What the Pentagon Papers 50th Anniversary Means

June 26, 2021 // 5 Comments »

It was a humid June on the east coast 50 years ago when the New York Times began publishing the Pentagon Papers. The anniversary is worth marking, for reasons sweeping and grand, and for reasons deeply personal.

In 1971 Daniel Ellsberg leaked the Pentagon Papers, a secret U.S. government history of the Vietnam War, to the Times. No one had ever published such classified documents before, and reporters feared prosecution 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 had invoked prior restraint and shattered the 1A.

In a legal battle too important to have been written first as a novel, the NYT fought back. The Supreme Court on June 30, 1971 handed down a victory for the First Amendment in New York Times Company v. United States, and the Times won the Pulitzer Prize. The Papers helped convince Americans the Vietnam War was wrong, their government could not be trusted, and The People informed by a free press could still have a say in things. This 20 year anniversary rightfully marks all that.

Today, journalists expect a Pulitzer for a snarky tweet that mocks Trump. In our current shameful state where the MSM serves as an organ of the Deep State, the anniversary of the Papers also serves as a reminder to millennials OnlyFansing as journalists that there were once people in their jobs who valued truth and righteousness. Perhaps this may inspire some MSM propagandist to realize he might still run with lions instead of slinking home to feed his cats.

The 50th anniversary of the Papers is also a chance to remember how fragile the victory in 1971 was. The Supreme Court left the door open for prosecution of journalists who publish classified documents by focusing narrowly on prohibiting the government from prior restraint. Politics and public opinion, not law, have kept the feds exercising discretion in not prosecuting the press, a delicate dance around an 800-pound gorilla loose in the halls of democracy. The government, particularly under Obama, has meanwhile aggressively used the Espionage Act to prosecute whistleblowers who leak to those same journalists.

There is also a very personal side to this anniversary. When my book, We Meant Well, turned me into a State Department whistleblower and set off a wall of the bad brown falling on me, Pentagon Papers leaker Daniel Ellsberg sent me two of his books, unannounced, in the mail.

He wrote a personal message inside each one, explaining to me what I was doing was hard, scary, and above all, a duty. It changed me and my understanding of what was happening to me. I wasn’t arguing procedure with the State Department and grubbing for my pension, I was defending the First Amendment itself. I wrote Dan a thank you note. Here’s some of it.

Thank you for sending me copies of your books, and thank you even more for writing “with admiration for your truth telling” inside the cover flap of one. I am humbled, because I waited my whole life to realize today I had already met you.

In 1971 I was 10 years old, living in Ohio. The Vietnam War was a part of our town’s life, same as the Fruehauf tractor-trailer plant with its 100 percent union workforce, the A&P and the Pledge of Allegiance. Nobody in my house went to war, but neighbors had gold stars in their windows and I remember one teacher at school, the one with the longer hair and the mustache, talking about Vietnam.

It meant little to me, involved with oncoming puberty, but I remember my mom bringing home from the supermarket a newsprint quickie paperback edition of the Pentagon Papers. There of course was no Internet and you could not buy the Times where I lived. Mom knew of politics and Vietnam maybe even less than I did, but the Papers were all over the news and it seemed the thing to do to spend the $1.95. When I tried to make sense of the names and foreign places it made no impact on me.

I didn’t understand then what you had done. While I was trying to learn multiplication, you were making photocopies of classified documents. As you read them, you understood the government had knowledge early on the war could not be won, and that continuing would lead to many times more casualties than was ever admitted publicly.

A lot of people inside the government had read those same Papers and understood their content, but only you decided that instead of simply going along with the lies, or privately using your new knowledge to fuel self-eating cynicism, you would try to persuade U.S. Senators Fulbright and McGovern to release the papers on the Senate floor.

When they did not have the courage, even as they knew the lies continued to kill Americans they represented, you brought the Papers to the New York Times. The Times then echoed the courage of great journalists and published the Papers, fought off the Nixon administration by calling to the First Amendment, and brought the truth about lies to America. That’s when my mom bought a copy of the Papers at the A&P.

You were considered an enemy of the United States because when you encountered something inside of government so egregious, so fundamentally wrong, you risked your own fortune, freedom, and honor to make it public. You almost went to jail, fighting off charges under the same draconian Espionage Act the government still uses today to silence others who stand in your shadow.

In 2009 I volunteered to serve in Iraq for my employer of some 23 years, the Department of State. While I was there I saw such waste in our reconstruction program, such lies put out by two administrations about what we were (not) doing in Iraq, that it seemed to me that the only thing I could do — had to do — was tell people about what I saw. In my years of government service, I experienced my share of dissonance when it came to what was said in public and what the government did behind the public’s back. In most cases, the gap was filled only with scared little men and women, and what was left unsaid hid their flaws.

What I saw in Iraq was different. There, the space between what we were doing (the waste), and what we were saying (the chant of success) was filled with numb soldiers and devastated Iraqis, not nerveless bureaucrats. It wasn’t Vietnam in scale or impact, but it was again young Americans risking their lives, believing for something greater than themselves, when instead it was just another lie. Another war started and run on lies, while again our government worked to keep the truth from the people.

I am unsure what I accomplished with my own book, absent getting retired-by-force from the State Department for telling a truth that embarrassed them. So be it; most people at State will never understand the choice of conscience over career, the root of most of State’s problems.

But Dan, what you accomplished was this. When I faced a crisis of conscience, to tell what I knew because it needed to be told, coming to realize I was risking at the least my job if not jail, I remembered that newsprint copy of the Papers from 1971 which you risked the same and more to release. I took my decision in the face of the Obama administration having already charged more people under the Espionage Act for alleged mishandling of classified information than all past presidencies combined, but more importantly, I took my decision in the face of your example.

Later, whistleblowers like Chelsea Manning, Julian Assange, and Edward Snowden would do the same. I know you have encouraged them, too, through your example and with personal messages.

So thank you for the books you sent Dan. Thank you for your courage so that when I needed it, I had an example to assess myself against other than the limp men and women working now for a Department of State too scared of the truth to rise to claim even a whisper of the word courage for themselves.

Fast-forward to 2021. In these last few years the term “whistleblower” has been co-opted such that a Deep State operative was able to abuse the term to backdoor impeachment against a sitting president. The use of anonymous sources has devolved from brave individuals speaking out against a government gone wrong into a way for journalists to manufacture “proof” of anything they want, from claims the president was a Russian spy to the use of the military to create a photo op in Lafayette Park.

On this anniversary we look at individuals like Ellsberg and reporters like those at the Times and know it is possible for individuals with courage to make a difference. That is something worth remembering, and celebrating.

Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

Posted in Democracy, Post-Constitution America

CIA (Dis)Information Operations Come Home to the US

May 29, 2021 // 6 Comments »

Reporters joke the easiest job in Washington is CIA spokesman. You need only listen carefully to questions and say “No comment’ before heading to Happy Hour. The joke, however, is on us. The reporters pretend to see only one side of the CIA, the passive hiding of information about itself. They meanwhile choose to profit from the other side of the equation, active information operations designed to influence events in America. It is 2021 and the CIA is running an op against the American people.

Leon Panetta, the Director CIA from 2009 to 2011 explained bluntly his CIA did influence foreign media outlets ahead of elections in order to “change attitudes within the country.” The method, Panetta said, was to “acquire media within a country or within a region that could very well be used for being able to deliver a specific message or work to influence those that may own elements of the media to be able to cooperate, work with you in delivering that message.”

The CIA has been running such information ops to influence foreign elections since the end of WWII. Richard Bissell, who ran the agency’s operations during the Cold War, wrote of “exercising control over a newspaper or broadcasting station, or of securing the desired outcome in an election.” A report on the CIA in Chile boasts the Agency portrayed its favored candidate in one election as a “wise, sincere and high-minded statesman” while painting his leftist opponent as a “calculating schemer.” At one point in the 1980s foreign media insertions ran 80 a day.

The goal is to control information as a tool of influence. Sometimes the control is very direct, simply paying a reporter to run a story, or, as was done in Iraq, simply operating the media outlet yourself (known as the Orwellian Indigenous Media Project.) The problem is such direct action is easily exposed, destroying credibility.

A more effective strategy is to become a source for legitimate media such that your (dis)information inherits their credibility. The most effective is an operation so complex one CIA plant is the initial information source while a second CIA plant acts seemingly independently as a confirming source. At that point you can push information to the mainstream media, who can then “independently” confirm it, sometimes unknowingly, through your secondary agents. You can basically write tomorrow’s headlines.

Other techniques include exclusive true information mixed with disinformation to establish credibility, using official sources like Embassy spokesmen to appear to inadvertently confirm sub details, and covert funding of research and side gigs to promote academics and experts who discredit counter-narratives. The academics may never know where their money comes from, adding to their credibility.

From the end of WWII to the Church Committee in 1976, this was all just a conspiracy theory. Of course the US would not use the CIA to influence elections, especially in fellow democracies. Except it did. By its nature reporting on intelligence always requires one to work with limited information. Always give time a chance to explain.

Through Operation Mockingbird the CIA ran over 400 American journalists as direct assets. Almost none have ever discussed their work publically. CIA documents show journalists were engaged to perform tasks for the CIA with the consent of the managements of America’s leading news organizations. The New York Times alone willingly provided cover for about ten CIA officers over decades and kept quiet about it. Such long term relationships are a powerful tool, so feeding a true big story to a young reporter to get him promoted is part of the game. Don’t forget the anonymous source who drove the Watergate story was an FBI official who through his actions made the careers of  cub reporters Woodward and Bernstein. Bernstein went on to champion the Russiagate story. Woodward became a Washington hagiographer. Ken Dilanian, formerly with the Los Angeles Times, the Associated Press, and now working for NBC, maintains a “collaborative relationship” with the CIA.

That’s the tradecraft and the history. The problem for America is once again the tools of war abroad have come home. The intelligence community is currently operating against the American people using established media.

Some of it can’t be more obvious. The CIA always planted stories in foreign media for American outlets to pick up. The Agency works directly with Hollywood to control movies about itself. Turn on any of the advocacy media outlets and you see panels of former CIA officials. Journalist Matt Taibbi even created a list (and since ex-‘s need agency clearance to speak, all are of the officially approved class.) None is more egregious than John Brennan, former Director CIA, who for years touted Russiagate when he knew from information gathered while he was still in office it was all a lie.  The uber-lie that Trump was dirty with Russia was leaked to the press most likely by Brennan in January 2017 as the kick off event to the info op still running today.

Brennan’s role is more than speculation. John Durham, the US attorney leading the ongoing “how it happened” Russiagate investigation into the intelligence community, has requested Brennan’s emails and call logs from CIA. Durham is also examining whether Brennan changed his story between his public comments (not under oath, say anything) and his May 2017 testimony to Congress (under oath, watch out for perjury) about the dossier. Reporter Aaron Mate is less delicate, laying out the evidence Brennan was “a central architect and promoter of the conspiracy theory from its inception.” Even blunter is Senator Rand Paul, who directly accuses Brennan of trying “to bring down a sitting president.”

It was all based on nothing but disinformation and the American press swallowed every bit of it, turning the op into a three year tantrum falsely convincing a vast number of citizens their nation was run by a Russian asset. Robert Mueller, whose investigation was supposed to propel all this nothing into impeachment hearings, ended up exercising one of the last bits of political courage Americans will ever see in walking right to the edge of essentially a coup and refusing to step off into the abyss.

The CIA is a learning institution, and recovered well from Russiagate. Details can be investigated. That’s where the old story fell apart. The dossier wasn’t true. But the a-ha discovery was since you’ll never formally prosecute anyone, why bother with evidence. Just throw out accusations and let the media fill it all in for you. The new paradigm included let the nature of the source — the brave lads of the intelligence agencies — legitimize the accusations this time, not facts. Go overt and use the new, unexpected prestige of the CIA as progressive heros to substantiate things.

So in December 2017 CNN reported Donald Trump, Jr. had advance access to the WikiLeaks archive. Within an hour, NBC’s Ken Dilanian and CBS both claimed independent confirmation. It was a complete lie, based on fabricated documents. How do you confirm a lie? Ask another liar.

In February 2020, the Office of the Director of National Intelligence (ODNI) briefed the House Intelligence Committee the Russians were election meddling again to favor Trump. A few weeks earlier, the ODNI briefed Bernie Sanders the Russians were also meddling in the Democratic primaries in his favor. Both briefings were leaked, the former to the New York Times to smear Trump for replacing his DNI, the latter to the Washington Post ahead of the Nevada caucuses to damage Sanders.

In June 2020 The New York Times stated CIA officials concluded the Russians “secretly offered bounties to Taliban-linked militants for killing coalition forces in Afghanistan — including targeting American troops.”  The story ran near another claiming Trump had spoken disrespectfully about fallen soldiers. Neither story was true. But they broke around the same time Trump announced his plan to withdraw troops from Afghanistan, aimed at discouraging pro-military voters.

Earlier this month The Washington Post, citing anonymous sources, claimed the FBI gave a defensive briefing to Rudy Giuliani in 2019, before he traveled to Ukraine. Giuliani supposedly ignored the warning. The story was “independently confirmed” by both NBC and The New York Times. It was totally false.

The American system always envisioned an adversarial role for the media. One of the earliest challenges to freedom of the press was the Colonial-era Peter Zenger case, which established the right of the press to criticize politicians free from libel charges. At times when things really mattered and even as other journalists hid under their beds, men like Edward R. Murrow worked their craft to preserve democracy. Same for Walter Cronkite finally reaching his opposition to the Vietnam War, and the New York Times reporters weighing imprisonment to publish the Pentagon Papers.

In each of those instances the handful of reporters who risked everything to tell the truth were held up as heroes. Seeing the Times fighting for its life, the Washington Post co-published the Pentagon Papers to force the government to make its case not just against a rival newspaper, but the 1A itself.

Not today. Journalism is today devoted to eliminating practitioners unwilling to play the game. Few have been targeted more than Glenn Greenwald (with Matt Taibbi as runner up.) Greenwald exploded into a journalistic superhero for his reporting on Edward Snowden’s NSA archive, founding The Intercept to serve as a platform for that work (Greenwald’s downfall parallels Julian Assange, who went from liberal hero for exposing the foundational lies of the Iraq War to zero when his Wikileaks was demonized for supposedly helping Donald Trump.)

Greenwald’s criticism of the media for accepting Deep State lies as truth, particularly concerning Russiagate, turned him into a villian for progressives. MSNBC banned him, and other media outlets ran stories critical of him. Then something very, very odd happened to make it appear The Intercept outed one of its own whistleblower sources. Evidence suggests the source was a patsy, set up by the intel community, and exposed via Matt Cole, one of The Intercept journalists on this story. Cole was also involved in the outing of source CIA officer John Kiriakou in connection with torture claims. Either way new whistleblowers will think twice before turning to The Intercept. Greenwald recently quit the site after it refused to publish his article on Hunter Biden’s ties to China unless he deleted portions critical of Joe Biden.

Greenwald seems to have figured out the intel community’s game, writing “the most significant Trump-era alliance is between corporate outlets and security state agencies, whose evidence-free claims they unquestioningly disseminate… Every journalist, even the most honest and careful, will get things wrong sometimes, and trustworthy journalists issue prompt corrections when they do. That behavior should be trust-building. But when media outlets continue to use the same reckless and deceitful tactics — such as claiming to have ‘independently confirmed‘ one another’s false stories when they have merely served as stenographers for the same anonymous security state agents while ‘confirming’ nothing — that strongly suggests a complete indifference to the truth and, even more so, a willingness to serve as disinformation agents.”

Democracy has no meaning if people simply vote uninformed, as they are propagandized. It will be sport for future historians to mark the thing that most pushed America into decline. Seeing decades of success abroad in using info ops, the CIA and others turned those weapons inward. So seeing her Deep State meddle in presidential politics, simultaneously destroying (albeit mostly with their cooperation) the adversarial media, while crushing faith in both our leaders and in the process of electing them, will certainly be a top qualifier.

Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

Posted in Democracy, Post-Constitution America

COVID Runs the 9/11 Playbook (Against You)(Again)

April 10, 2021 // 1 Comment »

After fanning COVID panic for a year, Democratic newsletter Salon admits it was all for partisan purposes: “Americans have been sucked into an all-or-nothing approach, with your choice of all or nothing depending largely on your partisan identity.”

Salon continues “Trump’s rejection of sensible precautions caused many of his political opponents to run hard in the opposite direction, embracing the lockdowns as if they were a point of personal virtue and inherent good, instead of a temporary and deeply unpleasant measure necessary to contain the virus. Worse, liberals were so protective of lockdowns that even sensible criticisms were ignored, and liberals often acted like, well, cops. They often appeared more interested in lecturing people rather than empowering them through education. There was a lot of social media shaming for any social activity, no matter how safe it was. And in behaving this way, a lot of well-intentioned people made the pandemic much worse.”

The Hill came to the same conclusion, confessing recently “Lockdowns don’t work: Remember 15 days to slow the spread? Well, since those fateful words were uttered, we have had a year of various efforts to slow down a virus that has an infection fatality rate of less than one percent. And what we have learned is that viruses are gonna virus. California, the United Kingdom, Florida and Sweden show the futility of lockdowns.” The Hill adds “The media is complicit in furthering the Panic… how you could die tomorrow, from a virus that kills virtually nobody healthy under the age of 70.”

A study found no correlation between NYC subway ridership and COVID spikes. In other words, few people got sick riding in a poorly-ventilated metal tube with strangers, masked and unmasked, an admission that many of the so-called lifesaving precautions were mostly health theatre, rituals based on fear. It was easier to order people to stay home than to see if the woods really had bears in them.

NY Magazine, after a year of scare stories about scary COVID variants taking over the world, now is running articles headlined “Maybe the Variants Aren’t So Scary After All.”

The Atlantic wrote a year into the pandemic “Traditional and social media have been caught up in a cycle of shaming—made worse by being so unscientific and misguided.” They point out the nonsense of the response: “Cities closed parks even as they kept open indoor dining and gyms. Berkeley and the University of Massachusetts banned students from taking even solitary walks… pictures of people outdoors without masks draw reprimands, insults, and confident predictions of super-spreading—and yet few note when super-spreading fails to follow.”

All but the most serf-like now know the response was partisan, on purpose. We know lockdowns have little effect on transmission even as they devaste people economically and psychologically. The response by government, unscientific and misguided, was encouraged by a media that correlated suffering with virtue, and pain with progress. The draconian measures taken were somewhere between merely ineffective and worse than the disease. If only somehow we could have known this a year ago and used it as a guide toward more prudent, focused, and balanced responses.

If only we’d been able to see the disease wasn’t the hoax, the response was.

As America reprogrammed into one big Crisis News Network, with every story reported with a flashlight held under the announcer’s chin, I first wrote on March 5, 2020 how COVID fear was being used to manipulate people. I said the reaction to the virus will result in long term damage to the nation well beyond the health effects of the virus. I wrote on March 10, 2020 how many of the same COVID-era tricks to create fear to drive policy were used when AIDS broke into the mainstream. On March 26, 2020 I explained how the same playbook (terrify the American people for partisan goals) was run on us after 9/11. I wrote a second article on how the “cure” of lockdown was going to be worse than the disease on March 31.

I’m not bragging. The information was as obvious as you wanted it to be. For example, in October 2020 a group of infectious disease epidemiologists wrote the Great Barrington Declaration, laying out”grave concerns about the damaging physical and mental health impacts of prevailing COVID policies” such as sweeping lockdowns. They were largely ignored, though US News found time to call them arrogant and recklessness in calling for “focused protection.” The nation was as intolerant of COVID dissent as it was of anti-war dissent in 2001.

Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

Posted in Democracy, Post-Constitution America

I Violated “Community Standards”!

March 21, 2021 // 5 Comments »

Just as a marker on the road to the complete loss of freedom of speech as well as losing my mind, here is my full post Facebook deleted.

Their anonymous censors stated the post below violates “community standards” and because of that I was forbidden from posting or commenting for 24 hours.

Since anyone reading this is part of my “community,” I leave it here for you to judge.

Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

Posted in Democracy, Post-Constitution America

Jeffersonian or Springsteenian Democracy?

February 23, 2021 // 2 Comments »

That Super Bowl commercial could have been so much worse. 

“This is Bruce ‘Born to Run’ Springsteen, and when I’m driving down Thunder Road in my Pink Cadillac listening to some Radio Nowhere looking for a Red Headed Woman, I know these aren’t my Glory Days any more. So it ain’t no sin to be glad for Cialis. Come on up for The Rising!”

Or imagine Springsteen promoting a reverse mortgage, or some prescription drug with an X and Z in its name, ending with Bruce saying “Check with your doctor, and tell ’em the Boss sent ya.”

I can forgive Bruce for recycling footage and the same damn clothes from his Western Stars movie in that Super Bowl commercial. I’ll give him a pass for the faux accent which no one in New Jersey, or maybe anywhere in earth orbit, actually sounds like. I’ll even forgive his semi-annoyed tone (“I’ve told you people all this before but I guess I gotta go over it one more time.”) And no worries about whether Bruce sold out or not. Of course he did. He has always been clear (see his autobiography and Broadway show) that he is mostly an actor playing a character called “Bruce Springsteen.”

What I can’t overlook is Bruce is just wrong. The answer does not lie in Americans reaching the middle, as Bruce sternly instructs in his infomercial, but respecting the end points on either side as valid positions.

Let’s start with the Boss himself. Despite all the guff shoveled around the media about Bruce avoiding politics for so long, that has never been the case. Very early in his career Springsteen appeared at the No Nukes concerts. Not the “let’s have some nuclear power plants but not too many” concert. His opposition to the Vietnam War grew to opposing America’s jingoistic wars broadly. His stance on economic inequality is the cornerstone of his songbook — think Nebraska and Ghosts of Tom Joad. He supported BLM before it had its own initials; remember American Skin (41 Shots) from 2001?

Bruce has also always been about partisan politics, scolding the Reagan administration throughout the entire Born in the USA album, and actively campaigning for four Democratic presidential candidates. He even joked-not joked about moving to Australia if Trump was re-elected.

A guy who calls himself The Boss has never been about seeking the middle, as he says is our goal in his commercial. He has always taken positions, proudly and clearly. And that is more than OK, it is what America should be about.

The Founders made clearer than a ringing Clarence Clemons sax solo vigorous debate was critical to their vision of a democracy. They baked that into the Constitution via the First Amendment, ensuring free speech and the right to assemble. And no middle ground there — it says “Congress shall make no law…” and with narrow exceptions the Supreme Court has kept it that way for a couple of hundred years.

The Founders had no problem with compromise when that seemed the best they could do; in the extreme they even bargained enslaved human beings into being counted as only 3/5 of a white man. But the thrust was never toward a goal of 50-50, a simplistic Springsteenian middle ground instead of the balanced Jeffersonian one. The founding documents gave equal powers to very unequal states. The whole sloppy mess of democracy is full of 2/3 of this and majority that.

There would come very different ideas on once established things like whether women could vote. But after a robust process women got the vote, an extreme position. There was no meeting in the middle, say granting women a partial vote, or only letting them vote in national elections. The key is the mass of Americans accepted the result, and the ladies getting the vote seems to have worked out for us all.

When we try to meet in the middle we usually end up with most people unhappy. In Roe v. Wade the Supreme Court tried to hit some theorectical middle in granting nearly unfettered abortion rights in the first trimester, giving the states more decision making for the second, and leaving third trimester abortions as the very difficult decision they are. The results were that from the instant the opinion was issued one side demanded even freer access to abortion while the other tried to make access difficult at every step. Roe is settled law but not a settled issue.

Contrast that with the decision by the Court to allow same-sex marriage. One side of that debate just plain lost, and the country moved on to the sideshow of arguing about baking cakes for the receptions. Meh.

What is missing today in the majority of our Red-Blue is neither side understands the process. The goal is no longer to debate and resolve and move on. Today there is little respect for the other side and no empathy, just contempt and disgust. Their opinion is not only wrong, it is insane, dangerous, bonkers, a literal threat to our survival as a nation. How many times did we hear about the end of the rule of law, the end of democracy, fascism via racism, and that the Reichstag was burning during the Trump years?

More than anyone’s ideas being wrong, we see him or her as a horrible person just for holding those ideas. The goal today is not to beat the other idea on the playing field. It is to cancel the speaker, deplatform him, hunt him down, demonize him, make it so he can’t find a job, burn his books, smite him with Terms of Service, eliminate his ideas if not the speaker himself. Or maybe impeach him as a private citizen, strip away his right to run for future office, force him out of his own house in Mar-a-Lago, and I don’t know, hear the lamentations of his women. The middle ground is a killing field.

We end up believing that accepting the results of an election is optional if our candidate loses. We take “credible accusation” as a new standard, but only of course when it produces our desired results. Doxxing someone online or assaulting them in a restaurant is justified if he commits thoughtcrime. It has gotten to the point where even journalists have joined the scolds and censors to crusade against the First Amendment today to silence an opposing view without a thought to what will happen tomorrow to their own ideas when the wind shifts.

So Bruce, would you take another crack at this commercial? You can keep the same B-roll images, even that kinda silly cowboy cosplay outfit (would a 20-year-old you have worn that into a seaside Jersey bar?) but let’s rewrite the script:

“We demand diversity now in everything but thought and don’t see the irony. We’re in danger of losing what we strived and fought for, respect for different opinions. Don’t work toward the middle. Who has risked everything for a half-baked compromise? Anyone ever washed a rental car? No, you think hard, and you stake out a position, knowing the other guy is doing the same. Then you talk it out, you argue, you stomp your feet, write Op-Eds, and organize protests. You don’t repress speech you disagree with, you listen to it, then counter its ideas with better ones.

“Then you turn it over to the wise tools the Founders granted us. They differ from issue to issue. So an election, or a Senate vote, or a court decision. And then you accept that outcome with neither celebration nor triumph and you respect those whose ideas didn’t make it. That’s our common ground.

“It’s not about trying to all think the same way. It is about grasping for a higher rung because we don’t. We all live in one country and we all in the end want a life where we can care for family, do honest work, and join in this prayer for our freedom. The messy, awkward, slow way forward is well-marked for us.

“Also, please buy this Jeep. Patty’s on me to put in a new pool at home before spring.”

Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

Posted in Democracy, Post-Constitution America

Incitement is the New Terrorism

February 15, 2021 // 2 Comments »

You can only make up your own definition of “incitement” in the movies and at presidential impeachment trials. Otherwise the actual law is going to have to do.

The picture is becoming clearer now: 1/6 will be sold to frightened Americans as a new 9/11, the prime mover for a whole new range of “crimes.” Incitement will become this generation’s version of “material support to terrorism,” meaning the complex legal definition will be massaged in the name of safety so that it will become a not-real crime based on the flexibility of a word that will mean whatever the Dems/MSM/FBI want it to mean in a particular scenario.

So the kid in his bedroom chatting online will be talking to a Fed pretending to be a white supremacist instead of pretending to be ISIS. The kid’s arrest for incitement (those social media messages supposedly about white supremacy) will be played across the news and, like post-9/11, add fuel to the fires calling for more censorship, more surveillance, more arrests. It is literally the exact playbook from 2001.

Only better. The upgrade to the old playbook is that incitement scales well. So instead of just being pointed at naive kids online, it can be a death ray aimed at a conservative writer, a Congressperson, anyone with a platform. It is a way to eliminate an opinion, take out a rival, even impeach a president. That is why incitement is not aimed at stopping violence but alongside big tech censorship, a tool aimed at thought, at unpopular ideologies, a tool to crush free speech. All in the name of preserving democracy.

Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

Posted in Democracy, Post-Constitution America

Social Media’s Threat to Free Speech is Real

January 30, 2021 // 2 Comments »

The interplay between the First Amendment and corporations like Twitter, Google, Amazon, Apple and Facebook is the most significant challenge to free speech in our lifetimes. Pretending a corporation with the reach to influence elections is just another place that sells stuff is to pretend the role of debate in a free society is outdated.

From the day the Founders wrote the 1A until very recently no entity existed that could censor at scale other than the government. It was difficult for one company, never mind one man, to silence an idea or promote a false story in America, never mind the entire world. That was the stuff of Bond villains.

The arrival of global technology controlled by mega-corporations like Twitter brought first the ability the control speech and soon after the willingness. The rules are their rules, so we see the permanent banning of a president for whom some 70 million Americans voted from tweeting to his 88 million followers (ironically the courts earlier claimed it was unconstitutional for the president to block those who wanted to follow him.) Meanwhile the same censors allowed the Iranian and Chinese governments (along with the president’s critics) to speak freely. For these companies violence in one form is a threat to democracy while similar violence is valorized under a different color flag.

The year 2020 also saw the arrival of a new tactic by global media, sending a story down the memory hole to influence an election. The contents of Hunter Biden’s laptop, which strongly suggest illegal behavior on his part and unethical behavior by his father the president, were purposefully and effectively kept from the majority of voters. It was no longer for a voter to agree or disagree, it was now know and judge yourself or remain ignorant and just vote anyway.

Try an experiment. Google “Peter Van Buren” with the quotes. Most of you will see on the first page of results articles I wrote four years ago for outlets like The Nation and Salon. Almost none of you will see the scores of columns I wrote for The American Conservative over the past four years. Google buries them.

The ability of a handful of people nobody voted for to control the mass of public discourse has never been clearer. It represents a stunning centralization of power. It is this power which negates the argument of “why not start your own web forum.” Someone did until Amazon withdrew its server support, and Apple and Google banned the Parler app.

The same thing happened to The Daily Stormer, driven offline through a coordinated effort by tech companies, and 8Chan, deplatformed by Cloudflare. Amazon partner GoDaddy deplatformed the world’s largest gun forum AR15. Tech giants have also killed off local newspapers and other forums by gobbling up ad revenues. The companies are not, in @jack’s words, “one small part of the larger public conversation.”

The tech companies’ logic in destroying Parler was particularly evil – either start censoring like we do (“moderation”) or we shut you down. Parler allowing ideas and people banned by the others is what brought its demise. Amazon, et al, brought their power to censor to another company. The tech companies also said while Section 230 says we are not publishers, we just provide the platform, if Parler did not exercise editorial control to tech’s satisfaction it was finished. Even if Parler comes back online it will live only at the pleasure of the powerful.

Since democracy was created it has required a public forum, from the Acropolis to the town square on down. That place exists today, for better or worse, across global media. It is this seriousness of the threat to free speech that requires us to move beyond platitudes like “it’s not a violation of free speech, just a breach of the terms of service!” People once said “I’d like to help you vote ladies, but the Constitution specifically refers to men, my hands are tied.” That’s the side of history some are standing on.

This new reality must be the starting point, not the end point of discussions on the First Amendment and global media. Facebook, et al, have evolved into something new which can reach beyond their own corporate borders, beyond the idea of a company that just sells soap or cereal. Never mind being beyond the vision of the Founders when they wrote the 1A, it is hard to imagine Thomas Jefferson endorsing having a college dropout determine what the president can say to millions of Americans. The magic game play of words – it’s a company so it does not matter – is no longer enough to save us from drowning.

Tech companies currently work in casual consultation with one another, taking turns being the first to ban something so the others can follow. The next step is when a decision by one company ripples instantly across to the others, and then down to their contractors and supplies as a requirement to continue business. The decision by AirBnB to ban users for their political stance could cross platforms automatically so that same person could not fly, use a credit card, etc., essentially a non-person unable to participate in society beyond taking a walk. And why not fully automate the task, destroying people who use a certain hashtag, or like an offending tweet? Perhaps create a youth organization called Twitter Jugend to watch over media 24/7 and report dangerous ideas? A nation of high school hall monitors.

Consider linkages to the surveillance technology we idolize when it helps arrest the “right” people. So with the Capitol riots we fetishize how cell phone data was used to place people on site, coupled with facial recognition run against images pulled off social media. Throw in the calls from the media for people to turn in friends and neighbors to the FBI, alongside amateur efforts across Twitter and even Bumble to “out” participants. The goal was to jail people if possible, but most loyalists seemed equally satisfied if they could cause someone to lose their job. Tech is blithely providing these tools to users it approves of, knowing full well how they will be used. Orwellian? Orwell was an amateur.

There are legal arguments to extend limited 1A protections to social media. Section 230 could be amended. However, given Democrats benefit disproportionately from corporate censorship and current Democratic control of the government, no legislative solution appears likely. Those people care far more for the rights of some of its citizens (trans people seem popular now, it used to be disabled folks) then the most basic right for all the people.

They rely on the fact it is professional suicide today to defend all speech on principle. It is easy in divided America to claim the struggle against fascism (racism, misogyny, white supremacy, whatever) overrules the old norms. And they think they can control the beast.

But imagine someone’s views, which today match @jack and Zuck’s, change. Imagine Zuck finds religion and uses all of his resources to ban legal abortion. Consider a change of technology which allows a different company, run by someone who thinks like the MyPillow Guy, replacing Google in dictating what you can read. As one former ACLU director explained “Speech restrictions are like poison gas. They seem like they’re a great weapon when you’ve got your target in sight. But then the wind shifts.”

The election of 2020, when they hid the story of Hunter Biden’s laptop from voters, and the election’s aftermath, when they banned the president and other conservative voices, was the coming-of-age moment, the proof of concept for media giants that they could operate behind the illusion of democracy.

Hope rests with the Supreme Court expanding the First Amendment to social media, as it did when it grew the 1A to cover all levels of government, down to the hometown mayor, even though the Constitution specifically only mentions Congress. The Court has long acknowledged the flexibility of the 1A in general, expanding it over the years to acts of “speech” as disparate as nudity and advertising. But don’t expect much change any time soon. Landmark decisions on speech, like those on other civil rights, tend to be more evolutionary in line with society’s changes than revolutionary.

It is sad that many of the same people who quoted that “First they came for…” poem over Trump’s Muslim Ban are now gleefully supporting social media’s censorship of conservative voices. The funny part is both Trump and Twitter claim what they did was for peoples safety. One day people will wake up and realize it doesn’t matter who is doing the censoring, the government or Amazon. It’s all just censoring.

What a sad little argument “But you violated the terms of service nyah nyah!” is going to be then.

Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

Posted in Democracy, Post-Constitution America

Bad Arguments the Left is Using to Destroy Conservative Speech

January 14, 2021 // 1 Comment »

 
Some Bad Arguments the Left is Using to Destroy Conservative Speech

The graced haiku of the First Amendment was defeated in this current age not by jack booted thugs but by Terms of Service.

It wasn’t supposed to be this way. From 1984 through every dystopian movie, as well as the sordid history of real dictatorships past, the loss of free speech was supposed to come from the top down. A powerful man crushes the press, brown shirts take over TV stations, that sort of thing. Nobody foresaw the loss of free speech in a once great democracy would come – by popular demand – from many of The People themselves.

But that is what is happening in these extraordinary times here in Post-Constitutional America. Before this, the other great losses of rights once confirmed in blood followed dark tradition: after killing four Americans by drone, Barack Obama’s attorney general claimed the president’s personal deliberation constituted enough due process to satisfy the Fifth Amendment. Exaggerated fear of terrorists saw the Fourth Amendment rights to privacy obliterated by the NSA and welcomed by the frightened masses.

What Americans once saw as our highest values became luxuries that in a time of fear, first 9/11, then Trump, the country believed it could ill afford. Justice, fairness, and free speech became a risk, their indulgence a weakness.

Among the rights lost, free speech is arguably the most dear. Without free speech people stop thinking, losing all but a narrowing band of ideas. Open discussion, debate, and argument are the core of democracy, good ideas defeating bad ones in the marketplace of the mind. Fascism seeks to close off all ideas except its own, falsely labeling dissent as disloyal, insubordinate, seditious, insurrectionist, and ultimately unlawful.

Any discussion of free speech must acknowledge despicable people and their ideas have always existed. These people will use any freedom they have to promote the worst of ideas. Yet it is equally important to remind how at different times in our history speaking out against slavery, against war, against or for one politician or another, have all been seen as despicable. Restrictions on free speech have been used to ban great literature, books about women’s reproductive health, and photos once deemed “pornographic” now displayed as art. Someone will always find an idea or word offensive. Allowing that person to judge for all of us has never proven to be on the right side of history. The times when America stepped back from free speech – the WWI era Sedition Act, the McCarthy Years – are not the years we are proud of.

Trumpism, neo-Nazis, alt-right, white supremacists, QAnon, Pepe, and the racists is sadly nothing new. Indeed many of those groups in different forms have been around for decades. What is new is Leftists are aggressively embracing many of the same tools once used to try and stop the anti-war movement, feminists, and other progressive groups in the past. Those tools which directly offend the Bill of Rights include violence, suppression, censorship, and twisty quasi-legal reasoning about incitement and sedition. In addition are the tools of the bully, including misuse of the No Fly List to ban pro-Trump travelers for their political beliefs, “canceling” by mustered mobs, and blacklists to bar people from earning a living due to their politics.

But something else new turns up the dial: technology, coupled with the metastisization of new global media unabashedly willing to take advantage of not being under the control of the 1A. Combine that technological reach with liberal autocratic zeal all hidden behind the justification that Because Trump, Nazis, white supremacists, etc. the ends justifies the means and you have trouble. The justification is Everything Is Different and the old rules don’t apply. The democratic ideal of free speech is now a threat to democracy.

The literal first shot was fired, er, thrown, at the Trump inaugural. Richard Spencer was explaining live on camera the meaning of Pepe the Frog, a silly cartoon figure somehow adopted as a mascot by the movement Spencer promoted. An anonymous black-clad antifa protester ran into the scene and sucker punched Spencer. His free speech was ended by that act of violence.

There followed tens of thousands of comments on the YouTube videos of the attack. The standard response was “I don’t condone violence but…” and then go on to condone violence if it was directed against “Nazis.” It only got worse. In 2021 the Leftists of social media cheered the shooting death of unarmed Trump supporter Ashli Babbitt at the hands of the Capitol Police. “She earned that bullet…” read one typical remark. “Don’t forget that she was participating in a domestic terrorist attack!”

Another popular sentiment which echoed from 2017 into 2021 is to claim violence is justified as a leftist response to hateful speech by the right, and that if perhaps more people had punched Hitler in the early days the world would be a better place. More than a few people also suggest punching someone in the head is in fact a form of protected free speech itself, and others seem to think whatever they label as “hate speech” is a crime. Others used phrases along the lines of “the end justifies the means” and “by any means necessary.” It was if half the nation had simultaneously flunked AP Government.

Following the Spencer attack, similar violence landed at Middlebury College, then at a rally where one protester who displayed a Confederate flag was attacked, and at the University of California Berkeley (the university was ironically home to the Vietnam War protest-era Free Speech Movement.) Institutions, including Berkeley, Ohio State, Penn State, and New York University, canceled, postponed, or scheduled into dead zones speeches by conservative speakers, citing public safety concerns.

The undergirding philosophy was in place. The stage was set for a series of arguments to sate the desire to restrict speech. Let’s look at some, and why they do or not hold up.

The First Amendment Only Applies to Government

The First Amendment only applies to government, and so corporations are free to censor, restrict or shut down speech altogether.

Short Answer: True. The interplay between the 1A and corporations like Facebook is the most significant challenge to free speech in our lifetimes. It can only be resolved by a landmark Supreme Court challenge.

Until very recently no entity existed that could censor at scale other than the government. The arrival of global technology controlled by mega-corporations like Twitter, Facebook, Google, and Amazon brought first the ability the control speech and soon after the willingness to do so. The rules are their rules, so we see the permanently banning the president of the United States from tweeting to his 88 million followers while allowing the Iranian and Chinese governments to speak freely to those same people. At the same time Trump was suspended from social media for inciting violence Twitter allowed the hashtag #HangMikePence to trend. Violence in one location is a threat to democracy while similar violence is valorized if under a BLM flag.

The ability of a handful of people nobody voted for to control the mass of public discourse has never been more clear. It represents a stunning centralization of power. It is this power which negates the argument of “why not start your own web forum.” Someone did – Parler – until Amazon withdrew its server support, and Apple and Google banned the app, and silenced them. The same thing happened to The Daily Stormer, driven offline through a coordinated effort by multiple tech companies, and 8Chan, deplatformed by Cloudflare (Parler is suing Amazon under antitrust laws to regain its platform, and may seek a new provider in the interim.)

Try an experiment. Google “Peter Van Buren” with the quotes. Most of you will see on the first page of results articles I wrote four years ago for Leftist outlets like The Nation and Salon. Almost none of you will see the scores of weekly columns I wrote for The American Conservative over the past four years. Google buries them, like they never even happened. Try the same on the tiny DuckDuckGo search engine and the conservative articles appear.

Currently safe from the 1A as private companies, and with the legal shield of Section 230 of the Communications Decency Act, there is nothing to stop Twitter and the others even as new technologies create new opportunities to control speech. The election of 2020, when they hid the story of Hunter Biden’s laptop from voters, and the election’s aftermath, when they banned the president and other conservative voices, was their coming-of-age moment, the proof of concept for media giants. Many on the Left cheered the companies’ actions. No surprise. Presciently, Senator Chris Murphy, seeing the power available, had earlier demanded social media censor even more aggressively for the “survival of our democracy.”

While there are few things to currently prevent corporate censorship, whether for their own purposes or as a proxy for the Democratic Party as Murphy demands, there are some counter-veiling legal currents which recognize the need to extend the 1A.

One victory confirmed the status of social media, when the Supreme Court struck down a law prohibiting sex offenders from using Facebook. Justice Kennedy wrote in Packingham v North Carolina social media is now part of “the modern public square” so denying access violated the First Amendment. The Court concluded in a separate case “public access cable TV channels constituted a public forum, notwithstanding that they were operated by a private company.” Recognizing new media, even if administered by private companies, as the modern equivalent of the public square is an important step.

The next step is recognizing the civic responsibility of those providing public forums as part of the process of chipping away at the public-private divide shielding the big media companies.

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.” By inviting the public to Facebook for comment, the government transforms a private place into a limited public forum which should be 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.

In other words, by providing a public forum Facebook, et al, assume a new role. It seems reasonable that some protections for the public speech there be offered. They may not apply to Aunt Lisa’s cat pictures but should apply to her posting in favor of some local legislation on the ballot.

Bottom Line: Pretending a corporation with the reach to influence elections through the forum it provides is just another company that sells stuff is to pretend the role of unfettered debate in a free society is outdated. There are legal arguments to extend limited 1A protections to social media. Section 230 could be amended. However, given Democrats disproportionately benefit from corporate censorship and current Democratic control of the government, no legislative solution appears likely.

Hope rests instead with the Supreme Court expanding the 1A to social media, as it did when it grew the 1A to cover all levels of government, down to the hometown mayor, even though the Constitution specifically only mentions Congress. The Court has long acknowledged the flexibility of the 1A in general, expanding it over the years to acts of “speech” as disparate as nudity and advertising. But don’t expect much change any time soon. Landmark decisions on speech, like those on other civil rights, tend to be more evolutionary than revolutionary.

Free Speech May Provoke Violence (A Clear and Present Danger)

Some claim conservative speakers who use anti-LGBT or racist slurs to fire up their audiences can be banned or shut down. They say such speech is the equivalent of yelling Fire! in a crowded movie theater.

Short Answer: The standards for shutting down speech are purposefully restrictive, and well-codified. Most pundits and politicians come nowhere close. This excuse is over-used.

The Fire! line from Supreme Court decision Schenck v. United States is often cited as justification for limiting free speech. Here’s what Justice Oliver Wendell Holmes wrote:

“The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic. The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger.”

The full decision says the First Amendment doesn’t protect speech that meets three conditions: 1) the speech must be demonstrably false; 2) it must be likely to cause real harm, not just offense or hurt feelings, and 3) must do so immediately. Words in these decisions have hyper-specific legal meanings, often defined through multiple cases, which is why simply Googling a term and passing judgment on its vernacular via Twitter usually is wrong.

This interpretation of the First Amendment imposed restrictions on speech. But Schenck was what jurists call bad law, in that it sought to use the Espionage Act against a Socialist pamphleteer opposing WWI to stop free speech, not protect it. The case was eventually overturned, and in truth Holmes’ statement was better understood not as a 21st century test but to simply mean that while the First Amendment is not absolute, restrictions on speech should be narrow and limited.

It was the later case of Brandenburg v. Ohio (below) that refined the modern standard for restricting speech past Fire! But Holmes’ “fire in a crowded theater” line sticks around as a kind of inaccurate shorthand.

Bottom Line: The Supreme Court set a very high bar against restricting speech based on the idea that what was being said leading to harm, then in a later case moved the bar even higher. Offense or general threats alone are insufficient to justify silencing someone. People who cite “fire in a crowded theater” miss the fact that a more nuanced version of restrictions followed which currently controls speech.

Speech Can or Should Be Restricted Based on Content (Hate Speech)

There are no laws against “hate speech.” A speaker can insult people by their race, sexual orientation or religious beliefs. Often words are carefully chosen to inspire and promote hate or to appeal to crude and base instincts. Indeed, that is their point.

Short Answer: You cannot restrict hate speech. Hate speech per se does not exist in American law. Free speech means just that, with carefully limited restrictions sketched out by the Court.

Brandenburg v. Ohio (Clarence Brandenburg was a KKK leader in Ohio who used the N-word with malice) precludes hate speech from being sanctioned as incitement to violence unless (1) the speech explicitly or implicitly encouraged the use of violence or lawless action; (2) the speaker intends their speech will result in the use of violence or lawless action, and (3) the imminent use of violence or lawless action is the likely result of the speech.

A hostile reaction of a crowd does not automatically transform protected speech into incitement. Listeners’ reaction to speech is thus not alone a basis for regulation, or for taking an enforcement action against a speaker. The speaker had to clearly want to, and succeed in, causing some specific violent act to take place. Intent in particular is purposely hard to prove.

The Brandenburg test is the Supreme Court’s final statement to date on what government may do about inflammatory speech that seeks to incite others to lawless action. It was intended to resolve the debate between those who urge greater control of speech and those who favor as much speech as possible before relying on the marketplace of ideas to sort things out. Yet corporate censors have simply created their own definition of incitement, with Twitter suppressing the speech of 70,000 users simply for retweeting material with “the potential to lead to offline harm” under its Orwellian named Civic Integrity Policy.

A second type of speech is categorically excluded from First Amendment protection and often erroneously labeled hate speech: “fighting words.” This category of unprotected speech encompasses words that when spoken aloud instantly “inflict injury or tend to incite an immediate breach of the peace… [and is] “likely to provoke the average person to retaliation.” Offensive statements made generally to a crowd are not excluded from First Amendment protection; the insult or offense must be directed specifically at an individual.

The law is similar for sedition. Sedition broadly refers to seeking to overthrow the U.S. government by force. It is intimately tied to the concept of free speech in that any true attempt at overthrow will need to be preceded by persuasion, rabble rousing, and the stirring up of crowds. The line between criticizing the government and organizing for it to be overthrown is a critical juncture in a democracy.

Current law requires the government prove someone conspired to use force. Simply advocating broadly for the use of violence is not the same thing as violence and in most cases is protected as free speech. For example, suggesting the need for revolution “by any means necessary” is unlikely to be seen as conspiracy to overthrow the government by force. But actively planning such an action (distributing guns, working out the logistics, actively opposing lawful authority, etc.) could be considered sedition.

All of this may soon change, however. Joe Biden and other Leftist thinkers have been active considering new laws against “domestic terrorism” which will likely draw from and enlarge the current definition of sedition, so expect to hear more about all this. The new laws may seek to define beliefs such as “whites are a superior race” not as bad science or an unsavory opinion but as an actual threat, an illegal thought. Proposals include prohibiting people with such beliefs from joining the military or law enforcement.

The upshot is apart from some very narrow exceptions the obligation to free speech exists independent of the content of that speech. This is one of the most fundamental precepts of free speech in a democracy. There is no need for protection for saying things people agree with, things that are not challenging or debatable or offensive. Free speech is not needed for the weather and sports parts of the news. Instead, free speech is there to allow for the most rude, offensive, hateful stuff someone can imagine. The true tests for a democracy come at the edges, not in the middle.

That is why it should make a college age ACLU donor proud to know her $25 contribution helps both BLM and Nazis to say what they think, but it apparently does not. Some 69 percent of American college students believe hate speech (defined as “language intentionally offensive to certain groups”) should be (unconstitutionally) banned.

A professor at New York University wrote plainly, albeit as if he was unaware of the Constitution, “Freedom of speech means balancing the inherent value of a given view with the obligation to ensure that other members of a given community can participate in discourse as fully recognized members of that community. Free-speech protections — not only but especially in universities, which aim to educate students in how to belong to various communities — should not mean that someone’s humanity, or their right to participate in political speech as political agents, can be freely attacked, demeaned or questioned… [I]nvoking a pure model of free speech that has never existed, the dangers to our democracy are clear and present.”

The good people at NYU who believe in censoring speech have some opposition. Justice Oliver Wendell Holmes declared unpopular ideas should have their opportunity to compete in the “marketplace of ideas,” understanding free speech is not an ends but a means in a democracy. Justice Louis Brandeis held people must discuss and criticize ideas, that free speech is not only an abstract virtue but also a key element that lies at the heart of a democratic society. Even the fact that speech is likely to result in “violence or in destruction of property is not enough to justify its suppression.” Brandeis concluded “the deterrents ordinarily to be applied to prevent” violence and disruption “are education and punishment for violations of the law, not abridgment of free speech.”

Bottom Line: There is no justification for restricting speech so that people are not offended. Speech may offend, indeed that may be its point, but bad ideas are then defeated by better ideas. It’s the law.

What’s Said May Provoke Violence (Public Safety)

The idea a university or other venue cannot assure a speaker’s safety, or that the speaker’s presence may provoke violent protests, or that the institution just doesn’t want to go to the trouble or expense of protecting a controversial speaker has become a go-to justification for canceling or restricting speech. Berkeley cited this in canceling and then de-platforming (rescheduling her when most students would not be on campus) Ann Coulter, and New York University cited the same justification for canceling a conservative speaker.

Short Answer: Canceling a speaker to protect them or public safety is the absolute last resort, and some risk to safety is part of the cost to a free society for unfettered speech.

The most glaring misuse of this argument is when such a justification is applied only toward one strain of speech, say unilaterally against conservative speakers and not against others. The conclusion can only be danger comes from unpopular ideas based solely on their being presented on a left-leaning campus. The argument of restricting a speaker “for their own safety” who is otherwise willing to take on certain risks to make their voice heard can thus be applied in a biased manner. Restricting speech for safety needs to be content neutral.

Public safety has been long (mis)-used to silence otherwise protected speech. Such thinking has been used to deny permits for civil rights marches, with law enforcement saying they could not protect the black protesters from the KKK. 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. The case involved a group called the Bible Believers who used crude language (“Turn or Burn”) at an LGBT gathering. The Court held:

“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 understanding that law enforcement, or any institution, can turn first to shutting down speech that requires physical protection, has failed the courts’ tests in cases as diverse as Occupy to a Christian group bringing a pig’s head to a Muslim Arts festival. The court has long recognized content-based regulation of speech in a public forum is permissible only when the regulation “is narrowly drawn to achieve that end.”

Bottom Line: An institution cannot cite avoiding public disruption as the initial or sole reason to restrict speech. The problems of having an unpopular person speak are outweighed by the obligation to protect free speech. Maintenance of the peace should not be achieved at the expense of the free speech.

Free Speech May Be Challenged by the Heckler’s Veto

Another misargument is the Heckler’s Veto is in itself protected speech. Some on the Left feel while someone may have a right to speak, someone else has the right to shout them down and prevent them from being heard.

Short answer: Free speech is not intended to mean whomever can literally “speak” the loudest. The natural end of such thinking is mob rule, online or off.

Legitimate ways exist to challenge speakers, including engaging them or ignoring them entirely. In contrast, using a Heckler’s Veto to keep unpopular speakers from expressing their views not only stifles a particular idea, but threatens to chill public discourse generally by discouraging others with controversial ideas from sharing them. Who wants to stand up only to be shouted down by a mob, online (for example, via hacking or denial of service attackers) or offline? Protesters cannot unduly interfere with communication between a speaker and an audience. The Supreme Court concluded the government’s responsibility in these circumstances is to control those who threaten or act out disruption, rather than to sacrifice the speaker’s First Amendment rights.

The most insidious use of the Heckler’s Veto is to have audience members create a disruptive situation that compels law enforcement to shut down a speaker for them, abusing their own freedom of speech to get the government to shut down someone else’s.

Bottom Line: Balancing the rights of the speaker, those who wish to hear them, and those who wish to protest is complicated. But simply shutting down one party entirely, or allowing one party to block the rights of the others, is illegal.

It is nearly professional suicide today to defend rude or racist speech on principle, that the right to speak exists almost fully independent of what one says. It is easy in divided post-Trump America to claim the struggle against fascism (racism, misogyny, white supremacy, etc.) overrules the old norms.

But imagine your views, which today match @jack and Zuck’s, change. Imagine Zuck finds religion and uses all of his resources to ban legal abortion. Consider a change of technology which allows a Russian or Chinese company to replace Google in dictating what you can read. Instead of the outright glee the Left showed over the end of Parler and the misuse of the already evil No Fly List against Trump supporters in DC imagine the same used against something you personally believe in. Imagine the criminalization of certain thoughts and beliefs.

There may be some hope. The American Civil Liberties Union warned the suspension of Trump’s social media accounts revealed “unchecked power.” The ACLU said the decision could set a precedent for big tech companies to silence less privileged voices if they chose. Once a leading voice for unfettered speech, the ACLU started applying a “woke” political litmus test to its chosen fights during the Trump years. It seems the organization finally figured out that censoring speech anywhere, even with Trump, is a threat to speech everywhere.

Censorship is inherently wrong. People demand it when it supports their point of view (anything to dump Trump) but can’t seem to understand it will never stop there. As one former ACLU director explained “Speech restrictions are like poison gas. They seem like they’re a great weapon when you’ve got your target in sight. But then the wind shifts.”

Free speech protection covers all the things people want to say, from the furthest left to the furthest right. It’s messy as hell, and it is our essential defense against fascism and control, whether from the left or the right, from the government or from corporate actors.

Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

Posted in Democracy, Post-Constitution America

Twitter vs. the First Amendment in Social Media Censorship

October 24, 2020 // 5 Comments »

Twitter and Facebook are the censors the Founders feared when they wrote the First Amendment. In the 18th century, none of those forward-thinking men could have envisioned a day when technology and global corporations would overshadow the power of governments to control information. But that day is here, and @jack and his colleagues are trying to steal an election for Joe Biden in real time.

Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

Posted in Democracy, Post-Constitution America

Notes from the American Cultural Revolution

July 11, 2020 // 1 Comment »

 
Is America on the edge of a cultural revolution? After the failure to change so many times (say their names for a complete list) is society ready to take action against racism? Or is it just about statues again?

I’m ambivalent about statues being torn down per se, but terrified of the thought process behind the destruction. Decisions should never be made by mobs. That happens alongside the rewriting of history to fit a narrative (see The 1619 Project) and the banning of books which challenge the conformist view of Blue Check Twitter. To hell with the statues of J.K. Rowling, but fear the thought which destroys them.

The historical namesake and obvious parallel for all this is the Cultural Revolution in China, 1966-1976. Its stated goal was to purge capitalist and revisionist/traditional elements from society, and to substitute a new way of thinking based on Mao’s own thoughts. The epic struggle for control and power used the currency of the way people thought, seeking to emulsify meaning by waging war against anybody on the wrong side of an idea.

To set the mobs on someone one would only have to tie him to an official blacklist like the Four Olds (old customs, culture, habits, and ideas.) China’s young people and urban workers formed Red Guard units to go after whomever was outed. Violence? Yes, please. When Mao launched the movement in May 1966 he told his mobs to “bombard the headquarters” and made clear “to rebel is justified.” He said “revisionists should be removed through violent class struggle.” The old thinkers were everywhere and were systematically trying to preserve the elements of their power, subjugation of the people through culture being one of them.

Whetted, the mobs took the task to heart: Red Guards destroyed historical relics, statues, and artifacts, and ransacked cultural and religious sites. Libraries were burned. Religion was considered a tool of capitalists so churches were destroyed, and even the Temple of Confucius was wrecked. Eventually the Red Guards moved on to openly killing people who did not think as they determined. Where were the police? The cops were told not to intervene in Red Guard activities. Enforcement hardly mattered; the national police chief pardoned Red Guards for their crimes anyway.

Education was singled out, as it was the way the old values were preserved and transmitted. Teachers, particularly those at universities, were considered the “Stinking Old Ninth” and were widely persecuted. The lucky ones just suffered the public humiliation of shaved heads while others were tortured. Many were slaughtered or harassed into suicide. Schools and universities were eventually just closed down and over 10 million former students were sent to the countryside to perform hard labor in the Down to the Countryside Movement. A lost generation was left to fester, uneducated.

The Red Guard pogroms eventually included cannibalization of revisionists in Guangxi. After all, as Mao said, a revolution is not a dinner party.

The Cultural Revolution destroyed China’s economy and traditional culture, leaving behind a death toll ranging from one to 20 million. Nobody really knows. The Revolution was a war on the way people could think, and the Red Guard a mob set loose as its warriors. It failed. One immediate consequence of the Revolution’s failure was the rise in power of the military when regular people had had enough and wanted order restored. And oh yeah, China became even more of a capitalist society than it ever imagined in pre-Revolution days. Oh well.

That’s probably a longer version of events than a column like this would usually feature. A tragedy on the scale of the Holocaust in terms of human lives, an attempt to destroy culture on a level that would embarrass the Taliban and titillate BLM, this topic is not widely taught in American colleges. I had the honor of speaking to an elderly Chinese academic who had been forced out of her classroom to the countryside and made to sleep outside with the animals during the Revolution. She recalled long forced self-criticism sessions which required her to guess at her crimes, as she had done nothing more than teach literature, a kind of systematic revisionism in that it espoused beliefs her tormentors thought contributed to the rotten society. She also had to write out long apologies for being who she was. She personally was held responsible for four thousand years of oppression of the masses. Our meeting was last year, before white guilt became a whole category on Netflix, but I wonder if she’d see how similar it all is.

And small world — students in China are again outing teachers, sometimes via cellphone video, for “improper speech,”  teaching hurtful things from the past using the wrong vocabulary. Other Chinese intellectuals are harassed online for holding outlier positions, or lose jobs for teaching novels with the wrong values. Once shunned as anti-free speech, most UC Berkeley students would likely now agree such steps are proper. And in Minnesota To Kill A Mockingbird and Huckleberry Finn are banned because in historical settings fictional characters use a racial slur sadly common then.

There are no statues to the Cultural Revolution here or in China to trigger a discussion. Nobody builds monuments to chaos. But it’s never really about the statues anyway. In America we moved quickly from demands to tear down the statues of Robert E. Lee to Thomas Jefferson to basically any Caucasian, including “White Jesus.” It was never going to stop with confederate generals because it was not really about racism, any more than the Cultural Revolution was really about capitalism. This is about rewriting history for political ends, both short-term power grabs (Not Trump for 2020!) and longer term societal changes one critic calls the “successor ideology,” the melange of academic radicalism now seeking hegemony throughout American institutions. Author Douglas Murray is more succinct. The purpose “is to embed a new metaphysics into our societies: a new religion.” The ideas — centered on there being only one accepted way of thought — are not noble. They are a cynical tool of control.

It remains to be seen where America goes next in its own nascent cultural revolution. Like slow dancing in 8th grade, maybe nothing is going to come of it. These early stages, where the victims are Uncle Ben, Aunt Jemima, someone losing her temper while walking a dog in Central Park, and canceled celebrities, are a far cry from the millions murdered for the same goals in China. Much of what appears revolutionary today is just Internet pranking and common looting amplified by an agendaized media. One writer sees “cancel culture as a game, the point of which is to impose unemployment on people as a form of recreation.” B-list celebs and Karens in the parking lot are easy enough targets. Ask the Red Guards; it’s fun to break things.

Still, the intellectual roots of our revolution and China’s seem similar: the hate of the old, the need for unacceptable ideas to be disappeared in the name of social progress, intolerance toward dissent, violence to enforce conformity. In America these are well-set in our universities, and spreading outward so that everywhere today — movies, TV, publishing, news, ads, sports — is an Oberlin where in the name of free speech “hate speech” is banned, and in the name of creating safety dangerous ideas and the people who hold them are not only not discussed, they are canceled, shot down via the projectile of the heckler’s veto, unfriended, demonetized, deleted, deplatformed, demeaned, chased after by mobs real and online in a horrible blend of self-righteousness and cyber bullying. They don’t believe in a marketplace of ideas. Ideas to the mob are right or wrong and the “wrong” ones must be banished. The choices to survive the mobs are conformity or silence. In China you showed conformity by carrying around Mao’s Little Red Book. In America you wear a soiled surgical mask.

The philosophical spadework for an American Cultural Revolution is done. Switch the terms capitalism and revisionism with racism and white supremacy in some of Mao’s speeches and you have a decent stump speech text for a Black Lives Matter rally. Actually, you can actually keep Mao’s references to destroying capitalism, they track pretty closely with progressive thought in 2020 America.

History is not there to make anyone feel safe or justify current theories about policing. History exists so we can learn from it, and for us to learn from it it has to exist for us to study it, to be offended and uncomfortable with it, to bathe in it, to taste it bitter or sweet. When you wash your hands of an idea you also lose all the ideas which grew to challenge it. Think of those as antibodies fighting a disease. What happens when they are no longer at the ready? What happens when a body forgets how to fight an illness? What happens when a society forgets how to challenge a bad idea with a better one? Ask the dead in China.

Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

Posted in Democracy, Post-Constitution America

The Search for Heroes

June 13, 2020 // 9 Comments »

These are your new heroes: people who invoke the grace of Dr. King to label riots as lawful protests, looting as reparations. To be fair, most of that labeling is not by the thugs themselves, but by the media who elevate them to hero status hoping once again this will bring Trump down. Citing the freedom fighters in the streets, former labor secretary Robert Reich proclaimed “Trump’s presidency is over.”

Not quite yet. So the MSM report on fires outside the White House with a wink; maybe they’ll burn the place down. The Trump family taking shelter in their bunker was met with articles calling the president a coward for not facing down the mob shouting “Get off my lawn!” The implied hope was there — if we can’t impeach him, maybe we can just have someone kill him. They will deny it, but the media encouraged violence. They hoped for it, they egged it on. “Destroying property which can be replaced is not violence,” NYT’s Nikole Hannah-Jones said. “I think any reasonable person would say we shouldn’t be destroying other people’s property. But these are not reasonable times.”

Meanwhile the media met the prospect of the military’s arrival on mixed ground. The big story was not the standard “order will be restored but my God at what price?!?” but that Trump had “declared war on the American people.” Though 58 percent of voters support the deployment of the military to respond to protests, with only 30 percent opposing, the web is awash in uninformed fear mongering over martial law, posse comitatus, the Insurrection Act, and whatever else a Wikipedia search churns up.

But underlying was a subtext: you know, maybe a military coup, maybe via martial law, would be OK. We’ve heard that actually for four years, with hopes expressed one of the ex-military men in the White House, maybe Mad Dog, John Kelly, or H.R. McMaster would hero up and assume control. If not directly, then maybe by running the country as the patriot behind the throne. Upon General Mattis’ departure, the The New York Times asked “Who will protect America now?” juxtaposing the warrior-monk with the Commander-in-Cheeto.

The search for Trump-smiting heroes has strayed far from anyone deserving the title even as the qualification for the job remained hilariously low. Felon Michael Avenatti was a contender, anal porn star Stormy Daniels, and felon Michael Cohen, too. Along the way James Comey, John Brennan, Michael Hayden, Christopher Steele, and James Clapper were all given some hero time, and of course the run by Robert Mueller as Savior-in-Chief. There was the anonymous whistleblower and a handful of State Department drones at the impeachment hearings whose names are so long forgotten they might as well have been anonymous. Even the virus was given the chance at hero status if it would have been horrible enough to end this presidency.

There were also the mini-heroes like Colin Kaepernick or the women’s soccer team, whose minor protests were turned into national moments by the MSM. They do keep trying for relevancy; pink haired soccer starlet Megan Rapinoe is threatening to run for some office, and joined other minor celebs in signing a petition to defund police forces. Kaepernick started a defense fund for protesters, quoting Malcolm X to warn “Concerning nonviolence, it is criminal to teach a man not to defend himself when he is the constant victim of brutal attacks.”

The hero-seeking media partnered them with every Democratic black candidate of any type or plain white woman who could check boxes (single mom, lesbian, HIV+, veteran, etc.) The high point of this low point was reached with AOC and her Squad, whose only real accomplishments have been relentless self-promotion and helping push Nancy Pelosi into an impeachment process that squandered the Blue Wave.

But rioters as the new heroes? That’s who is left? No one wants bad cops, and every day America suffers for its original sin of slavery and 200 year failure to find repentance. The only answer the country seems to have come up with is to allow rioters to run amuck every few years to let the pressure reset. Pick your favorite — the TV version following Rodney King, the blast from Ferguson, or something old school from the 1970s out of Watts or the Bronx.

In New York City we face an 8 pm everyone-off-the streets curfew, the first in 75 years (the COVID lockdown is also concurrently still in effect.) But the protests continue, with several hundred people last night closing down streets adjacent to my apartment building. Many stores in this part of America’s richest city had already been boarded up; the men putting up the plywood coming in from white working class neighborhoods in nearby Queens said to me they’re grateful for the work post-COVID, “but if I ever have to do this for my own neighborhood some mf is gonna suffer.”

The protesters themselves were about two-thirds white, uniformly in their mid-to-late twenties. People wearing Bernie t-shirts outnumbered those still practicing social distancing by about 6:1. Everyone who would tell me where they lived said Brooklyn but if you live here you would have already guessed that. The blacks in the group appeared to be joining spontaneously from the surrounding public housing blocks and not mingling. Their chants weren’t the organized ones of the white kids, mostly “f*ck the police” accompanied by gang signs or middle fingers, just rage cleansed of politics.

None of the black protesters would speak to me, but the white protesters wouldn’t stop. They knew media and my notebook drew them like shadows to a lamp. Asked what they wanted, everyone had their lines down — it was justice and peace — but no one really had an answer to how this demonstration would help create those things. What law could Congress pass to fix any of this? Raising awareness seemed to be the closest anyone could get.

Some apartments in the area have hired private security, those beefy guys you usually see checking IDs at night clubs. One hotel employee said his five-star place had former SEALS at the door. Two NYPD helicopters were overhead for almost two hours, top cover Baghdad-style, watching the rooftops. People living nearby are angry and afraid, and such people will defend themselves, and that will be a terrible, terrible thing. It seems leaders on all sides are setting us against each other and we are embracing that as a new way of life. When was your last pleasant but intense political discussion with friends?

It was hard to connect the odd collection of images and impressions from the street with a new theme among the righteous but uneducated on social media. They seem to think burning a Target is the modern equivalent of the American Revolution against the British. I listened to the Hamilton score twice now, and even read the Klassic Komics version of Federalist Papers, and can’t find anywhere the American side whined about the British being too rough. Instead, they understood a revolution meant risking their lives, their honor, and their sacred fortunes. Denied representation under an undemocratic system, they fought.

The Founders took to the streets with none of the protections of the Bill of Rights. It was only after they won those early heroes created a Bill of Rights. It came as a package deal, because the Founders wanted to create a society where peaceful change was written into the law and so another bloody revolution was something their children would not have to undertake.

That fundamental message was missed by the Democratic Party of Fairfax, Virginia. They tweeted (now deleted but the sentiment is widely shared) “Riots are an integral part of this country’s march towards progress.” No. Riots are not a vehicle for political change in a democracy. They are the antithesis of democratic change, change by force with no desire for compromise.

It was only a week ago people said protests against government (specifically COVID restrictions) were wrong and dangerous, we should listen to the authorities, and were glad the cops were out there enforcing social distancing and masking. The people I saw at yesterday’s protest looked a lot like the people hissing at me in Whole Foods for not wearing a mask. They likely believe the 1A protects their protests but not those of the rednecks at the statehouse. To them every offense is a lynching, every day the apocalypse, every Tweet another final blow to democracy, every misunderstanding another example of systematic racism if not sexism, every non-white non-male non-straight American another victim.

Once you understand how shallow and and tiresome and hypocritical such views are you will understand the 2016 election, and in about 150 very long days from now, the 2020 election. No heroes, or Russians for that matter, necessary.
  

Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

Posted in Democracy, Post-Constitution America

Deplatforming: Break Up the Teach Giants and Save Free Speech

June 21, 2019 // 4 Comments »

In an age of deplatforming and amid howls for censorship, the viability of free speech is at stake. Antitrust laws to break up the tech giants may be the last, best hope in this ideological war.

The First Amendment doesn’t restrain censorship by private social media companies. Progressives today revel in their new-found power to enforce their own opinions through deplatforming. That only works because the platforms matter as near-monopolies; no one cares who gets kicked off MySpace. If you end the monopolies, you defang deplatforming. Trump is preparing to unleash the Department of Justice and the Federal Trade Commission as antitrust warriors against the tech giants. That just might save the ability to hear ideas outside of echo chambers of bullied consensus.

For much of American history media published things (on paper, then on radio, movies, TV, art shows, the Internet, etc.) and the First Amendment as law and as a cultural touchstone protected political thought. Nice thoughts you and your grandma agreed with and vile thoughts from ideologies your grandpa fought against. As in “I disagree with what you say, but will fight for your right to defend it.”

Then social media hit some kind of cultural saturation point around the 2016 election. People couldn’t produce and consume enough opinion, and even traditional media dumped old-timey reporting in favor of doing stories based on what others posted online. It was a mighty climax for the Great Experiment in Free Speech, no filters, no barriers, a global audience up for grabs. Say something interesting and you went viral, your thoughts forever alongside Edward R. Murrow’s, Rachael Maddow’s, and the candidate herself.

Donald Trump then did away with near-universal agreement over the right to speak, driven by a false belief too much free speech helped him get unjustly elected. Americans began not just to tolerate, but to demand, censorship to protect them. First they came for Russian media outlets RT and Sputnik, and few shed a tear. When Twitter initially dragged its feet banning Alex Jones, a “journalist” from CNN helpfully dug through Jones’ tweets to find examples of where he broke the rules. Free speech had been weaponized, using platforms like YouTube to put Alex Jones’ thoughts alongside Edward R. Murrow’s, Rachael Maddow’s, and the candidate herself.

Jones (and soon Milo Yiannopoulos, Richard Spencer, Ann Coulter on campus, et al) had few friends outside his own supporters, so it was easy to condone his deplatforming. But that was only round one. Progressives discovered those first deplatformed voices were just the tip of a white supremacist iceberg, a legion of hate that sought to stomp out immigrants, people of color, the 50% of the population who were women, all shades of LGBT, and perhaps democracy itself. And what was fueling this dirty fire, allowing these men to organize (what the Bill of Rights calls “freedom of assembly” the deplatforming community calls “coordinative power”), raise money, and spread their bile (deplatformers call it red pilling)? Social media. Someone needed to do something about all this free speech before it was too late and America (re-)elected the wrong president again.

Somewhere along the way progressives realized people who largely thought like them controlled key platforms in America. Offline that included college campuses. Jeff Bezos could simply buy the Washington Post to silence some voices and amplify others. Advertisers could shift corporate funds to put political thought they disliked out of business. Authors could have books pulled and lose long-standing contracts. And none were bound by the 1A. But social media was where the real action was. Twitter, with a tweet, could silence what once were inalienable rights. The sparse haiku clarity of the First Amendment was replaced with groaning Terms of Service that meant whatever the mob wanted them to mean. The freedom to speak on social media no longer existed independent of the content of speech. And thus the once loathed Heckler’s Veto, the shout-down, was reimagined as the righteousness of deplatforming, the online equivalent of actually punching Nazis to silence them. And the 1A bullies were thirsty.

So there was nothing to prevent deplatforming journalist Steven Crowder for calling Vox writer Carlos Maza a “lispy queer Latin” on YouTube. In fact, Maza successfully campaigned across social media to get YouTube to demonetize the other journalist when the site initially hesitated. YouTube then announced an update to its hate speech policy broadly prohibiting “videos alleging a group is superior in order to justify discrimination, segregation or exclusion” and deleted the classic documentary studied in every film school, Leni Riefenstahl’s 1935 Triumph of the Will. YouTube also deplatformed history teachers for uploading archive material related to Adolf Hitler, saying they breached the new guidelines banning hate speech.

The site previously sent entire genres down the Memory Hole, banning “videos promoting or glorifying racism and discrimination.” That purge deplatformed News2Share, a site which covered everything from pro-Assange protests to 2A supporters rumbling with Antifa. YouTube proudly asserts since 2017 it has reduced views of “supremacist” videos by 80%.

Gab was threatened by Microsoft with the cancellation of its web domain because of two “offensive” posts made by a minor Republican candidate. Facebook/Instagram banned “white nationalist and separatist” content, including at one point documentaries from Prager University. It also deleted posts from veteran journalist Tim Shorrock criticizing the New York Times’ coverup of American support for previous South Korean dictatorships. Facebook allegedly now has an office dedicated to watching what its users do outside of Facebook, looking at their work as journalists, what they say off-line, what tattoos they have, to determine whether they should be allowed to participate on Facebook. Pintrest deplatformed groups and messed with searches involving anti-abortion content. Twitter in turn suspended the accounts of those who blew the whistle on Pinterest in retaliation.

Google refused ads for a gala featuring Secretary of State Mike Pompeo, something they claimed was in violation of their policy on “race and ethnicity in personalized advertising.” Google company sees itself at the nexus of ideological war, declaring, “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.”

Google might soon add its terms of service to the First Amendment. A leaked document from the tech giant argues that because of a variety of factors, including the election of Donald Trump, what we call the “American tradition” of free speech may no longer be viable. The report lays out how Google can serve as the world’s “Good Censor,” a stern hall monitor figure protecting us from harmful content and, by extension, dangerous behavior, like electing the wrong president again. And all this comes not a moment too soon — the Southern Poverty Law Center claims it has taken “blood in the streets for tech companies to take action.” More simply put, the group just says “tech supports hate.” There are many more examples of those deplatformed.

But why wait for someone to commit hate speech when technology allows deletion when hate is largely still a thought crime? Google developed a tool called Perspective which aims to root out “hate speech” before it spreads. The software uses machine learning to spot “toxic” content in online conversations to preemptively redirect their trajectory. The tool, designed to monitor comments section, could also be deployed against content creation in real time. As you type.

Websites too right of center have serially lost their web hosts and gone dark. Website security company Cloudflare “woke up … in a bad mood and decided to kick [a hate site] off the Internet.” On another site, parents who started a petition questioning their local school’s transgender policy were deplatformed. I was deplatformed by Twitter. There are many more examples. Mashable claimed overall 2018 was the year “we cleaned up the Internet,” while Vice announced deplatforming “works” and celebrated censorship of fellow journalists.

A version of deplatforming has moved off-line as well. The ACLU — the ACLU which once stood by actual Nazis because the beautiful concept of free speech was so much more important than whatever dumb stuff those Nazis said in Skokie which no one remembers anyway– started applying an ideological/political litmus test to which free speech cases it would support following Charlottesville. Some people are now deplatformed out of the justice system.

Though the bulk of deplatforming is aimed at right of center voices, there are examples from the left, often cited as “good news” that “see, this isn’t a progressive jeramaid.” But in fact more censorship is not a good thing for free speech, however equally distributed. And this is not as much a slippery slope question as it is ideological warfare. Progressives want to eliminate the opposing ideas. They have no problem with free speech that, for example, criticizes religion, or sends drag queens to read to children in public libraries. Flag burners are welcome! Conservatives, not so much.

Two visions of free speech have overtaken America. One is now widely dismissed as dangerous because it fought for a marketplace of ideas that could include hate speech, while another danced a jig because America’s new censors are ideologically sympathetic corporations currently supporting the progressive agenda. The latter group is comprised of people (some 69% of American college students believe intentionally offensive language should be banned) seemingly unable to project a future where those corporate censors’ might support a different set of views. Instead, as a mob today they gleefully point to a viewpoint as “hate speech” and let @jack purify it away.

It is very important to underline there is no law against hate speech. Hate speech is an umbrella term used by censorship advocates to describe 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 upshot is that apart from some very narrow definitions of violence-inducing words, the obligation exists to the concept of free speech independent of the content of that speech. This is also one of the most fundamental precepts of free speech in a democracy. There need be no protections for saying things that people agree with, things that are not challenging or debatable or offensive; free speech is not really needed for the weather and sports parts of the news. Instead, free speech is there to allow for the most rude, offensive, hateful, challenging stuff you (or your neighbor, your political party, your government) can imagine.

The Founding Fathers, themselves now seen as misogynist slave owners except the scrubbed version of Hamilton, had left a ticking time bomb inside the Bill of Rights. You in fact could not punch nazis to silence them without going to jail. The 1A protected hate speech! There is no justification for restricting speech so that people are not offended. Speech may offend, indeed that may be its point, but bad ideas are then defeated by better ideas. Yet today Google (and Facebook, Twitter, and their successors) seem to perceive these old ideas as more outmoded than the powdered wigs the Founders wore when they wrote them.

What to do? Efforts to extend the First Amendment to entities like Facebook, arguing they are the new public squares (seven of 10 American adults use a social media site), have been unsuccessful.

Trying to classify social media companies as “publishers” has also been unsuccessful. They insist they are “platforms.” They say they are like the phone company, which lets you talk to a friend but exercises zero control over what you say.

Being a platform is desirable for Facebook and the others as they have no responsibility for the content they print, no need to create transparent rules or appeals processes for deplatforming, and users have no legal recourse. Publishers,on the other hand, are responsible for what they print, and can be taken to court if they print something libelous or maliciously false.

Social media’s claim to be a platform and not a publisher is based on Section 230 of the Communications Decency Act. That section however was predicated on social media companies being neutral public forums in return for offering them legal protections against being sued over content they present. Companies like Twitter now want it both ways – they want the protection being a platform like the phone company offers but after the 2016 election they also want to ideologically manipulate their content as publishers do.

Breaking through the platform-publisher question will require years of court battles. The growth of much of the web is driven by the lack of responsibility for the content third parties chuck online. It is a complex situation when applied to everything from knitting site hosts to Nazi forums, and across international borders.

Yet social media entities’ control over speech is so significant a more immediate solution is demanded. Google owns 90% of the search market, three quarters of mobile and 70% of desktop browsing, and along with Facebook, 50% of online ads. YouTube dominates video. Facebook makes up two-thirds of all social media, with Twitter holding down most of the rest. Large enough on their own, the platforms also work in concert. One bans say Alex Jones, most of the others follow and then whomever is last to act is chided into action by the mob and threatened with advertiser boycotts. Eventually (as with Jones) Venmo and Paypal also cut them off.

With legal and legislative solutions ineffectual for preserving free speech online, enter the major antitrust enforcement agencies of the executive branch. The Department of Justice is preparing to investigate Google’s parent company Alphabet, while the Federal Trade Commission is doing the same for Facebook. The goal may be to break the tech giants into multiple smaller companies, as was done at the dawn of mass electronic communication in America.

Monopolies on speech first appeared as national media appeared, in the form of radio stations linked into networks. For the first time, an opinion expressed on air in New York was broadcast everywhere. The once-mighty Mutual Broadcasting System successfully filed a complaint which led to a Supreme Court battle claiming NBC and CBS controlled the national market. NBC was ultimately forced to split into two networks, Red and Blue. Regulation followed. The 1934 Communications Act required broadcast licensees to operate in the “public interest, convenience, and necessity.” This translated into things like the Fairness Doctrine, which requires broadcasters to cover politically important issues, ensuring various points of views are given equal time. The public-interest obligation also protects against one company controlling all the stations in a market.

The end of social media mega-companies, with none big enough to silence effectively any significant amount of free speech, would be a clumsy fix for a problem the Founders never imagined – citizens demanding corporate censorship because they didn’t like the results of the last election. It is nowhere near the comprehensive solution of an expanded First Amendment a democracy should grant itself, but in a world where progressives fail to understand the value of free speech it may provide enough of a dike against censorship to hold the waters back until reason again takes hold.

Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

Posted in Democracy, Post-Constitution America

Julian Assange Will Die Alongside Your 1st Amendment Rights

April 11, 2019 // 26 Comments »

(Reprinted from December 2018 following Assange’s arrest in London April 11, 2019)

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 © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

Posted in Democracy, Post-Constitution America

Social Media Legally Falls Under the First Amendment; Here’s How

January 18, 2019 // 14 Comments »

 
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 © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

Posted in Democracy, Post-Constitution America

Google, the “Good Censor,” is Going to Think for You

October 24, 2018 // 7 Comments »

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 © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

Posted in Democracy, Post-Constitution America

Corporate Censorship Brought Us the America I Always Feared

August 13, 2018 // 4 Comments »

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 © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

Posted in Democracy, Post-Constitution America

Why I Support Julian Assange (And Why You Should Too)

July 19, 2018 // 15 Comments »

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 © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

Posted in Democracy, Post-Constitution America

Julian Assange and the Future of a Free Press (Long Form)

July 18, 2018 // 4 Comments »

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 © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

Posted in Democracy, Post-Constitution America

FARA: Freedom of the Press, But On the Government’s Terms

March 31, 2018 // 21 Comments »

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 © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

Posted in Democracy, Post-Constitution America

Movie Review: The Post, or, History as 2018 Wants It to Be

January 19, 2018 // 11 Comments »

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 © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

Posted in Democracy, Post-Constitution America

The Media and the Myths of Trump

December 1, 2017 // 23 Comments »

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 © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

Posted in Democracy, Post-Constitution America

The First (Terms of Service) Amendment

November 10, 2017 // 4 Comments »

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 © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

Posted in Democracy, Post-Constitution America

Safety or Liberty? The Constitution Says We Can Have Both

October 31, 2017 // 3 Comments »

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 © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

Posted in Democracy, Post-Constitution America