fact you are free to switch to MySpace and Bing, are tired attempts to justify end runs around the First Amendment. Platforms like Twitter are the public squares of the 21st century (seven of 10 American adults used a social media site in 2016), and should be governed by the same principles, or the First Amendment will become largely irrelevant.
Pretending a corporation with the global reach to influence elections is just another company is to pretend the role of unfettered debate in a free society is outdated. Absent a court decision that places quasi-public forums under the First Amendment, we face a future that will splinter debate and discussion into a myriad of ideological-based platforms such that no one will be listening to anyone they do not already support. It will be a future where Twitter and Ohio State protect students from the words of Richard Spencer at the expense of teaching them how to challenge those words.
Copyright © 2019. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Safety or Liberty? The Constitution Says We Can Have Both
Certain things used to be more, well, self-evident. A great many of us didn’t necessarily like, but understood, the First Amendment protected some speech we strongly disagreed with, or some speech that even made us afraid. We accepted there was an often uncomfortable duty to protect the right to speech irrespective of its content. We understood if we allowed government and institutions to block one person’s speech, even someone with terrible ideas, they could block others. Right up to when they came for us.
Then a collective mental breakdown took place in November 2016, and an almost organic sense that overnight America set itself on the path to fascism became the justification for the weakening of the First Amendment. Free speech is now seen by many as a liability, an enabling tool for anyone one might label a “nazi.” Some 69% of American college students believe hate speech (“Using language on campus that is intentionally offensive to certain groups”) should be banned by the government. It is an increasingly common point of view that taking away someone’s right to speak, a tool of fascism, somehow protects against the encroach of fascism.
And so welcome to The Ohio State University, which has refused to allow white supremacist Richard Spencer to speak on campus November 15.
The attorney representing Ohio State said Spencer would pose a “substantial risk to public safety, as well as material and substantial disruption to the work and discipline of the University.” Ohio State was no doubt also thinking of the $600,000 the University of Florida claimed it cost to provide security for Spencer’s recent appearance there. The Florida response included hundreds of police officers from five jurisdictions, as well as SWAT teams and snipers.
Both Ohio State and Penn State (also denying Spencer the chance to speak) are being sued for violating the First Amendment. Without explanation, nearby University of Cincinnati will allow Spencer to speak.
The law does not appear to be on Ohio State’s side. Blocking a speaker to protect public safety is an absolute last resort, and some risk to safety is part of the cost of the unfettered speech a democracy needs to thrive. Freedom, it seems, really is not free. The security costs are in fact to protect the First Amendment in broad practice, not simply one man in the specific.
The security problems Ohio State cites are not created by the speaker; they are created by the mob expected to oppose the speaker and on the assumption Spencer’s supporters will fight back. A historian lecturing across campus from Spencer on Babylonian art needs no police presence. Allowing the mob to have the final word on who speaks can in fact help create mobs where none otherwise exist. Placing a dollar test on free speech means it is only available to those who can afford it.
These questions are not new. Public safety has been long (mis)-used to silence. The town of Urbana, Illinois arrested someone burning an American flag (an act long-held to be a form of protected speech) claiming he was in danger from bystanders. Similar thinking has been used to deny permits for civil rights marches, with law enforcement saying they could not protect the protestors. Both sides in the abortion debate have used this argument as well outside clinics.
While institutions do have an obligation to public safety, that obligation must be balanced against the public’s greater right to engage with free speech. The answer is rarely to ban speech outright simply to maintain order. One landmark case from 2015 provides some of the clearest guidance yet:
“When a peaceful speaker, whose message is constitutionally protected, is confronted by a hostile crowd, the state may not silence the speaker as an expedient alternative to containing or snuffing out the lawless behavior of the rioting individuals. Nor can an officer sit idly on the sidelines — watching as the crowd imposes, through violence, a tyrannical majoritarian rule — only later to claim that the speaker’s removal was necessary for his or her own protection. Uncontrolled official suppression of the privilege [of free speech] cannot be made a substitute for the duty to maintain order in connection with the exercise of that right.”
The case involved a group called the Bible Believers who used crude langauge (“Turn or Burn”) at an LGBTQ gathering. The judges continued in their opinion allowing the Bible Believers to speak:
“We do not presume to dictate to law enforcement precisely how it should maintain the public order. But in this case, there were a number of easily identifiable measures that could have been taken short of removing the speaker: e.g., increasing police presence in the immediate vicinity, as was requested; erecting a barricade for free speech, as was requested; arresting or threatening to arrest more of the law breakers, as was also requested. We simply cannot accept Defendants’ position that they were compelled to abridge constitutional rights for the sake of public safety, when at the same time the lawless adolescents who caused the risk with their assaultive behavior were left unmolested.”
The belief law enforcement, or any institution, can turn first to shutting down speech that requires physical protection, has failed other courts’ tests in cases are diverse as Occupy and where a Christian group brought a pig’s head to a Muslim Arts festival.
I spent four years as an undergrad at Ohio State, and saw first-hand how the university can protect the free speech rights of a diverse group of speakers. A former member of the Black Panther party spoke in favor of racial violence. My time on campus was an era of fights for LGBTQ and other rights, and I saw massive police turnouts to protect gays marching across campus, and for a women’s “Take Back the Night” march through rough neighborhoods. Iranian students massed for anti-American demonstrations at a time when U.S. diplomats were being held hostage in Tehran. Meanwhile, Ohio State every other Saturday in the fall deploys a massive security presence for home football games, where the crowd rises above 100,000, multiples past who might show up to protest Spencer. Events likely to cause hardship to passersby are well-advertised, and students know to avoid them if they wish. Such events, past and current, clearly created the same “material and substantial disruption to the work and discipline of the University” that Ohio State fears Spencer will bring but were allowed anyway.
And Ohio State knows things worked out smoothly last fall, in fact just days before the election, when the school welcomed white supremacist Milo Yiannopoulos to campus.
Ohio State can do it, they just want to be able to pick and choose when they do it. And that is wrong.
An institution cannot cite avoiding public disruption as the initial or sole reason to restrict speech. The problems of having Richard Spencer, or anyone, speak on campus are outweighed by the obligation to protect free speech. Getting rid of the speaker is expedient but unconstitutional. Maintenance of the peace should not be achieved at the expense of the free speech. It’s pretty much self-evident.
Copyright © 2019. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
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