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FARA: Freedom of the Press, But On the Government’s Terms
A bipartisan group of lawmakers called for Attorney General Jeff Sessions to investigate if Al Jazeera, the news outlet connected to the Qatari government, should register with the Justice Department as an agent under the Foreign Agents Registration Act (FARA.)This has broad implications for our First Amendment, our access to dissenting opinions, and in how the rest of the world views us.
The lawmakers claim Al Jazeera “directly undermines American interests” and broadcasts “anti-American, anti-Semitic, and anti-Israel” material. Al Jazeera would join Russian outlets RT and Radio Sputnik, Japan’s Cosmomedia, the Korean Broadcasting System, and the China Daily in registering as foreign state propaganda outlets. DOJ has also been asked to look into a range of other Chinese media.Ironically, the bipartisan request to force Al Jazeera to register comes amid a controversy over the network’s filming of a documentary critical of pro-Israel lobbying in the U.S. The network used an undercover operative to secure footage revealing possibly illegal interactions between advocacy groups and lawmakers.
The Foreign Agents Registration Act was never intended to regulate journalism. The legislation in fact includes finely-worded exemptions for approved journalists, scholars, artists, and the like, who are not required to announce themselves as “agents of a foreign principal” regardless of what they create. The law was created in 1938 in response to German propaganda, specifically Nazi officials and those they employed to make pacifist speeches in then-neutral America and to organize sympathetic German-Americans. By requiring those working for the Nazis to register, and report their finances and spending, U.S. counterespionage authorities could more easily keep track of their activities.
FARA law doesn’t even prohibit straight up propagandizing, though it seeks to limit the influence of foreign agents by labeling their work, apparently to help out Americans who otherwise would not be able to tell the difference on their own. The law specifically says “Disclosure of the required information facilitates evaluation by the government and the American people of the statements and activities of such persons in light of their function as foreign agents.” Indeed, the Atlantic Council claims these actions “do not suppress freedom of speech; instead, it serves the First Amendment by supplementing information available to the public.”
Here’s a use of FARA in line with the law’s original intent: the Abu Dhabi Tourism and Culture Authority, whose job is to lobby Americans on behalf of a foreign government, in this case, to take vacations in Abu Dhabi, is a FARA registrant. You know who is up to what when the Abu Dhabi Tourism and Culture Authority says they have decent beaches you should visit. Other typical registrants might include an American lawyer hired by Saudi Arabia to lobby Congress in favor of more arms sales. Being a foreign agent is happily legal and very popular with former Congresspeople and government bureaucrats; you just need to announce your employer.
But FARA can also serve a more nefarious purpose, as a Catch-22 prosecution (a “compliance statute”) for those the U.S. wants to declare as foreign agents but who resist; if the feds want to taint you as a foreign agent, you either agree and register, or face jail.That is what happened in the case of RT and Radio Sputnik. Following the 2016 election, frightened officials demanded the Russian news organizations register as propaganda agents. RT’s editor-in-chief maintained her network was an independent news outlet, but chose to comply rather than face criminal proceedings, adding “we congratulate the American freedom of speech and all those who still believe in it.” Critics then swung RT’s snarky comment on free speech into “proof” it unfairly criticizes America.
The use of FARA to allow the government to declare which foreign media outlets produce “news” and which produce “fake news” and propaganda is “a shift in how the law has been applied in recent decades,” said the Committee to Protect Journalists. “We’re uncomfortable with governments’ deciding what constitutes journalism or propaganda.”
As the Justice Department wields the FARA weapon against journalists, here’s what they will face.Designation under FARA requires a media outlet label its reporting “with a conspicuous statement that the information is disseminated by the agents on behalf of the foreign principal,” a nutritional label for journalism. It also means the outlet must open its finances to the Department of Justice. It means Americans who choose to watch that media, or participate in its talk shows, or who work legally for those outlets, open themselves to accusations of “treason” (one political staffer was fired after being interviewed by Radio Sputnik.) It adds credence to the muddy cries of “fake news” used to shut out dissenting opinions. It gives credibility to groups like PropOrNot, which lists websites it “determines” are Russian propaganda, and Hamilton 68, which does the same for Twitter.
Subjecting journalists to FARA sends a message about America. It encourages foreign governments to impose restrictions (Russia has already passed a law requiring outlets like CNN to register as foreign agents.) It uses the full authority of the American government to declare Al Jazeera, a network which reaches 310 million people in more than 160 countries, has no equal place within a free press because its broadcasts are “anti-American, anti-Semitic, and anti-Israel.” In the specific case of Al Jazeera, it seemingly extends America law to cover anti-Israeli propaganda as well. As with attempts to claim Wikileaks is espionage and not journalism, this use of FARA says the U.S. will use its laws to harass those with “un-American” opinions.
The use of FARA to restrict foreign journalists also adds to rising sense among too many already frightened Americans that our freedoms are being used against us. “The U.S. is at a huge strategic disadvantage when it comes to the New Media Wars because our information environment is so open and rich,” said one former CIA Deputy Director of Intelligence. Perhaps too many dissenting voices isn’t a good idea. The Internet is just too much freedom for the First Amendment to responsibly allow. Maybe the government should become more involved in what we say, hear, watch, and read, as Facebook and Twitter (who banned RT from advertising) do now, you know, for our own protection. Our open society is a vulnerability, not a strength.
The roots of our most basic rights flow from the freedom of the press written into the First Amendment. The press must be unfettered in reporting so citizens can make informed decisions when voting, protesting, and petitioning their government. Government should play no role in designating good journalists from bad, licensing who can report, or otherwise interfering with access to a broad range of ideas. Sorting out the marketplace of ideas — opposing opinions, bias exposed and hidden — is supposed to be our job as an informed citizenry anyway.
Copyright © 2017. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity. Follow me on Twitter!
Movie Review: The Post, or, History as 2018 Wants It to Be
Steven Spielberg’s “The Post,” starring Meryl Streep and Tom Hanks, tells the story of the Washington Post’s decision in 1971 to publish parts of the Pentagon Papers, the government’s secret history of the Vietnam War. It’s a whimper of a movie, throwing bad history on the screen to make a clumsy but ever-so 2018 political point.
So how do you make a two hour drama out of a decision? There are only so many scenes you can shoot, though Spielberg tries them all, of The Suits saying “You can’t publish!” while Meryl and Tom emote “We must!” Well, you more or less override real history in favor of a Lesson, whitewash a decision made in part to make the Post look better against its competition of the time the Washington Star, and sideline the real hero, Daniel Ellsberg.
A bit of history. Ellsberg first leaked the Pentagon Papers exclusively to the New York Times; despite what “The Post” claims, the Washington newspapers were far too provincial to qualify as full peers. The Pentagon Papers were a 7,000 page classified history of the Vietnam War, 1945 to 1968, prepared under the order of Kennedy-Johnson Secretary of Defense Robert McNamara. We know now McNamara, while publicly supporting the war, was privately consumed by doubt, and the Papers were his act of contrition. Times’ reporters spent three months reading and verifying the documents. Simultaneously, the Times set its legal team to preparing the now classic First Amendment defense it knew would be needed.
The risks were huge — no one had ever published such classified documents before, and the senior staff at the Times feared they would go to jail under the Espionage Act (though only Ellsberg was actually charged as such.) The Nixon administration found a court to order the Times to cease publication after an initial flurry of excerpts were printed in June 1971, the first time in U.S. history a federal judge censored a newspaper. Things got so dicey the Times’ outside counsel actually quit the night before his first appearance in court, claiming the newspaper had indeed broken the law. It was only at that point the Washington Post actually obtained an excerpt from the Pentagon Papers.
The movie brushes past the Times’ rigorous fact checking, raw courage, and masterful First Amendment legal defense to focus on the Post’s big risk: the paper was about to offer its stock publicly, and problems with the government might hurt share prices. Nixon shut down the Post’s publishing anyway after only two days, and the paper went to court. The Post’s lawyers made no First Amendment case, more afraid of being found in contempt of the injunction against the Times than the Espionage Act. The Supreme Court rolled their briefs into the Times’ case, and the landmark victory for the First Amendment was issued as New York Times Company v. United States. The Times won the Pulitzer Prize. The Post did not.
But hell, you’re Steven Spielberg. You have the True Guardians of Liberal-Lite, Blue America’s mom and dad, Meryl Streep and Tom Hanks. What does history have to do with your movie anyway? It all begs the question of why Spielberg chose to tell the story of the Pentagon Papers, which is really the story of the New York Times with its spine still in place, via a secondary player, the Washington Post?
“The Post” has no real interest in the Pentagon Papers except as a plot device, almost an excuse needed to make this movie. “The Post” simply takes a now universally praised, and thus middle America safe (for the same reason, “Saving Private Ryan” was set in the Good War instead of god-awful Vietnam) episode of journalism as a launching point to attack what it sees as the Trump Administration’s efforts to weaken a free press. Today’s WaPo, under the ownership of one of America’s richest liberal capitalists, Amazon’s Jeff Bezos, has refashioned itself as the newspaper of #Resistance, declaring in undergraduate essay level pseudo Orwellian prose its motto to be “Democracy Dies in Darkness.”
By setting the story back in ye olde timey 1971, Spielberg can appropriate Daniel Ellsberg, instead of Obama-era whistleblowers Chelsea Manning and Edward Snowden, who still hover near to traitor status for many. Tom Hanks himself gave the game away, calling Ellsberg a hero in an interview while refusing to characterize Snowden at all.
What was clearly the right thing to do to help bring down (Trump stand-in) Richard Nixon can become all morally ambiguous when Obama is in the hot seat, hence the historical setting. The Obama administration charged more people under the Espionage Act for alleged mishandling of classified information than all past presidencies combined, including Nixon’s. But by more or less bypassing the core issue both whistleblowers and real journalists stare down — there are higher goals than obedience to government — Spielberg ducks the real lesson in favor of an easy shot at the current administration.
“I think our country has a love-hate relationship with whistleblowers,” attorney Jesselyn Radack, who helped represent Manning, Snowden and, full disclosure, me, told The American Conservative. “I wish I could be optimistic about ‘The Post’ shifting the needle of public opinion. However, it’s a hopelessly mismatched tug of war when the entire apparatus of the U.S. government — whether led by Obama or Trump — holds one end of the rope.”
Using the old Washington Post as the launching point for what is essentially just a trope-ish Op-Ed (Freedom of the Press, good! Republican Presidents, bad! Journos, Indiana Jones!) also allows Spielberg to show 1971 exactly as 2018 wants to remember it. Meryl and Tom, playing Katherine and Ben, are perfect role models for how men and women should work together, respectful and considerate, with no mansplaining or inappropriate remarks to be found.
Meanwhile, the newsroom is era-appropriate white and male, but everyone is on their best behavior for the camera; no fanny slapping, no one addressing the clerical staff as “honey” or demanding coffee. The New York Times of 1971 was too male, and even Spielberg couldn’t shoe horn a female protagonist into that picture, never mind create a hit-you-over-the-head subplot of Katherine Graham morphing from Betty Crocker into a fierce, persistent 2018 role model for all women and girls (one of the later shots in the film shows Streep leaving the Supreme Court to gently part a crowd of adoring young women, adream in halo-like glow at her proto-feminism). There is no subtlety to the message. Spielberg might as well have costumed Streep wearing a pink pussy hat in the boardroom scenes.
Nobody expects movies to be 100% historically accurate, but “The Post” twists facts to present a battle that really wasn’t fought this way at all. The film is an effective piece of polemic, taking full advantage of the skills of some of America’s most talented practitioners, who one imagines believe they made a Movie That Matters For Our Times. Spielberg, Streep, and Hanks, all supporters of Hillary Clinton, couldn’t get her elected, so they did the next best thing. They created a little confection likely to win multiple Oscars and play forever on Amazon Prime beating up the guy she lost to.
Full Disclosure: Dan Ellsberg is a hero of mine.
Copyright © 2017. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity. Follow me on Twitter!
The Media and the Myths of Trump
Donald Trump’s victory was so loathsome to journalists that instead of acknowledging their cultural and partisan blindness lead to them misreport the election, they doubled down, growing two overlapping myths to delegitimize the presidency they never wanted to happen.The two myths are Trump did not really win the election, and that once in office Trump is so unfit to serve that he is a danger to the nation and must be removed as a people’s act of literal self-defense. Psychiatrists call this denial; political scientists may call it a kill shot to democracy.
The myth Trump did not actually win exploded outward like the Big Bang from November 8, 2016. There were the Jill Stein recounts, and false claims of voter fraud, gerrymandering, and racist voter suppression that lead to an “unfair” win. This all morphed into what stands as one of the most ignorant themes ever expressed in American politics, that because Clinton “won” the popular vote she was somehow entitled to the Oval Office. Reporting on all this came close to claiming the Constitution itself conspired against Hillary. “We’re in uncharted waters,” proclaimed CNN’s Anderson Cooper; the network also featured an ex-CIA officer calling for a new election, what in CIA-speak is better known as an overthrow.
Instead of dismissing such unconsitutional nonsense, the media featured elaborate justifications, and coined the term “Hamilton Electors” to tie the quixotic effort to one of the few Founding Fathers voters knew via song. An online petition to declare Clinton president that in normal times would have been seen as a crank call was instead promoted into gaining the largest response in Change.org history. Editorials called for the Electoral College vote to be unconstitutionally postponed. Once-cogent pundits like Lawrence Tribe and Robert Reich were handed mainstream platforms to morph themselves into human cottage industries proclaiming the impeach-ability of various Tweets and statements.
Even today, the New York Times’ White House correspondent beats the fan fiction drum for the importance of the popular vote. Her paper continues to focus on the urgent need to do away with the Electoral College after 220 years, the system that put Obama and Clinton and Carter into office, before the next time Trump runs. In what under normal times would be dismissed as a conspiracy theory, Huffington Post features interviews saying the election may not be “legitimate,” over a year later.The efforts to somehow keep Trump from office continued right up to the swearing in ceremony, itself boycotted by Democrats who did not want to “normalize” the election.
It was at that point the second myth came to the fore: Trump was unfit to serve. The uber-disqualification is that Trump is literally a Russian agent (“Is Donald Trump Working for Russia?” asked New York magazine, in a headline that would have made reporters blush during the McCarthy Red Scares), directly under the control of the Kremlin, who holds power over him via some sort of pornographic pee tape no one has seen, or sweetheart real estate loans no one has seen, or in return for buying Trump the election demonstrated by evidence no one has seen.
Alongside the “Trump is a Russian agent” disqualifier are a handful of memes never before seen in American politics. Trump’s hotels make his presidency illegal under the Emoluments Clause, a Constitutional snippet that generally escaped notice for 220 years (that Obama might get a $60 million book advance to write about things he did in office but only paid out, alongside six figure speaking engagements, after he left office, or that foreign governments donated to the Clinton Foundation while Hillary was Secretary of State, are not discussed.) Trump’s tax returns, available to the IRS for decades, are a media strawman; only if the people of Twitter examine those old 1040s can democracy be saved, IRS auditors and their technical knowledge be damned. Maxine Waters, a Member of Congress, said Trump should be impeached because he is boorish and crude.
Waters’ statements and other similar, albeit slightly more coherent ones, are addendums to the myth, the idea that Trump is on borrowed time. The media fans the flames of Mueller, expecting the smoking gun that has so far eluded the CIA, NSA, FBI, IRS, and NYT to emerge any day. The 25th Amendment, created after the Kennedy assassination to codify the line of succession should the president become incapacitated, has been crowd-sourced into some sort of psychological failsafe mechanism whereby the Vice President, et al, will wake up one morning, realize the Washington Post has been right all along, and force Trump out of office.
Ensuring that Trump is to appear as unqualified, the media focuses on “evidence” of that. Looking at his trip to Asia, the main story out of the Japan leg was some silliness over Trump overfeeding fish, not what was discussed with the Japanese regarding North Korea. CBS News’ White House Correspondent purposefully pulled a quote about Japanese auto manufacturing out of context to make Trump appear uninformed, whereas the full statement paints the opposite picture. From China, the theme was Trump was “rolled,” cajoled into, well, something, via a VIP visit to the Forbidden City. The main point of the APEC meeting in the Philippines? A silly photo. His speech in Korea, focusing on the problems with the North, was largely reported based on a irrelevant cherry-picked sentence about a Trump golf course. Back at home, the New York Times headlined Trump taking an awkward drink of water.
Running alongside such spot reporting is a steady stream of anonymous source-based predictions war is imminent in Iran or North Korea, and that DeVos, Mueller, Sessions, Kushner, Tillerson, Mattis, and Kelly will be fired or resign. That such things haven’t happened in a year is irrelevant; the media says without evidence they still might. A silly Trump tweet criticizing a reporter becomes “evidence” the President has abandoned the First Amendment. Journalists, who as a group once took pride in their objectivity, now openly proclaim their “not Trump” political allegiance.
Routine tussles of government, the stuff of our system, are overstated to a rube-like public such that courts doing what they are supposed to do, ruling on the President’s immigration orders, are inflated into “constitutional crisis.” It’s not a crisis if the system functions as it was created to do.
Journalistic standards of evidence, typically requiring multiple sources and/or on-the-record witnesses, are replaced by the egregious use of anonymous sources that are little more than gossip from interns. Watch the mushroom-level growth of headlines with colons, such as Revealed:, Sources: or Reported: and passive constructions such as “I’m told…” that get around the fact that the story is not really based on facts.
Reporters compete with one another to show how aghast they are at the “latest.” Newsweek is gleeful at the possibility Trump won’t finish his term. CNN talks of deposing the president. Politico runs an innuendo-heavy but fact-free piece claiming the KGB, seeing into the future, compromised Trump in 1987.
The sum of such snarky, non-substantive reporting is clear: America is on the lip of chaos, Trump is not leading America, he is accomplishing nothing of substance, he is unfit.
But the most unprecedented element of myth is the steady stream of reporting the President of the United States is so mentally ill that his continued presence in the White House is a suicide plan for America. Never before have mainstream media so freely and casually declared the President to be medically, legally, insane, and all based on little but fear and a few Tweets. The media has normalized this into common knowledge; as an example, an article pitch I made to a global media outlet explaining why war was not imminent in Korea was rejected because I could not “prove” Trump was not insane (The American Conservative bravely published my story.)
The myth is buttressed by medically unethical remote diagnosis, such as that of Dr. John Gartner, former assistant professor of psychiatry at Johns Hopkins University Medical School. “I don’t think people have any idea how close we are the point of no return,” Gartner said. “I think that there is an 80% chance he’s going to push that nuclear button. Why? Number one, Trump is a malignant narcissist. As far as I know, I cannot recall a single malignant narcissist in history who did not start a major war.” Gartner concludes “the noose is tightening around their necks and unlike Richard Nixon, Trump and his cabal are not going to leave gracefully. Donald Trump is going to be really like Bonnie and Clyde; he’s going to shoot his way out.”
Though the nation’s nuclear command and control procedures have for better or worse been left relatively unchanged since the Truman administration, it is only now, under the guise that Trump is insane, that the media and some Members of Congress are promoting the idea that change is needed. Media outlets champion the idea the military could refuse to launch missiles, advocating insubordination, essentially a coup, as the best hope our nation will survive. Such paranoia exceeds the worst of Cold War fears.
Along the way the myths have created their own new normals; it is now perfectly acceptable to call out the President with schoolyard-taunts: Trump has small hands, a joke about Cheeto Jesus, the orange man-child, homophobic jokes about Putin and bromance, that sort of thing. Writers like Charles Blow in the New York Times build whole columns out of lists (“ignorant… churlish… tacky”) of personal insults.
For the first time in our nation’s history powerful mainstream forces are trying to change the results of an election. Shocked by Trump’s victory, many in the media wanted to stop him from entering the White House. Failing that, they delegitimize the president in the manufactured-from-thin-air belief that he is such a threat that it is necessary to destroy democracy in America to save it.
At some point Trump will leave office. CNN and others would be expected to return to their originally scheduled programming at that time. The problem is once you let the genie of trying to overturn an election loose, you won’t be able to stop it. It’s foolish to think this process won’t be used again in 2020, or 2024. The clumsiness of the Obama birth certificate conspiracy to delegitimize a president is nothing compared to the approach being tried with Trump. People are getting more skillful at the game, learning more about the tools available. A new political weapon has been unsheathed. America is playing with fire.
Copyright © 2017. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity. Follow me on Twitter!
The First (Terms of Service) Amendment
The First Amendment must catch up with the 21st century. What we say on Twitter and elsewhere online is too important to be governed by a Terms of Service agreement.
I recently wrote about how the Ohio State University is preventing white supremacist Richard Spencer from speaking on campus. Despite falling under the First Amendment, Ohio State is looking for a legal loophole to block speech it doesn’t agree with.
The semi-comforting news is that Ohio State’s face slap to the First Amendment is subject to legal challenge. Not so in the cyberspace-based public square of the 21st century. What should be the modern arena of diverse ideas is instead controlled by corporations and their self-written Terms of Service. Hiding behind the bushes of private ownership, the quasi-public forums on Twitter, Facebook, Google, and their predecessors and successors skirt the First Amendment to control what people say, read, and by extension, think. They are the censors the Founding Fathers feared. It is hard to imagine a more significant threat to the free exchange of ideas.
It is time to expand the First Amendment to quasi-public institutions.
The scope of the First Amendment has regularly expanded. In the earliest days of the Republic the Bill of Rights applied only to the federal, and not any state or local governments. It wasn’t until the post-Civil War incorporation doctrine, followed by court cases well into the 20th century, that those restraints on government applied equally to the states. In its own founding days Ohio State could have easily banned a speaker for his beliefs.
Actually, Ohio State might have been able to ban a speaker it found offensive until even more recently. It wasn’t until a 1995 case that the Supreme Court held a university’s choices on funding student publications fell under the First Amendment’s obligation not to discriminate against particular viewpoints. Other expansions of the First Amendment took place in the 1950s, when the Supreme Court extended protection to non-traditional “political” speech, including nudity and advertising.
The First Amendment grows with the times, and needs to do so again to take in what Justice Anthony Kennedy called the “vast democratic forums of the internet in general, and social media in particular.”
The problem is that those forums today enjoy the freedom to suppress what once were inalienable rights.
When you use various web sites, you agree to a dense set of conditions, Terms of Service, along with the understanding that Twitter (we’ll use them as shorthand for the range of sites and apps) can interpret things as they wish. So while the Supreme Court continues to hold the line against banning “hate speech,” Twitter is free to apply any standard wishes, along any political or ideological lines it wishes. Twitter may ban speech acting as an arm of the government, skirting the First Amendment because it can.
That appears to have been what happened with Twitter’s decision to ban advertising from Russian media outlets RT and Sputnik. Both have been accused via a hazy intelligence community assessment of influencing the 2016 presidential election. While the federal government is stuck with that creaky old First Amendment preventing it from chasing RT and Sputnik back to Moscow, Twitter can — literally with a Tweet — silence them. Twitter quickly followed the Russian action with a decision to ban whatever it thinks are “violent groups and hateful imagery and hate symbols.” In the same week Twitter suspended the account of conservative Roger Stone. No explanation was given, though the suspension appears to be related to Stone’s angry Tweets directed at CNN.
My own Twitter suspension occurred in the process of defending myself against several antifa people who conflated my defense of free speech in the broadest terms with what they believed was my personal support for nazi hatred. Their threats to “punch nazis” lead me to respond. My response was deemed by Twitter incitement to violence (though it would never meet the actual definition of that term the Supreme Court established) and I got the boot. When suspended, Twitter still allows you to read your timeline, so I could see attacks continue until the antifa people tired of it all. I could not block them or respond in any way. It felt a lot like five big guys holding me down while a bully whacked away.
Google has quietly implemented censorship in the most well-intentioned way possible: to stop child predators. The internet giant tweaked its English-language search results to block sites it believes link to child pornography. “We will soon roll out these changes in more than 150 languages, so the impact will be truly global,” the company claims.
While no one can argue against stopping child predators, those same tools can be used in other ways, known as the search engine manipulation effect. Generally, the higher an item appears on a list of search results, the more users will click on it. Research shows putting links for one candidate above another in a rigged search can increase the number of undecided voters who chose one candidate by 12% or more.
Burying a link can have a similar effect. Google highlighting an OpEd that argues one way to the query “What is Trump’s Russia policy?” while leaving an opposing opinion out of the search results is a critical free speech issue of our time. A current Google search for “greatest president of the 20th century,” for example, highlights a brisk historical debate over Ronald Reagan versus Franklin Roosevelt, and brings up over 300,000 sites. What if it yielded only one? America would never accept government issuing a list of approved books for dead tree libraries few use anymore, but blithely accepts the same from the most-used research tool in human history.
Technology has changed the nature of censorship so that free speech in 2017 is not as much about finding a place to speak, but about finding an audience. Censorship in the 21st century targets speakers (example: Twitter) and listeners (Google.) There will soon be no fear that anyone will lock up dissident thinkers in some old-timey prison to silence them; impose a new Terms of Service and they are effectively dead.
The arguments that Twitter and Google are private companies, that no one forces you to use their services, and in fact you are free to switch to MySpace and Bing, are tired attempts to justify end runs around the First Amendment. Platforms like Twitter are the public squares of the 21st century (seven of 10 American adults used a social media site in 2016), and should be governed by the same principles, or the First Amendment will become largely irrelevant.
Pretending a corporation with the global reach to influence elections is just another company is to pretend the role of unfettered debate in a free society is outdated. Absent a court decision that places quasi-public forums under the First Amendment, we face a future that will splinter debate and discussion into a myriad of ideological-based platforms such that no one will be listening to anyone they do not already support. It will be a future where Twitter and Ohio State protect students from the words of Richard Spencer at the expense of teaching them how to challenge those words.
Copyright © 2017. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity. Follow me on Twitter!
Safety or Liberty? The Constitution Says We Can Have Both
Certain things used to be more, well, self-evident. A great many of us didn’t necessarily like, but understood, the First Amendment protected some speech we strongly disagreed with, or some speech that even made us afraid. We accepted there was an often uncomfortable duty to protect the right to speech irrespective of its content. We understood if we allowed government and institutions to block one person’s speech, even someone with terrible ideas, they could block others. Right up to when they came for us.
Then a collective mental breakdown took place in November 2016, and an almost organic sense that overnight America set itself on the path to fascism became the justification for the weakening of the First Amendment. Free speech is now seen by many as a liability, an enabling tool for anyone one might label a “nazi.” Some 69% of American college students believe hate speech (“Using language on campus that is intentionally offensive to certain groups”) should be banned by the government. It is an increasingly common point of view that taking away someone’s right to speak, a tool of fascism, somehow protects against the encroach of fascism.
And so welcome to The Ohio State University, which has refused to allow white supremacist Richard Spencer to speak on campus November 15.
The attorney representing Ohio State said Spencer would pose a “substantial risk to public safety, as well as material and substantial disruption to the work and discipline of the University.” Ohio State was no doubt also thinking of the $600,000 the University of Florida claimed it cost to provide security for Spencer’s recent appearance there. The Florida response included hundreds of police officers from five jurisdictions, as well as SWAT teams and snipers.
Both Ohio State and Penn State (also denying Spencer the chance to speak) are being sued for violating the First Amendment. Without explanation, nearby University of Cincinnati will allow Spencer to speak.
The law does not appear to be on Ohio State’s side. Blocking a speaker to protect public safety is an absolute last resort, and some risk to safety is part of the cost of the unfettered speech a democracy needs to thrive. Freedom, it seems, really is not free. The security costs are in fact to protect the First Amendment in broad practice, not simply one man in the specific.
The security problems Ohio State cites are not created by the speaker; they are created by the mob expected to oppose the speaker and on the assumption Spencer’s supporters will fight back. A historian lecturing across campus from Spencer on Babylonian art needs no police presence. Allowing the mob to have the final word on who speaks can in fact help create mobs where none otherwise exist. Placing a dollar test on free speech means it is only available to those who can afford it.
These questions are not new. Public safety has been long (mis)-used to silence. The town of Urbana, Illinois arrested someone burning an American flag (an act long-held to be a form of protected speech) claiming he was in danger from bystanders. Similar thinking has been used to deny permits for civil rights marches, with law enforcement saying they could not protect the protestors. Both sides in the abortion debate have used this argument as well outside clinics.
While institutions do have an obligation to public safety, that obligation must be balanced against the public’s greater right to engage with free speech. The answer is rarely to ban speech outright simply to maintain order. One landmark case from 2015 provides some of the clearest guidance yet:
“When a peaceful speaker, whose message is constitutionally protected, is confronted by a hostile crowd, the state may not silence the speaker as an expedient alternative to containing or snuffing out the lawless behavior of the rioting individuals. Nor can an officer sit idly on the sidelines — watching as the crowd imposes, through violence, a tyrannical majoritarian rule — only later to claim that the speaker’s removal was necessary for his or her own protection. Uncontrolled official suppression of the privilege [of free speech] cannot be made a substitute for the duty to maintain order in connection with the exercise of that right.”
The case involved a group called the Bible Believers who used crude langauge (“Turn or Burn”) at an LGBTQ gathering. The judges continued in their opinion allowing the Bible Believers to speak:
“We do not presume to dictate to law enforcement precisely how it should maintain the public order. But in this case, there were a number of easily identifiable measures that could have been taken short of removing the speaker: e.g., increasing police presence in the immediate vicinity, as was requested; erecting a barricade for free speech, as was requested; arresting or threatening to arrest more of the law breakers, as was also requested. We simply cannot accept Defendants’ position that they were compelled to abridge constitutional rights for the sake of public safety, when at the same time the lawless adolescents who caused the risk with their assaultive behavior were left unmolested.”
The belief law enforcement, or any institution, can turn first to shutting down speech that requires physical protection, has failed other courts’ tests in cases are diverse as Occupy and where a Christian group brought a pig’s head to a Muslim Arts festival.
I spent four years as an undergrad at Ohio State, and saw first-hand how the university can protect the free speech rights of a diverse group of speakers. A former member of the Black Panther party spoke in favor of racial violence. My time on campus was an era of fights for LGBTQ and other rights, and I saw massive police turnouts to protect gays marching across campus, and for a women’s “Take Back the Night” march through rough neighborhoods. Iranian students massed for anti-American demonstrations at a time when U.S. diplomats were being held hostage in Tehran. Meanwhile, Ohio State every other Saturday in the fall deploys a massive security presence for home football games, where the crowd rises above 100,000, multiples past who might show up to protest Spencer. Events likely to cause hardship to passersby are well-advertised, and students know to avoid them if they wish. Such events, past and current, clearly created the same “material and substantial disruption to the work and discipline of the University” that Ohio State fears Spencer will bring but were allowed anyway.
And Ohio State knows things worked out smoothly last fall, in fact just days before the election, when the school welcomed white supremacist Milo Yiannopoulos to campus.
Ohio State can do it, they just want to be able to pick and choose when they do it. And that is wrong.
An institution cannot cite avoiding public disruption as the initial or sole reason to restrict speech. The problems of having Richard Spencer, or anyone, speak on campus are outweighed by the obligation to protect free speech. Getting rid of the speaker is expedient but unconstitutional. Maintenance of the peace should not be achieved at the expense of the free speech. It’s pretty much self-evident.
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