• Assange Extradition Raises Questions

    June 12, 2024 // 7 Comments »

    A British court ruled Wikileaks founder Julian Assange can appeal his extradition to the U.S. How Assange’s case plays out may change both the way Espionage Act cases are defended and the deeper relationship among the Act, the 1A, and a free press.

    The U.S. charged Assange multiple times under the 1917 Espionage Act for an alleged conspiracy to take possession of and publish national defense information. Had the British court ruled in the U.S.’ favor, Assange would have exhausted all legal avenues in the UK. Instead, he can now fight the extradition to the U.S. from the relative safety of Britain.

    The allegations stem from 2010 when WikiLeaks released half a million classified documents focused on Iraq and Afghanistan that were leaked to the site by Chelsea Manning, an Army intel analyst. Included in the leak was video from Iraq showing American helicopters gunning down Iraqi civilians, later dramatized by the film Incident in New Baghdad. Assange’s legal team argues the case is a politically motivated form of state retaliation for embarrassing the United States.

    Following the charges by the U.S. government, Assange was granted asylum for seven years in the Ecuadorian embassy in London. Made to leave, Assange was then arrested by British authorities for skipping bail, and has spent the last five years in a dank British prison fighting extradition to the United States, His spouse calls it “punishment by process.”

    In February, Assange’s lawyers submitted grounds for a possible appeal. The High Court in response directed the U.S. government provide assurances: a) that Assange would not face the death penalty; b) that he would be treated no differently than a U.S. citizen; and c) that he would be protected under the First Amendment. The U.S. government provided such assurances in a letter. The British court was unconvinced, and will allow Assange to appeal the extradition request.

    Of the three conditions, the key issue is whether or not Julian Assange can raise an effective First Amendment defense against the Espionage Act. Could Assange claim, for example, that his right to publish the leaked materials was protected as a publisher and journalist under the 1A in the public interest?

    The Justice Department previously told a British court the First Amendment doesn’t apply to anyone “in relation to publication of illegally obtained national defense information giving the names of innocent sources to their grave and imminent risk of harm.” Use of a 1A public interest defense by Chelsea Manning was blocked and her attempts to speak to the American people directly were stymied by seeing her entire trial classified.

    “The short answer is that being able to ‘raise’ a defense is different than being able to ‘rely’ on one,” said former Assange attorney Jesselyn Radack, who heads the Whistleblower and Source Protection Program (WHISPeR, at Expose Facts, speaking with TAC. “In Espionage Act cases, the government has literally done motions to preclude the use of the words ‘First Amendment.’ I can easily see that happening here, as well as motions to preclude 1A related words like ‘journalist’ and ‘publisher.’ Assange can raise the First Amendment. He can raise a herd of goats if he wants. The better question is whether Assange would be allowed a 1A defense.”

    Under such circumstances any British court willing to accept a USG assurance Assange would have First Amendment rights in any practical sense is being played as a fool.

    But the Assange case begs a bigger question the British court might ask if it was concerned about fairness to Assange: why is it only him, and not outlets like the New York Times, which also published leaked material, on trial? Why not also the Guardian, the Washington Post, NBC News?

    Under the Espionage Act, Assange would be prohibited from offering a 1A-based 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, and possession say with the intent to hand over secrets to Russian intelligence. Assange, as with the others prosecuted under the Espionage Act, would be found guilty and simultaneously be denied the chance to defend himself based on a free speech defense.

    Assange poses a dilemma for the United States in its ongoing muscle-tussle in balancing the power of the government to protect classified information, the guarantee of a free press in the First Amendment, and the broader concept of the need for an informed populace to challenge their government and make this democracy work in practice.

    At what point does the need for the people to know something outweigh any laws allowing the government to keep it from view? If punishment appears necessary, should the leaker be punished, should the journalist who publishes be punished, or should neither, or 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, and restraint of traditional journalism.

    A complex history precedes Assange. In 1971 Daniel Ellsberg leaked the classified Pentagon Papers to the New York Times. The risks to the 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.

    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 however was charged under the Espionage Act. His case was ultimately 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.

    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 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 delicate dance around the 500 pound gorilla loose in the halls of democracy. The government aggressively prosecuted whistleblowers under the Espionage Act while choosing not to prosecute journalists for publishing what the whistleblowers hand over to them. Assange’s case stands as an outlier.

    Did Assange commit journalism? He wrote nothing alongside documents on Wikileaks, did no curating or culling, and redacted little information. Publishing in his case consisted simply uploading what had 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 — clicking Upload isn’t publishing and Assange isn’t a journalist they could say. The simplest interpretation of the Espionage Act, that Assange willfully transmitted information relating to the national defense without authorization, would then apply. Guilty, the same as almost all of the leakers and other canaries in the D.C. coal mine.

    Yet like the Times, Wikileaks sidestepped the restraints of traditional journalism to bring with immediacy the raw material of history to the people. That is the root of an informed public, through a set of tools never before available until the Internet and Julian Assange created them.

    The British court needs to carefully weigh any faux U.S. promises of 1A rights for Assange, and ask itself instead: is he being singled out for punishment, criminalizing journalism? President Joe Biden is already considering an Australian government request to drop Julian Assange’s charges. The British court should stay the extradition and ultimately release Assange for doing nothing but what the New York Times and others have done before him.

     

     

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    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

    Burn the Witches of Gaza

    June 3, 2024 // 6 Comments »

    My conundrum begins with the base concept that there is no such thing as hate speech according to the First Amendment. I believe something very different than the encampment protestors at Columbia. But I believe in defending their right to protest legally just as much. Makes for some uncomfortable times, but it’s the thought that counts.

    There are no laws against “hate speech.” Some people have developed an alternate understanding of free speech, with students in particular believing “offensive” speech should not be protected, particularly when the offense is directed at groups defined by race, religion, ethnicity, gender or sexual orientation. But the 1A says a speaker can call people names, and insult them by their religion. What many people think and say is hateful. It is in fact carefully thought out to inspire hate, to promote hate, to appeal to crude and base instincts. Indeed, that is the point. Free speech means just that, with any limited restrictions content-neutral. So there’s nothing in the law per se that prevents people from holding and/or shouting anti-Semitic views.

    BONUS: Much of what follows applies to Donald Trump’s own statements to the mob on January 6. His so-called inflammatory statements that morning are protected by much of the same law as the Gaza encampment people. It should make a college age ACLU donor proud to know her $25 contribution with Mom’s credit card helps the Gaza encampment people, Israel supporters, and Trump.

    But what about when that anti-Semitism extends to calls to violence, horrible stuff like signs asking for counter-protesters to become Hamas’ next victims? Brandenburg v. Ohio precludes 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 that their speech will result in the use of violence or lawless action, and (3) the important one: imminent use of violence or lawless action is the likely result of the speech. A hostile reaction of a crowd does not transform protected speech into incitement. Listeners’ reaction to speech is thus not a content-neutral basis for regulation, or for taking an enforcement action against a speaker.

    A second type of speech that is categorically excluded from First Amendment protection and often erroneously labeled hate speech are “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.” No advocacy can constitute fighting words unless it 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 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 or sports.

    But what about anti-Semitic speech such as “From the river to the sea [wipe out the Jews]?” Isn’t this the equivalent of that bit about shouting fire in a crowded theatre?

    The Fire! line comes from the Supreme Court decision in Schenck v. United States and is often cited as justification for limiting free speech. Justice Oliver Wendell Holmes said “the most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre 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 false 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, a “clear and present danger.” This interpretation of the First Amendment has been adjudicated to impose a high barrier to restrictions on what can be blocked or banned, and over the years has allowed flags to be burned in front of veterans and Nazis to march among Holocaust survivors, and yeah, the “river to the sea” thing. None of this extends to trashing a building or blocking a public highway.

    Schenck was what jurists call bad law, in that it sought to use the Espionage Act against a Socialist pamphleteer, to stop free speech, not protect it (in other words, the pamphleteer was determined to be a clear and present danger in wartime.) The case was eventually overturned. The Supreme Court has set a very high bar against restricting speech based on the idea that what is being said leading to violence.

    But colleges and universities are not the government. Many are private institutions like X and Facebook that are not subject to the 1A. So shouldn’t they have the right to censor their students, the way X can censor tweets and Facebook block users?

    Academic administrators like to rely on the idea of “time, place, and manner” in their restrictions on speech. But public funding invokes the First Amendment for schools, though obviously if a school exists that accepts zero public dollars that’s another story. The legal argument extending the First Amendment to institutions accepting Federal funding is Rosenberger v. University of Virginia, where the Supreme Court held that the University could not fund all student publications except those addressing religious views because such a policy violated the institution’s constitutional obligation not to discriminate against particular viewpoints. Universities like Columbia, which accept pubic funds, are avoiding the 1A by claiming their protesting students are trespassing, or violating school Codes of Ethics that specify time, place, and manner of protests. Whether the latter would stand up in court is an open question.

    There is no legal or other justification for banning speech based on who it may offend or threaten, in fact, quite the opposite. Justice Oliver Wendell Holmes declared unpopular ideas should have their opportunity to compete in the “marketplace of ideas.” Free speech is not an end, it is a means, in a democracy. Even in the weeks before finals. It is messy as hell, and it is our essential defense against fascism, whether from the left or the right.

     

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    Posted in Democracy, Post-Constitution America

    Social Media vs. Conservative Thought; Who is a Publisher?

    March 14, 2024 // 12 Comments »

    The Supreme Court heard oral arguments in late February on the fate of conservative thought in mainstream social media. It doesn’t look good for our side.

    The Court expressed skepticism about Florida and Texas laws (Moody v. NetChoice, NetChoice v. Paxton) enacted in response to social media platforms censoring conservative views after the January 6 Capitol riot. The state laws restrict social media companies’ choices to cancel user-generated content and require individualized explanations for editorial choices. Media trade groups challenged the laws, with the 11th Circuit blocking Florida’s enforcement while the U.S. Court of Appeals for the 5th Circuit upheld the Texas law. The Texas law is not currently in effect, however, because in 2022 the Supreme Court barred the state from implementing it with the challenge ongoing.

    During the oral arguments, the Justices suggested the laws may violate the First Amendment by infringing on companies’ editorial decisions.

    The deeper questions are whether or not social media are publishers or conveyers (common carriers), and whether or not they are bound by the First Amendment not to censor thought. The first issue tries to draw out the question of whether say Facebook (Google, et al, we’ll use “Facebook” as a proxy) are publishers in the same sense The American Conservative magazine and web site are. A publisher by definition has a First Amendment right to select which authors to include/exclude and what topics to write about. It is literally what a publisher does. A conveyance is closer to the phone company; they provide the means of communication fully independent of what is being communicated. The phone company, for example, could care less whether you are talking to mom about Aunt Sally’s apple pie recipe or organizing to burn the flag to protest an over-emphasis on mom and apple pie.

    More issues to resolve: the First Amendment prevents government from suppressing speech and has never been applied to private companies however large and dominant in the marketplace, and Section 230 of the Communications Decency Act, which says Facebook and others are not publishers (technically, the Act shields tech companies from liability for content published by others, i.e., Facebook is not liable for crazy postings.)

    Nonetheless, Florida and Texas passed laws that prohibited social media from editorially eliminating (conservative) thought. For example, the Florida law bars social media platforms from banning candidates for political office, as well as from limiting the exposure of those candidates’ posts. The Texas law prohibits companies from removing content based on users’ viewpoints. The laws also would have forced the platforms to explain each decision to delete, shadow ban or otherwise block a specific example of thought. The social media giants claim such regulation violates their First Amendment rights. They claim the Florida and Texas laws are unconstitutional if they apply at all, independent of who is or is not a “publisher.” The states maintain their laws do not “implicate the First Amendment at all, because they simply require social media platforms to host speech [a conveyance], which is not itself speech but instead conduct that states can regulate to protect the public. The business model for these platforms, the states say, hinges on having billions of other people post their speech on the platforms – something very different from, say, a newspaper that creates its own content and publishes it.”

    Justice Elena Kagan was one of several justices to question the constitutionality of the Florida and Texas laws, asking “Isn’t this a classic First Amendment violation?” [of Facebook’s rights] when the state is preventing the platforms from making their own editorial judgments. Justice Brett Kavanaugh also appeared unconvinced. He noted that the First Amendment protected against the suppression of speech “by the government” (same for Chief Justice John Roberts) not private companies and that the Supreme Court had a history of cases “which emphasize editorial control [such as Facebook’s] as being fundamentally protected by the First Amendment.” Justice Amy Coney Barrett said “it all turns on” whether the social media platforms are exercising “editorial control,” acting as a publisher, when they remove or deprioritize content. Justices also voiced concern the Florida law was quite broad, potentially applying not only to large social media platforms but also to other sites like Gmail, Uber, and Etsy. Texas law on the other hand specifically excludes standard web sites and tools such as Gmail.

    The justices pressed for a discussion of the interaction between the Texas law and Section 230 of the Communications Decency Act. Justice Neil Gorsuch stated there is a tension between the idea that a tech company can’t be held liable for its users’ speech and the idea that moderating that content is the tech company’s speech. Is it speech for purposes of the First Amendment, he asked, but not for purposes of Section 230? “Just as Florida may not tell the New York Times what opinion pieces to publish or Fox News what interviews to air, it may not tell Facebook or YouTube what content to disseminate,” the tech companies emphasize. Is content moderation just a euphemism for censorship? Justice Samuel Alito pressed tech companies to define the term “content moderation.” “If the government’s doing it, then content moderation might be a euphemism for censorship,” said a company representative. “If a private party is doing it, content moderation is a euphemism for editorial discretion.”

    The Biden administration filed a “friend of the court” brief against Florida and Texas supporting the tech groups.

    A decision by the Supreme Court is expected this summer. The Court is likely to prevent Florida and Texas from implementing laws restricting social media from removing conservative thought or controversial posts, even as they express concern about the power platforms wield over public discourse. That does not end the debate, however. The interplay between the First Amendment 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.

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    Posted in Democracy, Post-Constitution America

    Trump and the First Amendment, Both on Trial, Again

    December 9, 2023 // 4 Comments »

    No former president has challenged the limits of freedom of expression like Donald Trump. At times rude and always overbearing, Trump has tested the boundaries of what can be called political speech. Here’s the latest.

    The most significant challenge to the First Amendment came during Trump’s penalty phase trial for fraud, based on his over-valuing his properties in New York to obtain favorable loan rates. Trump muscle-tussled there with the presiding judge, Arthur Engoron and, oddly, his law clerk seated beside him on the bench. Already upset over what he felt was the clerk’s overextended involvement in the trial (to include whispering in the judge’s ear) Trump seized on a vanilla selfie photo of the clerk with Democratic Senator Charles Schumer to taunt her with the phrase “Schumer’s girlfriend” and insinuate as a Democrat the clerk was inherently biased against Trump.  In the way things work in 2023, these fifth grade-level slurs plus a few Trump complaints online about Engoron himself being biased morphed into “threats” somehow. Engoron went as far as to suggest Trump was sending attack messages to his MAGA army (“targeting”) and that lives were in danger.

    In retaliation Judge Engoron slapped a gag order on Trump, later extended to his attorneys as well. The order prohibited Trump from commenting on the trial, out loud, in the press, or on social media, and specifically said the law clerk was off-limits. Trump paid little attention to the order and was fined twice, for a total of $15,000, for violating it. Trump called Engoron an “extremely hostile” judge. His lawyers said there was evidence of “tangible and overwhelming” bias. Trump’s lawyers then filed a lawsuit against Engoron challenging his gag order as a violation of the First Amendment.

    Lawyers for Engoron argued he and his staff received hundreds of anti-Semitic calls and letters. They blamed Trump’s comments about Engoron and the clerk for amplifying his supporters’ anger toward them and said the clerk is “playing Whack-A-Mole now trying to block her phone number.” “It’s not that Mr. Trump has directly issued threats to the staff and Judge Engoron, it’s that what he’s said has led his constituents” to make threats, the lawyers argued, comparing the potential effect to the January 6 riot and a violent attack on Nancy Pelosi’s husband. “That is not political speech. That is threatening behavior and it should be stopped,” Engoron’s lawyers argued.

    The appeals forum which heard the case disagreed, particularly about the part saying what Trump was engaged in was not political speech. Judge David Friedman of the state’s intermediate appeals court issued a temporary stay suspending the Engoron gag order and allowing the former president to speak freely about court staff while the longer appeals process plays out. Friedman questioned “Engoron’s authority to police what Trump says outside the courtroom. He also disputed the trial judge’s contention that restricting the 2024 Republican front-runner’s speech was necessary or the right remedy to protect his staff’s safety.”

    Another gag attempt was also struck down last month, after the judge overseeing Trump’s Washington J6 case briefly paused a gag order she had imposed on him. Trump reacted to this three times in three days, calling Special Counsel Jack Smith “deranged.” Twice he weighed in about the deposition testimony of his former chief of staff, Mark Meadows, who could end up a witness at the trial. These moves prompted Smith’s team to ask the judge, Tanya Chutkan, to reinstate the gag order. She put the order back in place, though it has been frozen again as a federal appeals court considers whether Judge Chutkan properly imposed it in the first place. That temporary suspension left Trump free of all of the gag orders placed on him.

    Long term, a federal appeals court panel appeared poised to significantly narrow the gag order imposed against Donald Trump by the J6 judge Chutkan. The three-judge D.C. Circuit Court of Appeals panel raised concerns the order — which bars Trump from criticizing witnesses, prosecutors, and courthouse staff — created murky restrictions stifling the former president’s right to push back against his detractors, particularly in the heat of the campaign.

    What at first seems novel — it happened mostly on social media!– and soooooooooo Trump — the insults, the elementary school-quality teasing — was in fact at the core of what the First Amendment is all about. Political speech is among the most protected forms of speech, more so political speech critiquing the government. In fact not novel at all, Trump was engaged in the most basic form of expression designed to be protected by the First Amendment.

    Judge Engoron, standing in for King George here, played the role of evil government perfectly. He chose to use the power of government, the gag order, etc., to stop Trump (who claims the trial is political persecution in the first place) from criticizing the government, in the guise of his court, and then doubled-down by extending the order to Trump’s lawyers, and then triple-downed the whole mess saying the gag applied 24/7 to those named, all way beyond the limited point of a gag order (proper use is almost always to shield important information from a jury to not prejudice a case.) A gag order should enhance democracy by protecting the right to a trial by jury, not run rough shod over it silencing the political speech of someone on trial.

    The hardest thing sometimes to accept about the First Amendment is it often protects speech you don’t like made by people you don’t like, in this case Trump, who is presumed crude and guilty by some half of the electorate. This idea is captured in the quote”I disapprove of what you say, but I will defend to the death your right to say it,” often attributed to Voltaire, and apparently missing from both Judge Engoron’s and most undergraduates’ education. Those who bleat support for Israel/support for Palestine has no place on campus fall squarely into the same narrow box as Engoron, wanting to block speech which personally threatens them but does not rise to the level of threat established by the Supreme Court, or offends them, somehow believing the First Amendment does not protect “hate speech.” While speech might be offensive — or even feel threatening — to some people, to others “it is an expression of a political opinion, an unfiltered reaction to a recent event, or an attempt to rally support for a cause. The freedom to share provocative ideas and spark robust debate about political issues is essential to democracy, social justice, and progress.”

    That’s exactly what Trump is doing, criticizing his trials and their participants in real time via press conferences and especially social media, all protected by the 1A. Victory Trump, victory First Amendment.

     

     

     

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    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

    What the Hell is Trump Doing in Court?

    November 8, 2023 // 15 Comments »

    It was a busy day in court for Donald Trump.

    In Washington on October 25 Special Counsel Jack Smith asked the court to reinstate a temporary gag order, this time with jail as the penalty, after Donald Trump called former White House chief of staff Mark Meadows (and by extension former allies who have cut deals in his election interference case elsewhere in Georgia) a weakling and coward if he agreed to testify in exchange for immunity. Trump had been under a earlier gag order which barred him from disparaging prosecutors, court staff, and potential witnesses in a pattern that the court filing called “targeting.” The fear was that Trump was calling out those he wanted MAGA supporters to go after. Smith urged Judge Chutkan to “modify the defendant’s conditions of release by making compliance with the Order a condition.”

    On the same day, in response to his violation of a separate New York court gag order Judge Engoron ordered the former president to testify over an insult Trump threw at the judge’s law clerk. The judge found Trump guilty of violating his gag order and ordered Trump to pay a $10,000 fine on top of an earlier $5000. Trump stormed out of the courtroom, his somewhat bewildered Secret Service in tow. Trump technically remains free only on bail.

    Pundits asked if Trump is actually trying to antagonize judges and lose both cases. Or could there be some other reason for Trump’s on-the-face-of-it non-self serving actions?

    — Trump may be breaking up under the strain. One hates to even go near the “Trump is insane” 25th Amendment crowd, who think they can judge someone’s mental state long distance but one has to allow for the possibility that the stress of having his very existence and ego challenged (the NY trial after all concerns Trump’s actual net worth and status as a real estate kingpin) by small-time mooks like a judge and his clerk may have gotten to Trump. We’re seeing it play out as he strives to control his temper (hence the storming out of the courtroom.) If this is even in part an explanation for Trump’s counter-productive behavior in court it is a dangerous one, adding too much unpredictability into already tense situations. Perhaps Trump simply can’t stop himself. He’s “spent a lifetime attacking those who don’t accommodate him,” and he’s not able to quit now.

    — Trump could easily believe none of this matters, certain he will be elected president in November 2024 and be in a position to pardon himself and any others convicted along the way. In Trump’s mind this is all or nothing and the little details, such as the outcome of a specific trial, matter not.

    — It’s all about the appeal, part I. Trump knows he will lose the case in front of Judge Engoron, who has already substantively ruled Trump guilty and is holding the current trial sessions primarily to establish the penalty. By egging the judge on to make statements such as finding a Trump response he did not like a “lie,” ruling “as a trier of fact, I find that the witness is not credible… hollow and untrue” Trump is setting up an appeal claiming the judge is biased against him (otherwise, you generally as a defendant do not do things to encourage the judge to throw the book at you.) It is unclear if this is productive or even needed; there is already plenty to work with in the guise of former Trump attorney Michael Cohen, a star prosecution witness who is also a sworn enemy of Trump, a convicted felon, and serial liar singing for his supper. Cohen’s testimony is weak, claiming the former president never directly asked him to over-value Trump Organization assets, but instead implied somehow mind-reading style that he do so.

    — It’s all about the appeal, part II. The judges’ gag orders against Trump rub rough against the First Amendment, which will form the basis of appeals independent of the trial content themselves. The ACLU, no friend of Donald Trump, argues the gag order imposed by U.S. District Judge Tanya Chutkan in Washington barring Trump from making public statements about special counsel Jack Smith, the defense counsel or members of the court violates the Constitution’s 1A. “No modern-day president did more damage to civil liberties and civil rights than President Trump,” the group wrote in a press release. “But if we allow his free speech rights to be abridged, we know that other unpopular voices — even ones we agree with — will also be silenced.”

    Specifically, the ACLU argued Chutkan’s order is too vague, too broad, and not sufficiently justified. Trump made many “patently false” statements which have “caused great harm to countless individuals,” the group wrote. But he nevertheless “retains a First Amendment right to speak, and the rest of us retain a right to hear what he has to say.” Prior restraint on Trump’s speech must be “precisely defined and narrowly tailored,” the ACLU wrote, arguing that Chutkan’s order “fails that test.” For example, the prohibition on making public statements that “target” certain individuals is “unconstitutionally vague.” Trump “cannot possibly know what he is permitted to say, and what he is not.”

    — It’s all about the appeal, part III. The substance of an appeal is irrelevant, as long as the appeal can be dragged out past the November 2024 election. It is easy to imagine a “throw it all against the wall and see what sticks” approach to buy time. An appeals court could just as easily applaud the two judges for showing restraint when they might have thrown Trump in jail for contempt. No matter, as long as it all chews up the space until the election.

    Trump looks like a man who simply does not care what happens with the current trials, or any of the upcoming others. He is both convinced the system is fully unfair and equally aware that the more trouble he seems to get into the faster his poll numbers rise. Each courtroom defeat, small and procedural or a full-on guilty verdict, simply fans the flames for rally crowds. The cash penalties levied by Judges Engoron and Chutkan for violating gag orders have little meaning.

    But Trump actually being jailed for violating a gag order would grant him official martyr status. Within a week of his release Trump will be comparing himself to the jailed Martin Luther King and Nelson Mandela, freedom fighters all. He could then literally test an earlier boast by shooting someone in the middle of Fifth Avenue and not lose any supporters, or perhaps with MAGA cheers in the background simply flipping off one of the judges who dare seek to decide his fate.

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    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

    NYT v. Sullivan Unfortunately Lives to Fight Another Day

    October 27, 2023 // 8 Comments »

    Justice Clarence Thomas said it “comes at a heavy cost, allowing media organizations and interest groups ‘to cast false aspersions on public figures with near impunity.’” It is New York Times v. Sullivan, America’s defining defamation law and it unfortunately lives to fight another day. Or mess one up.

    Thomas, along with others on the Supreme Court, declined earlier this month to revisit the landmark First Amendment decision in New York Times v. Sullivan, rebuffing a request (the case involved a man falsely accused in the press of being a felon) to take another look at decades-old precedent that created a high bar for public figures to claim defamation in civil suits. Since 1964 the media relied on the case to fend off costly defamation lawsuits brought by public figures. The ruling established the requirement that public figures show “actual malice” by the press before they can succeed in a libel dispute.

    Defamation is untruths commonly referred to as libel if in print. Five standards have to be met when the defamation takes places between the media and a public figure: 1) the defamatory words have been published; 2) The person being defamed was identified by the statements; 3) The remarks had a negative impact on the person’s reputation; 4) The named Defendant wrote the defamatory remarks; 5) The published information is demonstrably false or was published with a reckless disregard for the truth. That means it was published without investigating whether it was accurate.

    New York Times v. Sullivan held the First Amendment protects media even when they publish false statements, as long as they did not act with actual malice. What happened in the case was civil rights leaders had run a full-page fund raising ad in the Times, describing “an unprecedented wave of terror” by the police against peaceful demonstrators in Montgomery, Alabama. Not all the bad things they accused the cops of doing were true, and made the police look worse then they were. So L.B. Sullivan, in charge of the cops in Montgomery, sued the New York Times for libel, claiming they printed something they knew was false to harm his reputation. After losing in a lower court, the Times appealed to the Supreme Court and won.

    The Times argued if a newspaper had to check the accuracy of every criticism of every public official, a free press would be severely limited, and that the 1A required the margin of error to fall on the side of the media in the cases of public officials. In short, mistakes were going to be made even with good intentions by the media. The Court created a new standard for libel of a public figure, “actual malice” defined in short as having the knowledge that something was false or published with “reckless disregard” for truth. Justice William Brennan asserted America’s “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.” Free and open debate about the conduct of public officials, the Court reasoned, was more important than occasional, factual errors that might damage officials’ reputations. The standards laid out in Sullivan are why The New York Times has not lost a libel case in America ever since.

    In the recent case the Court just refused to hear (Thomas still wants to review Sullivan but said the current case is not the right vehicle for that), Don Blankenship v. NBC Universal, local media labeled Blankenship a felon, causing him to lose a run for the West Virginia Senate, he maintains. The truth is that Blankenship committed a misdemeanor and was sentenced to one day less than if the case had involved a felony charge. In arguing for Blankenship to a lower court, his attorneys wrote “The actual malice standard poses a clear and present danger to our democracy. New York Times v. Sullivan and its progeny grant the press a license to publish defamatory falsehoods that misinform voters, manipulate elections, intensify polarization, and incite unrest.”

    Attorneys for the media outlets successfully urged the justices not to take up the case, arguing the reporting mistakes were honest ones. “There is good reason why the actual malice standard of New York Times has been embraced for so long and so often,” the media organizations told the justices. “At its essence, the standard protects ‘erroneous statements honestly made.’ While it permits recovery for falsehoods uttered with knowledge of falsity or with reckless disregard for the truth, it provides the ‘breathing space’ required for ‘free debate.’ A free people engaged in self-government deserves no less.”

    Those are the standard Sullivan arguments. It’s just that Justice Thomas does not agree. The Sullivan ruling and ones elaborating on it, he wrote, “were policy-driven decisions masquerading as constitutional law” with “no relation to the text, history or structure of the Constitution… the actual-malice standard comes at a heavy cost.” His colleague Justice Neil Gorsuch, in an earlier statement, wrote “What started in 1964 with a decision to tolerate the occasional falsehood to ensure robust reporting by a comparative handful of print and broadcast outlets has evolved into an ironclad subsidy for the publication of falsehoods by means and on a scale previously unimaginable.”

    It may indeed be time for a change. Sullivan was written for a different media world, one dominated by a handful of huge companies like the New York Times which could be held to high standards. They were assumed to be honorable in their work, and if a mistake was made it was most likely an accident. Reporting was just that, news, reported out to the people are accurately as possible. Not so in 2023. The media is a splintered mess, with teenage YouTube influencers reaching vast audiences, challenging the giants of yesterday to a share of the market. These micro-outlets have no fact checking staff, are typically run by people with no journalistic training and maybe not even a high school diploma, and are gloriously, joyfully not trying to be fair and accurate. They traffic instead in gossip and innuendo, smearing together fact and fiction because that attracts eyeballs to their work, their only standard.

    This sort of competition affected the mainstream media, which became more and more partisan and less concerned about the truth if a story brought in readers. One need only look at the embarrassing bits of what passed for journalism as major should-know-better outlets like the Times and the Washington Post reported falsehood after falsehood throughout Russiagate and indeed the entire Trump administration. Given the freedom to make mistakes in the name of the First Amendment, these organs instead took that as license to play at the line of reckless disregard for the truth. How else could a Pulitzer prize be awarded in part of placing Trump fixer Michael Cohen in Prague to meet with Russian spies, or claim a Trump Organization email server was instead a secret communications portal to the Kremlin via Alfa Bank? How could the standard in Sullivan meant to promote robust debate end up protecting a serious column in the Washington Post headlined “Here are 18 reasons Trump Could Be a Russian Asset” without the retort of a defamation suit available?

    Sullivan was meant to protect the underlying value of debate even in the face of product of carelessness and substandard journalistic methods. Its era has passed, wasted by the modern media on confections like YouTube and frauds like Russiagate. The Times of 1964 earned the right to make mistakes in service to a greater good; the Times of 2023 would embarrass its earlier self in how it has exploited such a gift.

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    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

    Court Moves to End Govt Censorship by Proxy in Social Media

    September 30, 2023 // 9 Comments »

    If you think your social media is being edited and blocked to press a certain point of view, it is. If you think the government is trying to get you to think a certain way, it is. There’s no more hiding this behind dummy allegations of conspiracy theories.

    The U.S. Court of Appeals for the 5th Circuit ruled the Biden White House and the FBI violated the First Amendment by improperly driving social media companies’ decisions to remove or suppress posts on Covid and election topics. The ruling is a step toward bringing social media under the umbrella of the First Amendment and ending proxy censorship, and sets up a major Supreme Court battle over the censoring free speech as demanded by the Biden administration.

    Specifically, the appeals judges wrote the “White House, the CDC, the FBI, and a few other agencies urged the platforms to remove disfavored content and accounts from their sites. And, the platforms seemingly complied. They gave the officials access to an expedited reporting system, downgraded or removed flagged posts, and deplatformed users. The platforms also changed their internal policies to capture more flagged content and sent steady reports on their moderation activities to the officials. That went on through the COVID-19 pandemic, the 2022 congressional election, and continues to this day.”

    The judges wrote the White House “coerced the platforms to make their moderation decisions by way of intimidating messages and threats of adverse consequences.” They also found the White House “significantly encouraged the platforms’ decisions by commandeering their decision-making processes, all in violation of the First Amendment.” The decision found although the platforms stifled the speech, it was government officials who “coerced, threatened, and pressured social-media platforms to censor” through private communications and legal threats,” i.e., censorship by proxy.

    The appeals court decision includes emails from White House officials showing pressure on the social media companies to address “misinformation.” Things reached a boiling point in July 2021 when President Biden accused Facebook of “killing people.”

    In one email, a White House official told a platform to take a post down “ASAP,” and instructed it to “keep an eye out for tweets that fall in this same genre.” In another, an official told a platform to “remove [an] account immediately”—he could not “stress the degree to which this needs to be resolved immediately.” The decision notes “White House officials did not only flag content; they started monitoring the platforms’ moderation activities, too. In that vein, the officials asked for and received frequent updates from the platforms. Those updates revealed, however, that the platforms’ policies were not clear-cut and did not always lead to content being demoted. So, the White House pressed the platforms. For example, one official demanded more details on Facebook’s internal policies at least twelve times, including to ask what was being done to curtail ‘dubious’ or ‘sensational’ content, what ‘interventions’ were being taken, what ‘measurable impact’ the platforms’ moderation policies had, ‘how much content [was] being demoted,’ and what ‘misinformation’ was not being downgraded.”

    The platforms did not fight back. As the judges wrote, from the beginning, the platforms cooperated with the White House. One company made an employee “available on a regular basis,” and another gave the officials access to special tools like a “Partner Support Portal” to “ensure” their requests were “prioritized automatically.”

    Once White House officials began to demand more from the platforms, they stepped-up their efforts to appease officials instead of pushing back. When there was confusion, the platforms would call to “clear up” any “misunderstanding[s]” and provide data detailing their moderation activities. They met with officials, “partnered” with them, and assured them that they were actively trying to “remove the most harmful COVID-19 misleading information.” When Facebook did not take a [unnamed] prominent pundit’s “popular post” down, a White House official asked what good is the reporting system, and signed off with “last time we did this dance, it ended in an insurrection.”

    In another example, one official emailed Facebook a document recommending changes to the platform’s internal policies, including to its deplatforming and downgrading systems. In another example, one platform sent out a post-meeting list of “commitments” including a policy change “focused on reducing the virality” of anti-vaccine content even when it “does not contain actionable misinformation.” On another occasion, one platform listed “policy updates… regarding repeat misinformation” after meeting with the Surgeon General’s office and signed off “[w]e think there’s considerably more we can do in partnership with you and your teams to drive behavior.” The platforms obliged the censorship requests in every instance cited and were “keen to amplify any messaging you want us to project.” At times, the judges wrote, their responses “bordered on capitulation.”

    In an escalation, the platforms began taking down content and deplatforming users more broadly. For example, “Facebook started removing information posted by the ‘disinfo dozen’—a group of influencers identified as problematic by the White House, despite earlier representations that those users were not in violation of their policies. In general, the platforms had pushed back against deplatforming users in the past, but that changed. Facebook also made other pages that ‘had not yet met their removal thresholds more difficult to find on our platform,’ and promised to send updates and take more action. A month later, members of the disinfo dozen were deplatformed across several sites.” Specifically mentioned as a victim of these actions was Gateway Pundit.

    The judges also focused on the FBI interaction with social media platforms in the run-up to the 2020 elections, which included regular meetings with the tech companies. The judges wrote that the FBI’s activities were “not limited to purely foreign threats,” citing instances where the law enforcement agency targeted posts originating inside the United States. The judges said in their rulings the platforms changed their policies based on the FBI briefings, citing updates to their terms of service about handling of hacked materials, following warnings of state-sponsored “hack and dump” operations. The latter was used as justification initially by Twitter (now X) in blacklisting articles about the Hunter Biden laptop, suggesting its contents had been obtained via hacking and/or the contents were created as disinformation by the Russians. Neither was true but both were used, via the FBI, to step roughly on Americans’ First Amendment rights and influence the 2020 presidential election.

    The current appeals court decision follows a July injunction in response to a lawsuit brought by the attorneys general in Louisiana and Missouri. They alleged government officials went too far in their efforts to demand social media companies address posts that they worried could contribute to vaccine hesitancy during the pandemic. The state attorneys general accused the Biden administration of enabling a “sprawling federal ‘Censorship Enterprise’” to encourage tech giants to remove politically unfavorable viewpoints and speakers. In their filings, the attorneys general alleged the actions amount to “the most egregious violations of the First Amendment in the history of the United States of America.” The judge wrote the attorneys general “have produced evidence of a massive effort by Defendants, from the White House to federal agencies, to suppress speech based on its content.” The injunction starts by non-ironically citing the famous quote “I may disapprove of what you say, but I would defend to the death your right to say it.”

    The answer to all this from the July injunction was to create a wall between social media and state. This affected a wide range of government departments and agencies, and imposed ten specific prohibitions on government officials. The more recent appeals court decision threw out nine of those and modified the 10th to rejoin the government from seeking to “coerce or significantly encourage social-media companies to remove, delete, suppress, or reduce, including through altering their algorithms, posted social-media content containing protected free speech.” That will likely be tested before the Supreme Court.

    During times when unbiased information was badly needed — on vaccines, for example — the government of the United States egregiously violated the First Amendment to pressure social media companies to amplify certain points of view and do away with others. This censorship at the request of the White House targeted both broad ideas (“anti-vax”) and individual American citizens. It shows how the administration conducted an end run on the First Amendment, using the social media companies as proxies. It was done by the Biden administration to politically drive the American people toward its point of view. Its goal was nothing short of shutting down the marketplace of ideas so necessary in a democracy.

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    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 Political Assassination of Donald Trump: Shots Fired

    September 22, 2023 // 14 Comments »

    Democrats remain terrified of Donald Trump and will continue to do their worst to keep him from the ballot, where he has beaten them before. Political assassination attempts stretch from the near-comical to the deadly serious.

    The most current attempt harkens back to one of the earlier ones. A handful of lawyers discovered the 14th Amendment, hidden away in plain sight inside the Constitution, actually was designed to drive Trump from the ballot. The Amendment, Article 3, states government officials who supported insurrection against the United States were not eligible for future office. Now despite that this was written to address the question of what to do with Confederate officials following the Civil War, modern lawyers have decided: a) Trump made a speech on January 6 as part of an insurrection and so b) his name cannot appear on any state ballot. Left undiscussed is who the hell are “they” to determine J6 was an actual insurrection on scale with the Civil War and not some naughty MAGA cosplay with absolutely zero chance of altering the election results, and the fact that Article 1 of the same Amendment mentions due process, of which the current legal thinking includes none.

    This all reminds of the early Trump days citing of the Constitution’s Emoluments Clause, basically saying a president could not accept gifts from foreign countries (full disclosure: one of the worst Emoluments violators was eighth President Martin Van Buren, no relation.) The thinking way back in 2016 was the Founders had this scenario in mind: Trump owns some foreign hotels. Foreign people stay there. Some of the foreigners were government officials. Some tiny portion of each stay went into Donald’s pocket. Shazam! He was guilty of accepting official foreign gifts and violating the Emoluments Clause.

    But that was all small change; the real money on getting rid of Trump before he was even sworn in, or handicapping his administration if he took office, was Russiagate. It was all the rage in 2016 and beyond — Trump colluded with the Russians because they had a tape of him with prostitutes doing Golden Showers. Or because he wanted to build a hotel in Moscow, one or the other. There was proof everywhere and Robert Mueller’s corpse was shocked back to life to investigate it all ahead of an impeachment-lynching party. In the end the whole thing was made up. A multi-year effort involving the three-letter agencies FBI, CIA, CNN, NBC, ABC, and CBS was based on tall tales from anonymous sources sifted into the zeitgeist by a former MI6 operative named Chris Steele. Oh, right, and Steele was paid entirely by the Clinton campaign.

    The next swing at the piñata came from some little scab of a Lieutenant Colonel on the National Security Council, and some punks at the State Department, known as Impeachment 1.0. Using a cutout “whistleblower,” the cabal alleged Trump temporarily withheld arms from the Ukraine (before it became our 51st state under Joe Biden) until Kiev investigated and turned over the dirt on the Biden family. It turned out Trump did indeed temporarily withhold arms from the Ukraine (before it became our 51st state under Joe Biden) hoping Kiev would investigate and turn over the dirt on the Biden family. This is known as “foreign policy” or an “investigation.” Somehow the impeachment hinged on one transcripted phone call by Trump, so the evidence was not even in question, just how stupid the interpretation could be. Nothing stuck and the process failed to remove Trump from office.

    After all that there was Impeachment 2.0 which had something to do with January 6, wasn’t finished until Trump had already left office, and did not matter because, significantly for the 14th Amendment crowd, Trump was not convicted of incitement or insurrection.

    The broader problem is short of simply shooting Trump in the head, the guy never seems to go down. Every effort, and there were many, failed to get him off the ballot in 2016, cripple his administration, or drive him from the White House. Trump lost to Joe Biden in 2020 and that should have ended the matter. Trump should have taken his seat on The View and all these efforts to depose him should have faded into political history. The specific problem is that Trump never stopped running for president, and now must finally be stopped. The plan this time is to use the judiciary to achieve what it looks like the ballot box cannot, literally locking Trump in jail in hopes that from behind bars he cannot become president. There are five current efforts.

    First up is Stormy Daniels again. Somehow a partisan prosecutor in a fully Democratic district managed to squeeze 34 felony counts out of this, centered on falsifying business records, which Trump is accused of doing to cover up the hush money payments to Daniels. Now leaving aside there is nothing illegal per se about “hush money,” (people receive payments all the time as part of nondisclosure agreements) this attempt to throw Trump in jail will rely on witnesses as pristine as Stormy herself, followed by stand-up guys like Michael Cohen. If the jury is at least close to fair when seated, the case has little chance of jailing Trump.

    Second in line is a civil defamation case financial judgement. Four months after a jury found that Donald Trump defamed advice columnist Jean Carroll, a judge ruled still more of the ex-president’s comments about her were libelous. The decision means an upcoming second trial will concern only how much more he has to pay her. No possibility of jail time.

    Next is the so-called Mar-a-Lago documents case. This centers on the former president endangering national security by mishandling classified documents after leaving office. Additionally, the case looks at how Trump obstructed FBI efforts to take back the documents. It will delve into the minutia of the classification system, and likely invoke the Supreme Court to decide how much leeway a former president has in declassifying documents. It is no small matter, legal-issue wise, as it affects not only Trump but every president to come (Joe Biden and Hilary Clinton also unlawfully had classified documents in their possession outside of the office but we don’t seem to care much about these cases.) Classification cases cases which don’t involve major espionage or spillage are usually settled by fines, as may be this one, unless the government can make a big deal about the obstruction part. A lot depends on proving Trump knew he was doing something wrong, mens rea, a tough ask with a fella like Trump who talks pretty. The matter is unlikely to result in jail time.

    The Georgia election interference case, like Impeachment 1.0, seems to hinge on a single phone call, in this instance an ambiguous request by Trump to an election official to find him some more votes. Ambiguous in the sense that one reading is Trump requesting some sort of recount, while another is he is demanding the official create votes by some nefarious means. Another case of a partisan Democratic prosecutor in a fully Democratic district showing how her predecessors once rigged trials by choosing all-white juries. The new feature here is the prosecutor has come up with not only 13 felony counts against Trump himself stemming from a single incident, but also charged 18 associates, including Rudy Giuliani (once America’s mayor, how fast the looks fade) with various crimes. The implication is one of those people will turn evidence on Trump to save their own skin. The problem is that the Georgia case did not have any successful interfering; Trump still lost the state. That means the whole thing is going to bog down in conspiracy accusations — boring — and fail to capture public attention. Trump’s lawyers are also actively seeking a change of venue to get the case to more neutral jury selection territory. If they succeed, the chances of success against Trump seem slim. A guilty conclusion with some sort of fine seems likely.

    The prosecution which has the greatest potential of shaping the next part of the Trump story is also likely to be the first major case heard, in March 2024, regarding Trump’s role in the events of January 6. At stake is not only a good portion of Trump’s political future, but also very serious questions about the First Amendment. What can someone legally say and do after losing an election? Of all the charges, incitement is not on the list, though it looks in part as if Trump is being held responsible for the actions of the mob. The charges focus again on conspiracy, though this time the stakes are very high, conspiracy to defraud the United States and its voters, practically a hanging offense. The J6 mob (and Trump) had no chance of overturning the 2020 election, so in some ways conspiracy is a thin thread to suspend the whole affair from. On the other hand, it may be easy to prove, especially if Mike Pence or another senior official turned evidence in their depositions and testified against Trump. The seriousness of the matter points towards jail time, as has been the case with all the other J6 defendants. It may not be the future of our democracy at stake, but it is certainly a good shot at the future of Donald Trump if the prosecution can wrap things up before the election.

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    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

    Disinformation, 1984-2023

    August 5, 2023 // 6 Comments »

    Orwell, again. 1984 was prescient on so many concepts that it seems it was written for the Biden era. Underlying it all is the concept of disinformation, the root of propaganda and mind control. So it is in 2023. Just ask FBI Director Chris Wray. Or Facebook.

    George Orwell’s novel explores the concept of disinformation and its role in controlling and manipulating society. Orwell presents a dystopian future where a totalitarian regime, led by the Party and its figurehead Big Brother, exerts complete control over its citizens’ lives, including their thinking. The Party employs a variety of techniques to disseminate disinformation and maintain its power. One of the most prominent examples is the concept of “Newspeak,” a language designed to restrict and manipulate thought by reducing the range of expressible ideas. Newspeak aims to replace words and concepts that could challenge or criticize the Party’s ideology, effectively controlling the way people think and communicate (unhomed, misspoke, LGBQTIAXYZ+, nati0nalist, terrorist.)

    Orwell also introduces the concept of doublethink, which refers to the ability to hold two contradictory beliefs simultaneously and accept them both as true. This psychological manipulation technique allows the Party to control the minds of its citizens and make them believe in false information or embrace contradictory ideas without questioning (masks which do not prevent disease transmission are still mandatory.) The Party in 1984 alters historical records and disseminates false information through the Ministry of Truth. This manipulation of historical events and facts aims to control the collective memory of the society in a post-truth era, ensuring that the Party’s version of reality remains unquestioned (war in Ukraine, Iraq, El Salvador, Vietnam, all to protect our freedom at home.)

    Through these portrayals, Orwell highlights the dangers of disinformation and its potential to distort truth, manipulate public opinion, and maintain oppressive systems of power. The novel serves as a warning about the importance of critical thinking, independent thought, and the preservation of objective truth in the face of disinformation and propaganda.

    Disinformation is bad. But replacing disinformation with censorship and/or replacement with other disinformation is worse. 1984 closed down the marketplace of ideas. So for 2023.

    In 2023 America the medium is social media and the Ministry of Truth is the Executive Branch, primarily the FBI. Topics the FBI at one point labeled disinformation and sought to censor in the name of protecting Americans from disinformation include but are not limited to the contents of Hunter Biden’s laptop, the Covid lab leak theory, the efficiency and value to society of masks, lockdowns, and vaccines, speech about election integrity and the 2020 presidential election, the security of voting by mail, even parody accounts mocking the president (about Finnegan Biden, Hunter Biden’s daughter.)

    When asked before Congress to define disinformation, FBI Director Christopher Wray could not do it, even though it is the basis for the FBI’s campaign to censor Americans. It’s a made up term with no fixed meaning. That gives it its power, like “terrorism” was used a decade or so earlier. Remember “domestic terrorism”? That stretched to cover everything from white power advocates to J6 marchers to BLM protestors to Moms for Liberty. It just can’t be all those things all the time but it can be all those things at different times, as needed. The term “hate speech” is another flexible tool of enforcement and is why efforts to codify banning hate speech under the First Amendment must be resisted so strongly. Same for QAnon. We’ve heard about QAnon for years now but still can’t figure out if it even exists. To read the MSM, you would think it is the most powerful and sinister thing one can imagine yet seems to be imaginary, another Cthulhu. Do they have an office, an email address, a lair somewhere?

    In simple words: the government is using social media companies as proxies to censor the contrary thoughts of Americans, all under the guise of correcting misinformation and in direct contrivance of the First Amendment.

    How bad does it get? As part of its 2023 investigation into the federal government’s role in censoring lawful speech on social media platforms, the House Committee on the Judiciary issued a subpoena to Meta, the parent company of Facebook and Instagram, and Alphabet, the parent of Google and YouTube. Documents obtained revealed the FBI, on behalf of a compromised Ukrainian intelligence service, requested and, in some cases, directed, the world’s largest social media platforms to censor Americans engaging in constitutionally protected speech online about the war in Ukraine.

    Another tool of thought control is the Foreign Intelligence Surveillance Act (FISA), which was supposed to be used to spy on foreigners but has been improperly used against thousands of Americans. Over 100,000 Americans were spied on in 2022, down from three million in 2021.

    Does it sound familiar? An amorphous threat is pounded into the heads of Americans (Communism and Red Scares, Covid, terrorism, disinformation) and in its name nearly anything is justified, including in the most recent battle for freedom, censorship. The wrapper is that it is all for our own protection (Biden himself accused social-media companies of “killing people,” the more modern version of the terrorism-era’s “blood on their hands”) with the government assuming the role of knowing what is right and correct for Americans to know. The target in name is always some Ruskie-type foreigner, but in reality morphs to be censorship of our citizens ourselves (stained as “pro-Putin.”) Yet Meta CEO Mark Zuckerberg admitted the government asked Facebook to suppress true information. He said during the Covid era the scientific establishment within the government asked “for a bunch of things to be censored that, in retrospect, ended up being more debatable or true.”

    Under President Joe Biden, the government has undertaken “the most massive attack against free speech in United States history.” That was the extraordinary conclusion reached by a federal judge in Missouri v. Biden. The case exposed the incredible lengths to which the Biden White House and its federal agencies have gone to bully social-media platforms into removing political views they dislike. The White House is appealing and attained a stay, hoping to retain this powerful tool of thought control right out of 1984. A victory for censorship of Americans and their thoughts could be the greatest threat to free speech in American history.

     

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    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

    Free Speech and Fair Play are a Bitch

    July 14, 2023 // 13 Comments »

    If there were two lessons from the high school civics class most Americans seemed to skip that they should learn now they are: rights are for everyone and free speech sometimes protects speech you don’t like yourself. Luckily, the Supreme Court recently offered America a tutorial on both topics.

    In Students for Fair Admissions, Inc. v. President & Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina the Court made the common sense ruling that discrimination of some colors of people is a poor way to fix discrimination of other colors of people. What woke mind could possibly conceive that the 14th Amendment’s equal protection under the law meant treating a large portion of the population grossly unfairly at the expense of another? Kind of a common-sense argument but one America needed to travel all the way to the Supreme Court to resolve.

    Starting back with 1979’s Bakke and largely confirmed by the Supreme Court in 2003’s Grutter, America’s higher education institutions decided it was they who would fix systemic racism in America by offering preferential treatment by race, specifically, white and yellow colored students were considered less deserving of a good education at say Harvard, and had to sit out the Ivy League so that some black and brown kids could take their places. The word for this back in the day was not racism (which it was) but “affirmative action.” It would right wrongs. This “reverse discrimination” was allowed through some clever word play because its goal of a diverse student body was considered a “compelling state interest” that overshadowed other compelling interests, such as equal protection for all under the law. It was sanctioned by the Supreme Court of its day, but only as a temporary solution; Justice Sarah Day O’Conner in one of the key cases upholding affirmative action wrote, “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”

    It didn’t seem to work, short or long term, in significantly changing society, if black and brown activists of 2023 are to be believed. Decades of pushing aside white and yellow kids (the former privileged because once upon a time other unrelated white people owned slaves and the latter just too damn hard working and smart) for black and brown did not seem significantly change society. There are of course individual examples, both fake (blacks or browns who would have succeeded in any system) and occasionally real, true by-their-bootstraps stories once they got that helping hand.

    “When affirmative action was conceptualized, it was to right past wrongs,” one commenter said. “Then, it became sort of endless. It wasn’t just African Americans. It was Native Americans and Hispanics. And then it was women, LGBT, etc., and that wiped out the moral imperative of it a little, because diversity is not quite as strong a claim as correcting past wrongs.”

    There were other problems. Letting someone into Harvard is not the same as him succeeding at Harvard. I learned that in high school too, by the way. If some program had sent me to an Ivy school at age 18 I would have failed miserably, coming out of a non-rigorous but nice enough Ohio high school where upon graduation I had neither read one classic book nor written one proper research paper. I think Harvard expects you to know that kind of thing and white as I am, I would have floundered. I’m sure they have some sort of remedial program for their unqualified students but it seems unlikely to make up for many years of half-hearted education before it. And that exposes another dirty little secret about why affirmative action failed; America is divided by class, not race (though the two overlap in a Venn diagram.)

    America’s second recent high school civics lesson is you as an individual may not like everything other people use their freedom of speech to say and do; in fact, their deeply held beliefs may run 180 degrees from yours. Protip for exam time: this is the whole point of the First Amendment free speech clause and it was on display in another recent Supreme Court decision, 303 Creative v. Elenis.

    The crux of the case is that one side, a web designer, wanted to know what would happen if she refused to produce a hypothetical celebratory wedding page for a gay couple, claiming her religion did not allow her to support same-sex marriage. The couple would have sued because of course they would, likely claiming as a protected class by sex in Colorado, the cake maker must be forced by the government to make the cake they wanted celebrating their nuptials. Lower courts had weighed in in favor, claiming various cake makers, florists, and web designers must be forced to practice their craft (i.e., their expression, their speech) to avoid LGBT discrimination. It was as if one side had more rights than they other and would have resulted in the government of the United States using the threat of arrest or fine to force the web designer to produce speech she was opposed to.

    That’s a big no-no in a democracy, compelling speech.

    Though the state can demand businesses provide goods and services to all customers in protected categories, it cannot demand individuals engage in speech proclaiming messages that they oppose, such as in web page design. In Justice Samuel Alito’s words, a win for the state of Colorado would mean some businesses that provide custom speech for customers could be forced to “espouse things they loathe.”

    This all goes back to 1943’s West Virginia Board of Education v. Barnette when during WWII the Supreme Court held West Virginia could not make Jehovah’s Witness students pledge allegiance to the American flag. The decision contained arguably the most famous finding in American First Amendment law: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein.” The key finding in 303 Creative is the designer is not denying a service on the basis of status of a protected class but instead refusing to engage in speech because she disagreed with its message (Masterpiece Cakeshop failed to yield a definitive ruling and is not relevant here.)

    Despite all the hub-bub, the Court correctly applied the broader civics class way of thinking in 2023, focusing on the First Amendment speech clause, and said nothing directly about the more contentious and limited religious aspect of all this, and passed on 2023’s wokist definition of discrimination. Had the recent case involved a Jehovah’s Witness’ web page and not ostensibly something to do with gay rights, you would barely have heard of the matter even though the real significance would have been about the same.

    It’s easy to forget most of what you heard in high school, especially in a one-off class like civics. But common sense can get you a long ways. It is easy to write off the Court’s decision in Students for Fair Admissions as discriminatory, with only a little thought that what it did away with — affirmative action — was discriminatory as heck. Same for 303 Creative v. Elenis, which is being promoted by the MSM as anti-LGBT thing when in fact it is an example of how robust our First Amendment is. At the Founding no one could have conceived of a free speech battle between a web designer and gay clients, but that is what the First Amendment expanded to take in. The Supreme Court has not gone rogue, and democracy is not in danger. These two recent cases prove if anything the system is flexible for the times and robust in defending the most basic freedoms a democracy is built upon.

     

     

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    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 Hasn’t the U.S. Arrested WaPo Journalist for Publishing Classified Documents?

    April 28, 2023 // Comments Off on Why Hasn’t the U.S. Arrested WaPo Journalist for Publishing Classified Documents?

    Why hasn’t the U.S. government arrested WaPo journalist Shane Harris for publishing highly classified documents related to the war in Ukraine and U.S. spying on its allies? The ones leaked by Air national Guardsman Jack Teixeira?

    The documents contain significant revelations.  Among other secrets, they show the CIA recruited human agents privy to the closed-door conversations of world leaders, reveal eavesdropping that shows a Russian mercenary outfit tried to acquire weapons from NATO ally Turkey to use against Ukraine, explained what kind of satellite imagery the United States uses to track Russian forces, and made clear U.S. and NATO have special forces on the ground inside Ukraine.

    Why Shane Harris is not in jail has a long history, and a complex answer. 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 (the same law under which Jack Teixeira is charged.) A federal court ordered the Times to cease publication after initial excerpts were printed, the first time in U.S. history a federal judge censored a newspaper via prior restraint. In the end, the Supreme Court reversed the lower courts and handed down a victory for the First Amendment in New York Times Company v. United States. The Times won the Pulitzer Prize. Ever since media have published national security secrets as they found them.

    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 for the prosecution of journalists who publish classified documents by focusing narrowly on prohibiting prior restraint. Politics and public opinion, not law, has since 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 closest an American journalist ever came to being thrown in jail was in 2014, when the Obama administration subpoenaed New York Times reporter James Risen. They then accused former CIA officer Jeffrey Sterling of passing classified information to Risen. After a lower court ordered Risen to testify and disclose his source under threat of jail, the Supreme Court turned down his 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 the First Amendment implied a “reporter’s privilege,” an undocumented protection beneath the handful of words in the Free Press Clause.

    In the end, the Obama administration, fearful of public opinion, punted on Risen and set precedent extra-judicially. Waving a patriotic flag over a messy situation, then-attorney general Eric Holder announced that “no reporter who is doing his job is going to go to jail.” Risen wasn’t called to testify and wasn’t punished for publishing classified material, even as the alleged leaker, Jeffrey Sterling, disappeared into prison for three and a half years. To avoid creating a precedent that might have granted some form of reporter’s privilege under the Constitution, the government set a different precedent and stepped away from the fight. That’s why Shane Harris of the Washington Post isn’t under arrest right now. For traditional media American journalists like Shane Harris, the Risen case was a turning point.

    Meanwhile Wikileaks’ Julian Assange is under arrest, rotting away in his fifth year in a UK prison fighting extradition to the United States. There are complex legal questions to be answered about who is a journalist and what is publishing in the digital world — is Assange himself a journalist like Risen or a source for journalists like Sterling was alleged to be? There is no debate over whether James Risen is a journalist and whether a book is publishing. Glenn Greenwald has written about and published online classified documents given to him by Edward Snowden, and has never been challenged by the government as a journalist or publisher.

    Assange isn’t an American, so he is vulnerable. He is unpopular, drawn into America’s 21st-century Red Scare for revealing the DNC emails. He has written nothing alongside the primary source documents on Wikileaks, has apparently done little curating or culling, and has redacted little. Publishing for him consists of uploading what has been supplied. The government would argue Assange is not entitled to First Amendment protections simply by claiming that a mouse click and some web code isn’t publishing and Assange isn’t a journalist. The simplest interpretation of 18 U.S.C. § 793(e) of the Espionage Act, that Assange willfully transmitted information relating to national defense without authorization, would apply. He would be guilty, same as the other canaries in the deep mine shaft of Washington before him, no messy balancing questions to be addressed. And with that, a unique form of online primary source journalism would be made extinct.

    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 gets a phone call from the President and decides 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 internet created them.

    Allowing these new tools to be broken over the meaning of the words journalist and publishing will stifle all of what’s left 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 national security leaks. Is a reporter, for example, publishing a Signal number 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 Assange case may prove to be the topper in a long-running war of attrition against free speech.

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    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 Ministry of Twitter

    December 22, 2022 // 3 Comments »

    I was shadow banned by Twitter, even after my suspended account was restored. What is it with these people? What are they so afraid of?

    Things are changing fast under new owner Elon Musk, but using available free tools a few days ago I found my new account @PeterMVanBuren has been electronically censored. Specifically, using a tool called Shadow Bird, I learned my tweets have been subjected to Reply Deboosting. This means my replies on tweets will be hidden behind a “Show More” button for accounts that don’t follow me. This is particularly frustrating because it essentially silences me except among people who already know and usually agree with me. It makes it nearly impossible to build followers; they have to stumble on to my tweets or come looking for me based on something they have seen online. It is a very effective way of shutting someone up without leaving more than a paranoid’s slime trail behind, until now.

    After years of denying such manipulation (“Paranoid much, dude?”) Elon Musk has made public information showing Twitter has been subjecting mostly conservative voices to search suggestion bans, search bans, ghost bans ( blocking content from an online community in such a way that the ban is not readily apparent to the user) and reply deboosting. Though directed at a variety of users, the bans have disfavored voices from the right and in all cases were implemented without notice to the user and without a chance for any form of process or arguing back. Yes, yes, Twitter is a private company and not subject to the 1A, but the moment they became a private company with the ability and now the demonstrated willingness to influence presidential elections their business became everyone’s business. Extensive Twitter threads posted by Matt Taibbi and Bari Weiss revealed that the company was essentially part of a coordinated Democratic suppression operation and actively colluded with the FBI to destroy Donald Trump and assure Joe Biden’s election. Which is why, as Elon Musk observed, “Twitter is both a social media company and a crime scene.”

    In his novel 1984, George Orwell suggested a diabolical solution to the problem of censorship. He conjured up a technological device for the world of Big Brother that he called “the memory hole.” In his dark future, armies of bureaucrats, working in what he dubbed the Ministry of Truth, spent their lives erasing or altering documents, newspapers, books, and the like in order to create an acceptable version of history. When a person fell out of favor, the Ministry of Truth sent him and all the documentation relating to him down the memory hole. Every story or report in which his life was in any way noted or recorded would be edited to eradicate all traces of him. Same for ideas. A purity of thought, a world in which negative news such as about Hunter Biden’s laptop simply did not exist, was created.

    In Orwell’s pre-digital world, the memory hole was a vacuum tube into which old documents were physically disappeared forever. Alterations to existing documents and the deep-sixing of others ensured that even the sudden switching of global enemies and alliances would never prove a problem for the guardians of Big Brother. In the world he imagined, thanks to those armies of bureaucrats, the present was what had always been — and there were those altered documents to prove it and nothing but faltering memories to say otherwise. Anyone who expressed doubts about the truth of the present would, under the rubric of “thoughtcrime,” be marginalized (shadow banned) or eliminated (search banned.) What is scary is not how Orwell differs from Twitter, but how much the same they are. 1984 was not supposed to be an instruction manual.

    Through my Foreign Service career I served in and visited countries that practiced overt government censorship. Critics of the regime would be punished, the least physical of which method was usually the most effective, simply finding ways to stop them from publishing. No newspaper or broadcasting station would take their work, to the point where they found themselves unable to hand out photocopied pamphlets on street corners. What astounded me was not the censorship per se, that was easy to understand no matter how abhorrent, but the degree of detail. As with Iran’s “appearance” morality people who look for any wisp of hair peaking out from beneath a hijab, no subversive thought is too small, no objectionable material too minor to stomp on. It is the pervasiveness of evil, its level of detail, that makes it so wrong. A dictator need not disappear a troublesome person anymore, just his ideas. The need to murder Jamal Khashoggi was a failure of Internet technology.

    I hate using Twitter but am expected to post my articles there and try to build a following of readers. Even after restoring me to Twitter after my original account with several thousand followers was shut down, somewhere deep within the Ministry of Twitter someone still thought I must be a threat of some kind, and electronically made sure I would never amass as large a following again, all via reply deboosting. I was a thought threat as far as Twitter was concerned and I had to be dealt with. I had made about 50 Tweets and a few RTs; is there some sort of naughty not nice list?

    Of course what Twitter (and no doubt other social media sites) has been doing is small stuff. For the future, look to Google and negative search strategy. Here’s how a negative search strategy works, even if today its focus — largely on pedophiles — is easy enough to accept. Google uses software which makes it harder for users to locate child abuse material. Google Search has been “fine-tuned” to clean up results for more than 100,000 insider terms, many supplied by law enforcement, used by pedophiles to look for child pornography. Now, for instance, when users type in queries that may be related to child sexual abuse, they will find no results that link to illegal content. Instead, Google will redirect them to counseling sites. “We will roll out these changes in more than 150 languages, so the impact will be truly global,” Google claims.

    While Google is redirecting searches for kiddie porn to counseling sites, the NSA has developed a similar ability. The agency already controls a set of servers codenamed Quantum that sit on the Internet’s backbone. Their job is to redirect “targets” away from their intended destinations to websites of the NSA’s choice. The idea is you type in the website you want and end up somewhere less disturbing to the agency. While at present this technology may be aimed at sending would-be online jihadis to more moderate Islamic material, in the future it could, for instance, be repurposed to redirect people seeking news to an Al-Jazeera lookalike site with altered content that fits the government’s version of events. Or making sure no one saw an article about Hunter Biden’s laptop. Or hiding the latest revelations from social media.

    Back on Twitter, welcome to @MoonmanCartoons, an account featuring the conservative editorial cartoons of Robert Mooney. Mooney has all of 88 followers yet is subject to Twitter’s reply blocking and search suggestion ban, making it impossible for him to build followers. He posts a cartoon and less than 100 people see it; why bother, Twitter?

    “Why would they censor us ‘small fish?’ Mooney asked TAC in an interview. “I think there are a couple of reasons, the first of which is simply because they can. If the technology exits, why wouldn’t they use it to achieve their objectives? Also, I think they may see some people at our level as potentially influential if they don’t nip us in the bud. Despite the censorship, I’ve occasionally slipped one by the goalie. For example, when Dinesh D’Souza retweeted one of my cartoons about 2020 election fraud, I got almost 1400 likes and 439 retweets. That sort of thing is rare, but it’s happened a few times, showing that I have a potential receptive audience out there.”

    “As for whether this is similar to other nations that censor, I’ve felt for months that where we are in the U.S. right now with regard to censorship and the criminalization of political opposition is the American equivalent of Germany 1933. Obviously it’s not an exact duplication of the dawn of the Third Reich, but if we keep going down this road, we will end up with a country very different from what we’ve known for over two centuries and from what the Founders intended — and not different in a good way.”

    As they say, it starts with the small stuff. Like Twitter.

     

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    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

    What is Speech? Expression vs. Art, LGBTQ Edition

    December 15, 2022 // 4 Comments »

    A friend makes maps, colorful graphic maps of mostly Washington DC neighborhoods. She sells them, often framed, by the bushel at farmer’s markets and through her own shop. She often asks people where they live, but never how they live. Her service — the map — is neutral to whom one is married to, what religion they practice, which party they support. Everyone is welcome to buy a map, and all the maps are the same.

    Not so for the hypothetical wedding cake maker in the next stall. While anyone is free (indeed, allowed by law) to buy an off-the-rack cake, she refuses to use her form of speech to support LGBTQ weddings. She’ll sell a gay couple a cake predecorated reading “Have a Great Day” but will not create say a rainbow design with two women holding hands for a couple or otherwise knowingly use her skills to celebrate the marriage. She claims that violates both her 1A right to practice her religion and, the emphasis here, her 1A right to free speech. Anti-discrimination laws (20 states have laws specifically protecting LGBTQ people) cannot compel her to create speech she does not believe in. A lot going on under the surface at the farmer’s market, and that’s why the Supreme Court has had to step in and sort things out.

    The instant case is 303 Creative v. Elenis, ostensibly a culture war-religious 1A challenge that only incidentally concerns religion while really asking the question of “what is speech” and when can anti-discrimination laws compel it. Specifically, “whether applying a public-accommodation law to compel an artist to speak or stay silent violates the free speech clause of the First Amendment.” The Court heard oral arguments in early December, with a decision due in June.

    The story starts familiar enough for 2022: Lorie Smith is a Colorado website designer who, according to her Supreme Court brief, intends to design custom wedding websites, and refuses to design websites that advance ideas or causes she opposes, such as same-sex marriage. She says she will work with gay clients on other, non-same-sex-marriage websites.

    The existing law is pretty straightforward, saying, if a vendor is providing a service such as, say, running a drug store sandwich counter, then it doesn’t enjoy a constitutional right to refuse service to customers on the basis of status or identity. But though the state can demand that businesses provide goods and services to all customers without regard to race, sex, sexual orientation, and other protected categories, it cannot demand businesses or individuals engage in speech proclaiming messages that they oppose. Smith argues designing websites is a form of speech. The essence of the 1A is that the government cannot compel speech. Compelled speech crushes the speaker’s conscience and is a tool of authoritarianism. In Justice Samuel Alito’s words, a win for the state of Colorado against Smith would mean some businesses that provide custom speech for customers could be forced to “espouse things they loathe.”

    The mother of all cannot-compel-speech cases is 1943’s West Virginia Board of Education v. Barnette. At the height of World War II, the Supreme Court held that West Virginia could not make Jehovah’s Witness students salute and pledge allegiance to the American flag. The decision contained arguably the most famous single sentence in American First Amendment jurisprudence: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein.” The key question in 303 Creative is whether Smith is denying a service (websites) on the basis of status (her customers are gay) or refusing to engage in speech because she disagreed with its message.

    In this case, the Supreme Court was well aware of a similar one, Masterpiece Cakeshop v. Colorado Civil Rights Commission, that never resolved the underlying core issue of what is speech, floundering instead on the religious angle and even the question of whether certain cake makers held a monopoly for their services. So never mind.

    In the oral arguments just heard in 303 Creative, the Supreme Court’s conservative majority seemed prepared to rule a designer has a First Amendment right to refuse to create websites celebrating same-sex weddings based on her Christian faith despite a state law that forbids discrimination based on sexual orientation. But several justices leaning in that direction appeared to be searching for limiting principles so as not to unintendingly upend all sorts of anti-discrimination laws.

    The justices seemed to be creating new ground legally separating racists from those who oppose gay marriage. Justice Ketanji Brown Jackson brought up a hypothetical mall Santa, wondering whether a photographer who wanted to create the ambiance of the movie “It’s a Wonderful Life” might be able to exclude Black children. Alito countered by conjuring up a Black Santa at the other end of the mall who wanted to be free to refuse a photograph to a child wearing a Ku Klux Klan outfit. The difference between a service (a sandwich at a lunch counter) and art (words expressing joy over a same sex union) came up repeatedly. A thread throughout the arguments was whether the refusal to provide wedding-related services for a same-sex couple could be compared to the same treatment of interracial couples. The lawyer for 303 Creative said it could not and pointed out that in its decision finding a constitutional right to marriage for gay couples, the Court noted that respect was due to those who disagreed with same-sex marriage as a matter of religious belief. No such call for respect exists for those who oppose interracial marriage.

    The arguments explored the difference between businesses engaged in expression and ones simply selling goods; the difference between a client’s message and that of the designer; the difference between discrimination against gay couples and compelling the creation of messages supporting same-sex marriage; and the difference between discrimination based on race and that based on sexual orientation. Whereas the earlier Masterpiece Cakeshop case failed to yield a definitive ruling, this one is expected to settle the question of whether businesses open to the public and engaged in expression can refuse to provide services to potential customers based on their religious or other convictions.

    What it all means: if the Court acts as it has signaled it will, in favor of 303 Creative, then this will free conservative creative people to work within their fields without having to express beliefs, such as acceptance of same-sex marriage, contrary to their conscience. The Court will preserve anti-discrimination laws, hard won, to ensure we do not slip backwards to a time of segregated lunch counters and the like.

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    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 Does the NYT Now Support Assange?

    December 14, 2022 // 4 Comments »

    Why did The New York Times, The Guardian, Le Monde, Der Speigel, and El Pais demand that Department of Justice drop most charges against Julian Assange?

    The news organizations recently called on the United States government to drop most of its charges (the charges related to hacking directly with then-Army intel specialist Chelsea Manning are unmentioned) against WikiLeaks founder Julian Assange for publishing classified information. In a letter the media outlets said the prosecution under the Espionage Act “sets a dangerous precedent” that threatened to undermine the First Amendment and global press freedoms broadly. “Obtaining and disclosing sensitive information when necessary in the public interest is a core part of the daily work of journalists. If that work is criminalized, our public discourse and our democracies are made significantly weaker. Holding governments accountable is part of the core mission of a free press in a democracy.”

    Demanding leniency for Assange, who has been fighting extradition from Britain to the U.S. since his arrest there in 2019, seems a noble act. But 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 initial excerpts were printed, the first time in U.S. history a federal judge censored a newspaper via prior restraint. In the end, the Supreme Court reversed the lower courts and handed down a victory for the First Amendment in New York Times Company v. United States. The Times won the Pulitzer Prize. Ever since media published secrets as they found them.

    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 for the prosecution of journalists who publish classified documents by focusing narrowly on prohibiting prior restraint. Politics and public opinion, not law, has 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 2022 Assange letter from the New York Times, et al, is as self-serving (begging for the status quo no matter what happens to Assange the hacker) as it is noble.

    Allowing the media to publish is not the same as allowing unfettered access to government secrets. On July 30, 1778, the Continental Congress created the first whistleblower protection law, stating “that it is the duty of all persons in the service of the United States to give the earliest information to Congress or other proper authority of any misconduct, frauds, or misdemeanors committed by any officers or persons in the service of these states.” The Executive has since aggressively used the Espionage Act and other laws to prosecute whistleblowers who leak to journalists.

    The closest a journalist ever came to being thrown in jail was in 2014, when the Obama administration subpoenaed New York Times reporter James Risen. They then accused former CIA officer Jeffrey Sterling of passing classified information to Risen. After a lower court ordered Risen to testify and disclose his source under threat of jail, the Supreme Court turned down his 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 Obama administration, fearful of public opinion, punted on Risen. Waving a patriotic flag over a messy situation, then-attorney general Eric Holder announced that “no reporter who is doing his job is going to go to jail.” Risen wasn’t called to testify and wasn’t punished for publishing classified material, even as the alleged leaker, Jeffrey Sterling, disappeared into prison for three and a half years. To avoid creating a precedent that might have granted some form of reporter’s privilege under the Constitution, the government stepped away from the fight.

    Those same issues now hover over Julian Assange. Should the government decide to prosecute him, there are complex legal questions to be answered about who is a journalist and what is publishing in the digital world — is Assange himself a journalist like Risen or a source for journalists like Sterling was alleged to be? There is no debate over whether James Risen is a journalist and whether a book is publishing. Glenn Greenwald has written about and published online classified documents given to him by Edward Snowden, and has never been challenged by the government as a journalist or publisher. The elements of fact checking, confirming, curating, redacting, and providing context around classified information were all present in the New York Times case with the Pentagon Papers; they are also present with American citizens Risen and Greenwald. Definitions and precedents may be forming.

    Assange isn’t an American. He is unpopular, drawn now into America’s 21st-century Red Scare for revealing the DNC emails, supposedly hacked by Russia. He has written nothing alongside the documents on Wikileaks, has done little curating or culling, and has redacted little. Publishing for him consists of uploading what has been supplied. The government could argue that Assange is not entitled to First Amendment protections simply by claiming that a mouse click isn’t publishing and Assange isn’t a journalist. The simplest interpretation of the Espionage Act, that Assange willfully transmitted information relating to national defense without authorization, would apply. He would be guilty, same as the other canaries in the deep mine shaft of Washington before him, no messy balancing questions to be addressed. And with that, a unique form of online primary source journalism would be made extinct.

    The 2022 media letter regarding Assange begs the question of why now. On paper, Assange’s situation is unchanged for months. He sits in dank Belmarsh prison in Britain fighting his extradition to the U.S.; nothing new there. On the American side Attorney General Merrick Garland has sought to limit ways the Justice Department can make life harder on journalists. In October, he issued new regulations banning the use of subpoenas, warrants or court orders to seize reporters’ communications records or demand their notes or testimony in an effort to uncover confidential sources in leak investigations. Could it be deal has been made for the U.S. to drop all charges against Assange absent working with Manning on the hack itself? Or is lapdog Britain simply tired of carrying water for the U.S. and demanding, politely, action (hence the Australian government support for media letter?) Has Assange’s health taken a significant turn for the worse?

    It may just be that Assange is an easy target for both sides. With him the government is able to mold the legal precedents with such certainty that, where they backed away from other cases in their long-running war of attrition against free speech and the press, this one they may seize. It could be as simple as the self-serving media letter of 2022 is meant to forestall that.

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    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

    Orwell’s Mistakes

    November 28, 2022 // 2 Comments »

    Under the gathering dark clouds of today, a reread of 1984 showed how the otherwise prescient George Orwell was wrong to think people were going to have to be tortured into submission; half of America (still psychologically locked down, vexed and vaxed, of course) wouldn’t want it any other way.

    The world of 1984 is grim in a way 2022 would understand. The people of Orwell’s future want to be controlled. They have come to prefer it. Freedom from choice makes them feel safe. People accept being monitored, and their media being censored. They think of it all with a sense of the inevitable, the only way to stay safe, if they think of it at all. The all-seeing telescreens in their homes, the snitches and spies embedded in their lives, are just the way of it, for the better, really. Language itself is changed not to just stifle dissent but to make it impossible.

    In 1984 it is the government which controls and modifies all media, sending events from the past no longer politically correct down the memory hole. Today we have the legacy media which do that for us. We can no longer read a newspaper or watch a documentary with any expectation any part of it is true. Americans relish fake news. In only one example, the truth is there was no collusion between Russia and the Trump campaign. It was all made up, doublethink, embellished with lurid “details” like the pee tape so absurd they wouldn’t make it into a B movie script. Michael Cohen never went to Prague. The FBI had to lie to obtain FISA permission to spy on Trump associates. Yet vast numbers of Americans still believe it all to be true, and seek out media which clings to the edges of the story. Indeed 2+2 can equal 5 if you believe it does.

    In another example, Hunter Biden financially benefited trading off his father’s position. He made millions from China and Ukraine selling influence. The media acted collectively with the full support of about half of Americans to disappear the story and influence the 2020 election. Once pushed underwater, the story never came back in time for the 2020 election, maybe not for the 2024 one. When I Google Hunter’s name I find sympathetic replacement stories about his battles with various addictions. Most Americans welcome the sleight of hand. They don’t want another scandalous administration. They want censorship to clean that up. The government doesn’t have to police it; in America, journalists demand the suspension of other journalists’ 1A rights based on ideology if things go off message.

     

    Orwell’s Two Minutes of Hate was when the public was told to express hatred toward enemies of the state whether it made sense or not. The Brett Kavanaugh hearings were a widely welcomed version of this, using the confluence of mediagenic victims, politicians, and MSM whipping up the crowd. Social media, particularly Twitter, serves the same ongoing purpose; we loved Cuomo as the anti-Trump until told to hate him as a sexual harasser. Is Dr. Fauci a good guy or a bad guy this week? Your own family is also a target as white allies are told “Text your relatives and loved ones telling them you will not be visiting them or answering phone calls until they take significant action in supporting black lives.”

    In 1984 criticism of The Party was the worst sin, punishable by loss of status, loss of work, loss of self — cancellation. Though America so far does not include the physical torture portion (in Newspeak, enhanced interrogation) of 1984-style cancellation, the rest of the tools are active. Party orthodoxy is replaced by the sin of criticizing diversity and being denounced as a racist. Whole industries — academia, media, entertainment — are controlled by the issuance of double plus good anti-racist badges.  Most all the media we consume, and what our kids learn in school, is filtered, judged, and censored by an ideological mob as convinced of their own rightness as any Nazi ever was.

    If you want to keep your job in those fields and more you must embrace Big Diverse Brother, and most are more than happy to do so. Those who fall out of favor with the Party in 1984 become “unpersons,” disappearing with all evidence of their existence destroyed. In 2022 they are deplatformed. Institutions don’t punish dissent per se as much as seek to make enough examples to make dissent impossible.

     

    Orwell envisioned the need for a massive Ministry of Truth to enact societal control when in fact all it took was some silliness about whether calling COVID “Chinese flu” was racism, and a dash of sky-is-falling articles. Make fear the problem and empowering protectors becomes the solution. The message worked: You have to give things up for a safe society. If you don’t, you’re selfish; you’ve committed a crime against your neighbors.

    When Orwell wrote 1984 he could not envision any entity more powerful than government, backed up by secret police and the army itself. Orwell could not imagine global media and its running dog companion social media screening what we read, and providing the tools of cancelation. He did not foresee the end point of global capitalism, a handful of people with almost all the money who could buy the laws and societal changes they wanted.

    Instead of adapting to this reality and pushing back, progressive Americans cheer it on. They roll like dogs in mud over the idea that while the government can’t censor Dr. Seuss, a corporation can. They enjoy the ignorance of pretending such censorship is not censorship because, for now at least, only things they don’t like are being censored. They enjoy pretending it doesn’t matter if it is done by a private entity. They refuse to imagine the same tools turned against an idea they support. They want to believe Big Brother knows best. They do not want dissenting opinions and call greedily on corporations to scrub them from their lives.

    In 2022 America we not only voluntarily accept surveillance, we want more of it because it makes shopping easier. We spend thousands of dollars to buy and maintain 24/7 devices on our person that track our location, record our communications, study and analyze our personal habits from porn preferences to fashion choices, all so Amazon can recommend products to us. Tracking us was sold first as a way to keep us safe from terrorist attacks that never came, then to catalog our associations to keep us safe from a COVID crisis kept on the boil as long as possible. We want Big Brother to know where we’ve been so he can warn us not to associate with the “diseased” people there. Vaccine passports to label and reward the compliant? Yes, please, if it means we can go to ball games.

    We love surveillance technology 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, aided by loved ones snitching, to arrest them. There is even a do-it-yourself version of facial recognition progressives used to help law enforcement ID rioters. The goal was to jail people if possible, but most loyalists seemed equally satisfied if they could cause someone to lose their job.

    In America my society thinks I am so stupid I have to be warned a thing called “Hot Coffee” is hot. I must click accept to multipage legal agreements to use a household appliance. I must on a daily basis subordinate myself to an ever-growing army of private guards, inspectors, stewardesses, waiters, and store clerks who have the power to harm me, or at least mess up my plans for their own amusement. I have to live under laws based on no science or sense. I have to believe history that is not true. I have to keep in mind race does not matter except when it does to select the proper amount of each color into a job or college in pursuit of a lofty goal no one can show really helps. I have been told to judge the fairness of elections based on who wins. I have had to learn to live in a society that hates me simply because I was born a white heteronormative male. After national, state, and local governments, plus my condo board and the local grocery store added layers of Covid laws, rules, and regulations, to hug my adult children last year I had to break laws.
    As a young man I visited Soviet Eastern Europe. I lived in China, and in Taiwan under dictatorship. I spoke to survivors of the Cultural Revolution, and torture victims from Seoul’s years of military control. I’m much older now, and know when I’ve seen a thing before. I know increasingly in my American life my thoughts are increasingly no longer my own. Orwellian? Orwell was an amateur.

     

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    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

    Texas Law Likely to Go to Supremes: Can Twitter and Facebook Censor Viewpoints?

    November 14, 2022 // 5 Comments »

    God bless Texas. A case the state recently won at the circuit level is almost certainly headed to the Supreme Court. The Texas law, upheld, makes it illegal for social media giants to censor, delete, or otherwise interfere with viewpoints, what is known as content discrimination. If the Supreme Court stands with the circuit court decision, that means Twitter (Facebook, YouTube, Insta, et al…) would no longer be able to blanket ban “ideas” such as the Hunter Biden laptop story, or ban users simply because of the point of view they support about vaccinations. The challenges are mighty, but the case is potentially a landmark one for free speech in the 21st century.

    The story actually begins in Florida, where the state tried to enact a similar law to Texas’ to protect politicians and journalists (sidestepping the complex question of which users fall into those categories) on social media from corporate censorship. The law, as in Texas, is narrowly focused on content/viewpoint censorship, the worst kind according to Supreme Court precedent. Content discrimination seeks to outlaw speech based on the point of view it holds (“some vaccines are bad,” “Biden is a dangerous president.”) It is particularly injurious to the idea of free speech because it seeks to shut down dissent, to stifle debate, and to prevent things from even entering the marketplace of  ideas. The cure for bad speech is more free speech not censorship, the Court has long held, and what social media companies are doing at present is just the opposite. How can an idea be debated if one side is blocked?

    The 11th Circuit Court struck down the Florida law, specifically stating tech companies’ moderation decisions are protected by the First Amendment. This is in line with the social media giants’ argument they are best seen as a kind of newspaper, and newspapers of course have editors who decide all the time what articles get printed and which are left in the trash. The 11th Circuit said these decision themselves are protected speech; “we conclude that social media platforms’ content-moderation activities — permitting, removing, prioritizing, and deprioritizing users and posts — constitute ‘speech’ within the meaning of the First Amendment.” Those rights to edit/censor precede any rights owed to the content itself.

    And it does not matter if social media qualifies as a common carrier (as Florida claimed) or not. The 11th Circuit in Florida would have nothing of it, saying “Neither law nor logic recognizes government authority to strip an entity of its First Amendment rights merely by labeling it a common carrier.”

    As background, the uber-reason the First Amendment does not apply already to social media is of course that it is not run by the government and thus falls outside the 1A; only the government can formally “censor” and only the government is restrained by the 1A from interfering with free speech. Private companies may do what they like, and so when on Facebook you scrolled through and clicked “Accept” to the Terms of Service you circumvented the Constitution.

    Common carriers on the other hand are entities in this instance that provide wired and wireless communication services to the general public, like the phone company. Because they are available to anyone to use, the law has long held they are subject to government regulation (something similar separates highly regulated over-the-air broadcast networks from paid cable services, which is why Bill Mahr can cuss on his show and Lester Holt cannot.) Texas law holds Twitter, et al, are akin enough to the phone company that they are subject to government regulation, i.e., a new law that prohibits Twitter from censoring content. No one would stand for a phone company, for example, that kicked users off its platform because they used dirty words in a phone call, or supported one candidate over another (Justice Clarence Thomas has written on the similarities between social media platforms and the phone company.) This side steps the 1A’s limit to government. It is not a new argument and was also made in the Florida law, but…

    Texas had its law heard by the more conservative 5th Circuit Court, which among other things reacted more strongly to the concern over viewpoint discrimination, and preserving that marketplace of ideas. “To the extent it [the Texas law] chills anything, it chills censorship,” the court’s opinion reads, emphasis in the original. The section of the Texas law at issue, it continues, “might make censors think twice before removing speech from the Platforms in a viewpoint-discriminatory manner.”

    The opinion goes on to say: “We reject the Platforms’ attempt to extract a freewheeling censorship right from the Constitution’s free speech guarantee. The Platforms are not newspapers. Their censorship is not speech. They’re not entitled to preenforcement facial relief. And HB 20 [the Texas law] is constitutional because it neither compels nor obstructs the Platforms’ own speech in any way.” The idea is to compel platforms not to post or delete specific speech per se, but to allow speech.

    The 5th Circuit opinion further does away with the argument social media Platforms are like newspapers with their editors. The court explains newspaper editors decide what to include given limited space; Platforms do the opposite, determining only what to not include despite unlimited space. Platforms cannot cite the 1A to grant themselves unqualified license to invalidate laws that hinder them from censoring speech they don’t like, and the censorship of broad ideas (ex. anti-vax) is not the exercise of editorial judgement.

    As for the Texas law upheld, it seeks the following: A social media platform may not censor a user, a user’s expression, or a user’s ability to receive the expression of another person based on 1) the viewpoint of the user or another person; 2) the viewpoint represented in the user’s expression or another person’s expression; or 3) a user’s geographic location in this state or any part of this state.

    The last point grows out of concern Facebook might block opinions within Texas by region to influence election results. It might be expanded nationally to ensure conservative voices from Texas have as much access to the platform as liberal voices from California as polls are still open across America. The main points of the argument drive home the idea that the stifling of speech in any venue has a deleterious effect on democracy, and that the expression of outrageous ideas should be controlled by the understanding of the audience (“other ideas”), not by corporate intermediaries panicked their platform is being abused by lunatics, Russians, or people they just disagree with.

    So where do things stand? The Supreme Court in an emergency declaration has stayed the Texas law given how the Florida law was rejected by the 11th Circuit and then approved for Texas by the 5th Circuit. It is almost certain both cases will be appealed to the Supreme Court, which will combine them, for the final word in whether or not social media can practice viewpoint discrimination. Given the role of social media and its reach into American society, and the polarized opinions on how it should work, it is not beyond possible that the Court’s decision in this future case will stand alongside the other giant First Amendment struggles in determining how Americans may speak to one another in the marketplace of ideas.

     

    Even a negative Supreme Court decision may not be the end of the issue. Almost Candidate Donald Trump said at a rally in Ohio in support of GOP midterm congressional candidates “Another one of our highest priorities under Republican Congress will be to stop left-wing censorship and to restore free speech in America, which we do not have.” There are already 100 bills in state legislatures aimed at regulating social media content moderation policies. There is no question instances like the Hunter Biden laptop incident, and purges of conservative commentators (to include Donald Trump) have driven much of the need to control content moderation which spills over into viewpoint discrimination. This is shameful enough.

    What is truly shameful, however, is how progressive voices now relishing the power to censor because the most popular platforms follow their wishes cannot see how quickly things could change and the censor’s aim be redirected at them. In a little-known 2018 case, a lawyer for Twitter even told a judge the company had the right to censor black people and other protected groups. “Does Twitter have the right to take somebody off its platform if it does so because it doesn’t like the fact that the person is a woman? Or gay?” a judge asked a lawyer for the company. “The First Amendment would give Twitter the right,” the lawyer replied.

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    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

    Elon, Time to Kill Twitter

    October 19, 2022 // 2 Comments »

    Nothing would be better than for Elon Musk to buy Twitter and then kill it. Take it off line. Delete it. Make it go away.

    What is the point anymore? Like some aged European monarchy, the service has become too inbred to say anything useful. It consists now as a giant push survey, claiming the appearance of action equals action. Even the poltergeist of Twitter, cancelation of people, is like a magic spell that you have to believe in for it to work. Live outside the Twitter demographic and it does not matter. Listening to people talk, you’d think Twitter had the power to raise the dead, or more often, the opposite. Twitter is the physical embodiment of what Glenn Greenwald describes as Democrats criminalizing opposition to their party and ideology. Dissenting ideas are “disinformation” and must be censored. Trump voters are inherently criminal (“insurrectionists”) and should be imprisoned or at least banished for thought crimes.

    Recently rewatching Michael Moore’s Fahrenheit 11/9, it is obvious the 2018 film is mainly a screed about all the bad things Trump was going to do as president. Time is a cold witch of a mistress: basically nothing Moore predicted four years ago about what was going to happen actually happened. Moore was wrong about Trump’s ties to Russia, Moore was wrong about Trump being the last elected president because he would seize total power, and Moore was wrong about the lasting impact of the progressive Twitter heroes of the year, the Parkland High School survivors.

    You do remember the mass shooting in a Parkland, Florida high school, right? A handful of “survivors” were insta-made into social media sensations by presenting their views on gun control unopposed and uncommented on. In his film Moore portrayed the kids were examples of an anti-Trump force sent by the universe to Tweet as a balancing mechanism, and that the power of their online activism was America’s only chance to remain a democracy free of daily massacres. You can’t do justice to the hyperbole of Moore’s narration in print; you would think by listening these kids had the power to change something simply by amassing RTs on Twitter. A good chunk of the movie is just Moore staring at the kids changing everything fascistic in the world by being online, the filmmaker’s expression somewhere between pedophile on the playground fence and a proud dad.

    One can imagine Moore’s reaction if he was still relevant enough to quote to Musk’s impending takeover of Twitter as a twist on the absurd: Musk will have too much power to make Twitter into anything he wants, even a full-on bastion of unfettered speech. Instead of relaying on the Terms of Service to ensure people like the Parkland Kids face no opposition online, Moore might worry just the opposite, that the opposition, left to its own point making, might overwhelm the dumbass ideas that tend to come from 16-year-olds handed a very big microphone with no supervision. For those new here, that is the point, to allow better ideas to overwhelm poor ideas.

    Have a look at what Twitter had done in the name of “free speech” and ending “misinformation,” the rallying cries now of so-called progressives. Twitter took an entire subject of critical interest, Hunter Biden, off the media menu and thus out of public viewing just prior to the last presidential election. Twitter silenced the loudest voices of opposition to the Democrats, people like Donald Trump himself and others like Alex Jones and Marjorie Taylor Greene. Call them what you want to, the idea in a free country is you’d have the opportunity to hear what they had to say if you wished to or maybe encounter speech that made you rethink your own views by accident (protip: that’s a cornerstone of Jeffersonian democracy, oh wait, Jefferson is on the outs now, too, sorry.)

    Twitter also found cause to black out the satire site Babylon Bee and Libs of TikTok. The Bee’s violation? Naming transperson Rachel Levine its “Man of the Year.” Libs of TikTok only reposted clips from left-wing users on social media, including from drag queens and gay and transgender activists but that too was too much. Things got so stupid that Trump Derangement Post Child Robert Reich in his role as the Rob Reiner of faux-intellectuals tweeted, “When multi-billionaires take control of our most vital platforms for communication, it’s not a win for free speech. It’s a win for oligarchy.”

    “We are calling for careful content moderation that balances the important ideals of democracy, free expression, and public health and safety,” said Jessica González, co-CEO of Free Press, a media advocacy organization. Imagine that,  a group which says its supports a free press demanding censorship. But why pull punches — Politico wonders “If Musk sticks with his word and removes most of the content moderation rules in place, which could include those that ban hate speech, extremism and vaccine and election misinformation — it may turn into a platform that poses a threat to democracy.”

    Irony aside, look what they are afraid of: unfettered free speech brought to you by one of the few men rich enough to pay for it for us.

    And that’s why Musk should instead kill off Twitter, and any other social media he can acquire. His legacy would not be to be the oligarch who gave us a smatter of free speech but the oligarch that helped break the grip oligarchs, whether progressive or otherwise, now have on our speech. Burn Twitter to the ground to save it, er, us, from any attempts to adjudicate further what we can read and listen to. If a social media outlet can’t present a democratic platform in a democratic way (i.e., without a rich guy paying our way to freedom like an abolitionists buying slaves only to set them loose) then we should not want it. We’ve gone too far in turning “content moderation” into crude censorship and viewpoint discrimination.

    Public forums need to just that, public. You do not achieve free speech via censorship no matter who wields the red pencil. Musk can’t change that we’ve reached a point in democracy’s evolution where some half of us fear free speech, but there it is. His contribution is to kill the beast that Twitter has become, and hope something more democratic rises in its place.

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    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 Ashley Biden Problem

    October 7, 2022 // 1 Comment »

    It used to be called the “New York Times Problem.” It asks at what point does the First Amendment stop protecting journalists against the receipt of stolen property, particularly classified documents. It stems originally from the Pentagon Papers, a classified history of the Vietnam War stolen by Daniel Ellsberg and handed over to the Times and later others. The government sought prison time for reporters and editors but failed. What once threatened the New York Times has now been turned directly against Project Veritas, Ashley Biden’s diary, and perhaps Julian Assange.

    The goal out of the tangled case outlined below is to create two standards for applying the 1A, one for journalists and one for “journalists” ostensibly based on skill and reputation but in reality based on politics. It is a direct challenge to freedom of the press by Biden’s DOJ.

    In June 2020, a woman and a man moved into a Delray Beach, Florida house where Ashley Biden, President Joe Biden’s daughter, previously resided and where she’d left several items, including a diary. The diary mentioned, among other things, “inappropriate” showers taken together by daughter Ashley and Joe (whom Hunter Biden at one point appeared elsewhere to refer to as “Pedo Pete.”) Potentially important stuff, though the woman who found them failed to interest the Trump campaign. She then tried Project Veritas. Veritas paid for the diary holder to meet with their staffers in New York, inspected the diary and paid for it, only to ultimately decide not to publish it. Veritas turned the diary over to law enforcement as unverified (the diary was eventually published by a less-well known site.)

    Though Veritas never published the diary, the New York Times Problem came into play — does the 1A protect media outlets who receive or even pay for stolen property, i.e., the Pentagon Papers and Ashley Biden’s diary? Obviously taking in stolen goods, say a diamond watch or purloined car, is a crime. But with snatched or stolen documents of public interest, in steps the First Amendment, which has been held to protect journalists in these cases. This is also why the New York Times Problem has more recently been called the Julian Assange Problem in that Assange never stole any documents himself — that was Chelsea Manning — and only published what he was handed. Any prosecution of Assange would be as a publisher, a clear rub against the 1A and the key issue in any trial that someday may be held.

    That’s where the Veritas case should have ended, with the feds doing nothing. Plenty of stolen documents (there is also the open question about whether finding Biden’s diary left behind in an rental house constitutes theft at all) are published all the time by American media outlets, including Trump’s tax returns in the Times and Edward Snowden’s bombastic NSA source materials in the Washington Post. It is an essential part of a free press and protected by the 1A.

    But DOJ did not stop with Veritas, who after all did not even publish any of the allegedly stolen documents. The FBI instead conducted a predawn search in November 2021 against Project Veritas founder James O’Keefe’s home and similar raids on two associates to take possession of their cell phones and journalistic notes. The raid warrants cited concerns over the stolen Biden diary. In response, University of Minnesota law professor Jane Kirtley, a former executive director of the Reporters Committee for Freedom of the Press, said “I’m not a big fan of Project Veritas, but this is just over the top. I hope they [the FBI] get a serious reprimand from the court because I think this is just wrong.”

    O’Keefe’s lawyers complained the raid unfairly denied him the legal protections afforded to journalists. “The Department of Justice’s use of a search warrant to seize a reporter’s notes and work product violates decades of established Supreme Court precedent,” O’Keefe’s lawyer wrote. The search also appears to violate the Privacy Protection Act, prohibiting searches and seizures of “any work product materials possessed by a person [person is undefined which gets around the issue of who is a “journalist”] reasonably believed to have a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication.”

    Court papers provided to the Project Veritas founder when his phones were seized indicate that his devices were taken as part of an investigation that prosecutors are conducting into potential conspiracy to traffic stolen goods across state lines — the Biden diary. This should send chills through First Amendment advocates because the Supreme Court ruled in 2001 that media outlets cannot be held liable for publishing information that may have been obtained illegally, as long as they themselves obtained the material legally.

    The Supreme Court case in question is 2001’s Bartnicki v. Vopper. A person intercepted and recorded a cell phone conversation between a union negotiator and the union president. Vopper, a radio commentator, played a tape of the intercepted conversation on his public affairs talk show. Petitioners filed a damages suit under wiretapping laws, alleging their conversation had been surreptitiously intercepted by an unknown person and the radio station repeatedly published the conversation even though they had reason to know that it had been illegally intercepted. The court ultimately held the First Amendment protected the disclosures and the radio station did not violate the law. “A stranger’s illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern,” concluded Justice John Paul Stevens in Bartnicki v. Vopper. So why not the same with Project Veritas?

    Loose in the Veritas case is a charging Department of Justice, who said the two people who tried to sell Veritas the diary were guilty of moving stolen property across state lines. More importantly the DOJ a) got the two to plead guilty to moving stolen property and b) contended Veritas paid them $40,000 and told them to go back into the house and look for more Ashley Biden materials (Veritas says they did not do this.) The latter point is key, because the protections of Bartnicki v. Vopper require the media to be passive. It cannot help “steal” things to later publish. FYI, the latter could form the bulk of any prosecution against Julian Assange, i.e., the claim he assisted Chelsea Manning by providing technical advice in stealing (“procurement”) all the classified documents she did. Such assistance, as alleged in the Veritas case, could eliminate the 1A protections (see Peavy v. WFAA-TV.)

    What does it all mean? Project Veritas is being punished for practicing journalism and its 1A rights are being violated. Veritas met with sources who had obtained Ashley Biden’s diary. It was irrelevant whether they did so legally. Veritas’ journalists’ homes were searched, its sources charged with an interstate federal crime, and Veritas itself is being set up for procuring “stolen” material. If DOJ is successful in its efforts, this would see a double-standard emerge for the New York Times Problem, one liberal standard that allows major new outlets like the Times and Post the freedom to publish stolen documents and one more conservative which restricts that type of publishing when the outlet is more amateur and less well know, like Veritas.

    As James O’Keefe’s lawyer stated a“ journalist’s lawful receipt of material later alleged to be stolen is routine, commonplace, and protected by the First Amendment.” This all has the makings of a clear First Amendment violation by the Biden Administration and in light of the pending case against Julian Assange, also has long-reaching consequences.

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    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

    Yeshiva University v. The LGBT Club, Victory for the 1A

    October 6, 2022 // 2 Comments »

    The Supreme Court is poised to grant a victory to religious conservatives via the First Amendment in blocking recognition of an LGBT club at Yeshiva University. Yeshiva is a Jewish law school which objects to the club on religious grounds. This is important news for other religious schools across America facing similar legal challenges.

    Though the Court as an intermittent step referred the case back to the lower courts as Yeshiva University v. YU Pride Alliance, Justices Samuel Alito, Clarence Thomas, Neil Gorsuch, and Amy Coney Barrett made no bones in their dissent that they would stand with the 1A when the full case comes before the Supreme Court, as it is expected the lower courts will demand Yeshiva recognize and fund the club. The Court refused to hear the case on an expedited basis, ordering instead that it first exhaust options in other, lower courts. Alito, et al, objected to that 5-4 procedural decision and telegraphed their ultimate response via dissent once they get the full case.

    The issue is simple: Yeshiva University wants to deny recognition of an LGBT club (YU Pride Alliance), claiming their foundational values as written in the Torah do not support that. The club claims it is being discriminated against, as other non-religious groups can form clubs. At issue is the 1A versus Title IX and other “human rights” laws.

    Alito argues the courts have no right to use the power of the state to compel Yeshiva to host the club. “Does the First Amendment permit a State to force a Jewish school to instruct its students in accordance with an interpretation of the Torah that the school has concluded is incorrect? Surely ‘no.’” He rejects the idea religion is being used to support bigotry, and sticks with a conservative view of the 1A saying government should not impose itself on religion in this case. The court’s duty, wrote Alito, “is to stand up for the Constitution even when doing so is controversial.” Alito went further, stating “At least four of us are likely to vote to grant” review if the university loses on its First Amendment arguments on appeal, and Yeshiva will likely win if its case came before us. A State’s imposition of its own mandatory interpretation of scripture is a shocking development that calls out for review. The Free Exercise Clause protects the ability of religious schools to educate in accordance with their faith.” One progressive outlet called what many conservatives would consider a promise of future justice an “implicit threat.”

    The balance between the 1A and Title IX (i.e., human rights, in this case New York law) has always been tricky. To protect religious freedom, the federal Department of Education has granted exemptions to 120 religious colleges and universities to practice their religious tenets, even when they conflict with protected LGBT and other “human rights.” The New York courts have held for schools like Yeshiva (a law school, not purely a religious training school or seminary) the 1A should cover only those parts of the school’s business which directly constitute religious acts, and allow secular law to cover the secular part of the school. Specifically, New York said Yeshiva violated New York City’s human rights law. That law prohibits “public accommodations” – places that are open to the public – from discriminating based on sexual orientation and gender identity. Despite its Jewish orientation, Yeshiva admits students of any religion, the “public” part. Yeshiva came to the Supreme Court, calling the ruling an “unprecedented intrusion into church autonomy.”

    In siding with Yeshiva, Alito is also going after bigger fish, looking to weaken or overturn Employment Division v. Smith. In that case the Supreme Court held that religious objectors typically must follow all “neutral laws of general applicability” (though racial discrimination is still prohibited.)  Alito claims that New York’s human rights law is not neutral or generally applicable because it does not apply to “benevolent orders,” i.e., “any club which proves that it is in its nature distinctly private.”

    Carveouts from civil rights laws for private clubs are common. The federal law banning businesses that offer their services to the public from engaging in many forms of discrimination (bakers who refuse to make cakes for gay couples, for example) exempts “a private club or other establishment not in fact open to the public.” It is likely the First Amendment, which grants rights of free association to membership organizations that do not apply to public businesses, forbids states from enacting anti-discrimination laws that require genuinely private clubs to accept members they do not want to accept.

    Alito, in other words, is saying in his dissent if a state enacts an anti-discrimination law that exempts private clubs, then it must also exempt religious objectors from that law. In practice, that means Alito would give all religious objectors fairly sweeping exemptions from huge swaths of anti-discrimination law, including those at Yeshiva University who object to an LGBT club on campus. Weakening Employment Division v. Smith would open the door wider for private religious schools to decide which organizations they wished to recognize without having to apply to the federal Department of Education for an exemption. It would be a victory for the First Amendment, and a victory for religious rights over “human rights.”

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    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

    BLM License Plate Rocks Hawaii

    September 20, 2022 // 4 Comments »

    If politics makes strange bedfellows, defending free speech sends one down some equally odd paths. The 1A and laws protecting speech exist for every thing that can be said, but end up being tested at the margins of what society tolerates in the name of free speech. A recent case in Hawaii, involving a car license plate, is a perfect example.

    Like most states, Hawaii issues specialty/vanity license plates where the owner can chose his own letters or numbers. The only restrictions are the letters/numbers not be “misleading” or “publicly objectionable.” Otherwise pick your combination, pay the fee, and you have your unique license plate, such as LUV YOU. That was the plan of Edward Odquina, who runs a web site named www.fckblm.org in support of his media business that shares those same initials, Film Consulting Krav Maga BLooMberg. Odquina also elsewhere on his site claims the initials stand for Fight Communism & Knuckleheads Bitch Liberal Marxists. He also does not care much for the Black Lives Matter movement. He applied for, and was issued in 2021, a FCKBLM car license plate which he displays on his vehicle alongside a Trump 2024 placard and other patriotic insignia.

    At some point the state of Hawaii claims it received unspecified “complaints,” and Odquina was ordered to surrender the plate. He refused. Until he does give in, he cannot renew his car registration and is subject to citation and seizure of his vehicle. Odquina filed a lawsuit against the county and its attorney general, claiming they infringed on his First Amendment right to free expression.

    Specifically, the 23 page lawsuit claims Hawaiian authorities failed to define the terms “misleading” or “publicly objectionable.” He further holds that his application for FCKBLM was approved and the plate was issued, and that the law includes nothing in it to allow that decision to be re-reviewed if “complaints” are received even though a complaint phone line exists.

    The core of the suit focuses on the Hawaii statute restricting messages allowed on personalized plates as being overly broad (a “void for vagueness” says the filing), and that the state, city, and county have all failed to adopt administrative rules to define such terms and create a process for making determinations. Instead, the suit says, the city and state have created a process allowing bureaucrats to make the determinations based on their individual and personal opinions with no recourse or remedy. The suit asks the court for an order to prevent the government officials from enforcing a ban on “misleading or publicly objectionable” license plates until new rules and procedures can be created.

    “He wants to be able to express himself, which is what the statute allows, the statute allows that you can pick any six letters, up to six letters, and any combination that you want to convey a message,” said Odquina’s attorney Kevin O’Grady. O’Grady says his client disagrees with Black Lives Matter’s positions and is also using the license plate to promote his business. At issue is viewpoint (content) discrimination, when a state offers a venue, such as specialty license plates, for some groups to convey their messages, but does not permit others like Odquina to express their views. Presumably Hawaii would not object to YEA BLM.

    Odquina has precedent on his side when it comes to courts striking down state and local government restrictions on laws banning offensive license plates. In 2020, a federal judge struck down a similar law to Hawaii’s in California after it was challenged by people who had been denied requests for plates.

    The California case shows that that state has a much more extensive and well defined list of things that it considers misleading or objectionable compared to Hawaii, including terms with sexual connotations, of lust or depravity, or vulgar terms, a term of contempt, prejudice, or hostility, an insulting or degrading term, a racially or ethnically degrading term or is a swear word or term considered profane, obscene, or repulsive, or has a negative connotation to a specific group, misrepresents a law enforcement entity or is a vulgar foreign or slang word. The California law goes on to specify procedures for adjudicating all that, including use of the Urban Dictionary and lists of gang symbols, and for how a plate may be taken back after issuance.

    Yet despite its bureaucratic thoroughness compared to Hawaii’s almost haiku-like rendering of the same intent, California lost its case. In ruling against the state, the District Court judge wrote the Supreme Court has repeatedly held “the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers.” The plaintiffs were allowed to keep their plates OGWOOLF, SLAAYRR and QUEER. BO11LUX was still rejected because the configuration “has a discernable sexual connotation or may be construed to be of a sexual nature.”

    The issue is ripe for another pass by the Supreme Court. A New Hampshire court ruled in 2014 that the state couldn’t ban a plate that read COPS LIE. A Rhode Island judge ruled that a motorist had the right to display a license plate that read FKGAS.  But Texas was able to bar FU COVID, NOPENIS, and CNN LIES from its vanity license plates. Then again, Maine allowed KISMYAS.

    The critical finding in the California case is that license plates are to be consider private speech, a statement by the user protected by the 1A, and not an expression of government, even though they are technically government property. The court held that the government by making vanity plates available for sale gave citizens the right to consider what they say as private expression of opinion or support. The court said any restrictions on that expression must be both viewpoint neutral and reasonable. This is in contrast to the Supreme Court, which held specialty license plates are government speech, immune from First Amendment challenges, thus setting up one of the principle legal tussles Hawaii and Odquina will enjoin — whose speech is it, his or the government’s? Odquina meanwhile continues to drive around town expressing himself.

     

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    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

    China vs. U.S.: Privacy for Whom?

    September 13, 2022 // 3 Comments »

    The New York Times ran an article on the use of surveillance tech in China. One wishes they would do the same for the U.S.

    The NYT article came to some scary conclusions about autocratic China. Chinese authorities implement facial recognition tech everywhere they can, the police seek to connect electronic activity (making a call) to physical location, biometric information such as fingerprint and DNA is collected on a mass scale, and the government wants to tie together all of this data to build comprehensive profiles on troublesome citizens. The latter is the Holy Grail of surveillance, a single source to know all there is known about a person.

    Should the Times (or China) wish to expand its review of invasive government surveillance technology, particularly those technologies which integrate multiple systems, it need look no further than its hometown police force, the NYPD, and data aggregated into the little-known Consular Consolidated Database (CCD) by the U.S. State Department.

    Prior to 2021, when the New York City Council passed the Public Oversight of Surveillance Technology (POST) Act, citizens were left to piece together the various technologies used to surveil them based on scattered media reports. We know now the NYPD deploys facial recognition surveillance (and can retroactively employ facial recognition against video saved from one of 20,000 cameras), x-ray vansStingraysShotSpotters, and drones, among others, equipment all originally deployed in the Iraq and Afghan wars. But we still don’t know how many of these technologies are used in coordination with each other, and, as in China, that is the key to understanding their real effectiveness.

    POST reporting and other sources offer some clues. The NYPD uses the smartphone-based Domain Awareness System (DAS), “one of the world’s largest networks of cameras, license plate readers, and radiological censors,” all created by Microsoft with video analytics by IBM. DAS also utilizes auto­mated license plate read­er (ALPRs) devices attached to police cars or fixed on poles to capture the license plates of all cars passing by. ALPRs can also capture photo­graphs of cars, along with photos of the driver and passen­gers. This inform­a­tion is uploaded to a data­base where it can be analyzed to study move­ments, asso­ci­ations, and rela­tion­ships. Facial Iden­ti­fic­a­tion can then run photos, includ­ing from data­bases of arrest photos, juven­ile arrest photos of chil­dren as young as 11, and photos connec­ted to handgun permits. The system analyzes an image against those data­bases and gener­ates poten­tial matches in real-time.

    Included in DAS is a translator application which helps officers communicate with community members who do not speak English, while of course also recording and storing their remarks. DAS ties in to ShotSpotter, a technology developed for the Iraq War which pinpoints the sound of gunfire with real-time locations, even when no one calls 911. This technology triangulates where a shooting occurred and alerts police officers to the scene, letting them know relevant information, including the number of shots fired, if the shooter was moving at the time of the incident (e.g., in a vehicle), and the direction of the shooter’s movement. DNA data can also be accessed, so wide-spread collection is a must. One area of activity outlined in Chief of Detect­ives Memo #17 instruc­ts on how to collect “aban­doned” DNA samples from objects such as water bottles, gum, and apple cores. For example, police officers are taught to wait for the suspect to take a drink or smoke, and collect the sample once a suspect throws the cup or butt away.

    What is deployed in New York to aggregate sensor and bio data (including social media monitoring and cell phone locator services, which when tied to facial recognition can identify individuals, say who attend a protest, visit an AIDs clinic, etc.) will no doubt be coming soon to your town as the weapons of war all come home. The next step would be to tie together cities into regional and then state-wide networks. The extent to which inform­a­tion obtained from DAS is shared with federal agen­cies, such as immig­ra­tion author­it­ies, remains unknown. What we do know is the phrase “reasonable expectation of privacy” needs some updating.

    Perhaps the largest known data aggregator within the Federal government is the innocent-sounding Consular Consolidated Database (CCD) administered by the U.S. Department of State. Originally a simple database created in the 1990s to track visa and passport issuances, the CCD is now one of the largest global databases of personal information, growing at a rate of some 35,000 records a day. The system collects data from both foreign visa applicants and American citizens to include but not limited to imagery for use with facial recognition, biometric data such as ten-fingerprint samples, home/business addresses, phone numbers, email addresses, financial information, race, gender, social security and alien registration numbers, passport information, certain Federal benefits, medical information, legal information, education information, family information, travel history, arrests and convictions, and social media indicators.

    The CCD is especially valuable in that it is a database of databases, pulling together information collected elsewhere including abroad, as well as from some commercial databases and public records, and making the aggregate available both for individual search by identifiers like name, social security number or facial recognition, but also for very large scale analytic searches to identify patterns and trends. This massive pool of data is then made accessible to the Department of Homeland Security, Department of Commerce, Department of Defense, Department of Justice, Office of Personnel Management, Federal Bureau of Investigation, and “other interagency partners” to include potentially intelligence services. In addition to the State Department, information is regularly input into the CCD by the FBI, the Integrated Automated Fingerprint Identification System, DEA, ICE, IRS, DOD, Treasury, Health and Human Services (HHS), DHS, Interpol, and U.S. Marshal Service (USMS.)

    Numbers of records held by CCD are not available, with the last public tallies documented in 2016 showing 290 million passport records on American citizens, 25 million records pertaining to American citizens living abroad, 184 million visa records of foreigners, and over 75 million photographs. Some 35,000 records are added to the CCD daily, so do the math given the existing tallies are up to 13 years old. As a point of comparison, Google’s database of landmark photos holds only five million records. The Library of Congress database lists 29 million books.

    The New York Times article about surveillance in China is scary, showing what a vast, interconnected system is capable of doing in exposing a person’s life to scrutiny. The Chinese authorities are, however, realistic about their technological limitations. According to one bidding document, the Ministry of Public Security, China’s top police agency, believed one of their biggest problems was data had not been centralized. That Chinese problem appears well on its way to resolution inside the United States, and that is also quite scary.

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    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

    Viewpoint Discrimination May Bring 1A to Social Media

    June 17, 2022 // 2 Comments »

    Later this year it is possible — not likely, but just possible — the Supreme Court might vote to take away social media platforms like Twitter and Facebook’s right to censor content. This would have the effect of granting some level of First Amendment protection, now unavailable, to conservative users of those platforms.

    The potential for change hinges on a law struck down by lower courts, Netchoice v. Paxton, which challenges Texas law HB 20. That law addresses social media companies with more than 50 million active users in the U.S., like Twitter, YouTube, and Facebook. It prohibits these companies from engaging in content moderation by declaring that they may not censor posts on the basis of viewpoint. If a platform does remove any content, it must notify the user and let them appeal the decision. These users can sue the company for imposing “viewpoint discrimination.” HB 20 also bars platforms from placing warning labels on users’ posts to inform viewers that they contain objectionable content. It imposes disclosure requirements, including a biannual transparency report.

    The law was shut down by lower courts, reinstated, then handed off to the Supreme Court as a shadow docket case (an informal term for the use of summary decisions by the Supreme Court without full oral argument) to decide. The Court refused to reinstate the law at this time, but with significant dissent. The case will likely be heard in full by the Court in the fall. The conservatives will get another try.

    Twitter, et al, acting collectively through trade associations, chose an interesting defense, claiming not simply that the 1A applies only to government censors (the standard defense to prevent 1A rights from applying to social media) but claiming their content moderation constitutes First Amendment–protected speech in and of itself. In other words, censoring stuff that passes through their platforms constitutes a 1A protected act by Twitter, and thus HB 20 violates Twitter’s 1A rights. The platforms argued laws like HB 20 constitute the government blocking Twitter’s free speech right to prevent its users from exercising their free speech rights, as censorship is an act of free speech.

    Twitter and its allies went on to argue to the Supreme Court “Social media platforms are internet websites that exercise editorial discretion over what content they disseminate and how such content is displayed to users.” That seems to rub right against Section 230 of the Communications Decency Act which protected social media platforms from the 1A by claiming they aren’t really “publishers” after all, just something akin to a conduit through which stuff (your tweets) flows.

    As such, the Communications Decency Act argues, they are closer to common carriers, like the phone company, who could care less what you talk about in your call to Aunt Josie. But with the common carrier argument coming closer and closer to implying social media has no right to censor (in other words, they can’t have it both ways. They can’t not be responsible for defamatory material on their sites and they can’t claim immunity from the First Amendment stopping them more censoring certain viewpoints. Imagine the phone company saying they are not responsible for you calling Aunt Josie a hag but they also want to censor your conversation for using the “hate speech” term “hag.” In other other words, Twitter is either a publisher and like the New York Times and can exercise editorial discretion/censor but is responsible for what it publishes or it is not and like the phone company it cannot censor but it is not responsible for its own content.

    In his dissent to the Court’s decision to stay HB 20, Justice Alito (joined by Justices Thomas and Gorsuch; Justice Kagan also dissented but did not join Alito’s opinion or write her own), notes the indecision by Twitter, et al, on whether they are publishers, but says their desire to censor (i.e., to have 1A rights of their own) means they must be publishers. But if they want to insist they are not publishers, they are common carriers and do not have a right to censor. Pick one.

    Alito is well aware of the recent history of social media censorship, which has egregiously sought to block and cancel nearly-exclusively right-of-center persons. Facebook and others like it have become the censors the Founding Fathers especially feared, as one political party benefits disproportionately. Donald Trump was driven off social media as a sitting president. What should have been one of the biggest stories of the 2020 election, the Hunter Biden laptop tale, was disappeared to favor Democratic candidate Joe Biden. Social commentators like Alex Jones and Scott Horton were banned. Marjorie Taylor Greene was suspended. Of all the Members of the House banned from social media, every single one is a Republican. Size matters; banning the head of the Republican party, Donald Trump, and banning a local Democratic councilman in Iowa are not 1:1. What is being censored is not content per se (a photo, a news story) but whole points of view, in this case conservative thought itself.

    Viewpoint discrimination is particularly disfavored by the courts. When a censor engages in content discrimination, he is restricting speech on a given subject matter. When he engages in viewpoint discrimination, he is singling out a particular opinion or perspective on that subject matter for treatment unlike that given to other viewpoints. For example, if the government banned all speech on abortion, it would be a content-based regulation. But if the the government banned only speech that criticized abortion, it would be a viewpoint-based. Because the government is essentially taking sides in a debate when it engages in viewpoint discrimination and shutting down the marketplace of ideas which is the whole dang point of free speech, the Supreme Court has held viewpoint-based restrictions to be especially offensive to the First Amendment. Such restrictions are treated as presumptively unconstitutional.

    So when HB 20 comes before the Court as a full case with oral arguments in the fall, the lines are drawn. Twitter, must et al, appear ready to admit they are “publishers” (and likely shed the protections of Section 230) to retain a publisher’s right under the First Amendment to decide what to publish (and conversely what to censor.) Alito seems to be suggesting if that is the argument, then yes, let the First Amendment apply but it must apply to Twitter, et al, in its entirety. Social media cannot claim a constitutional right to censor as a publisher and then abuse that right by engaging in viewpoint discrimination. Social media may have boxed themselves into a corner where they are constitutionally required to present both sides of an issue to preserve their right to censor one side more than the other.

    So what are you, Twitter? You can no longer operate behind the illusion of democracy. Careful what you choose… are you a dumb pipe down which information flows and therefore cannot censor? Or are you a publisher with 1A rights which you use to stomp out one particular viewpoint?

    If the latter, Texas HB 20 may be the needed relief to protect the modern town square and the Supreme Court may approve its constitutionality this autumn.

     

     

     

     

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    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

    Answering Gov. Hochul on Buffalo: Free Speech Does Not Contribute to Mass Shootings

    May 22, 2022 // 3 Comments »

    If classic horror resides in the banality of evil, modern horror resides in the banality of predictability: a deranged man, driven by hate, kills and the Left seizes the opportunity to try and restrict speech, claiming not metal music, not Alex Jones, but social media, spurred the shooter from basement to killing ground. This risks the loss of speech rights out of fear.

    Almost literally as the bodies cooled on the ground in Buffalo, New York’s Governor Kathy Hochul blamed social media and called for speech restrictions as the means of preventing another tragedy. Hochul, citing some of the shooter’s online postings, specifically claimed free speech had gone too far when it allowed someone to shout fire in a crowded theatre for the shooter to hear. The governor pledged to “silence the voices of hatred and racism and white supremacy all over the internet.” She went on to call for “national laws” against speech in the long run, and wants to hide behind the corporate veil in the meantime, demanding tech CEOs remove radicalizing content like the Buffalo shooter suspect’s “bone-chilling” manifesto.

    The answer to gun violence in Hochul’s mind is to censor to eliminate hate speech. The answer for a democracy clinging to its free speech rights in the face of such challenges lies in critical Supreme Court decisions.

    A democracy can’t lock up everyone who stirs up a crowd, even if they use the N-word or other hateful speech to do so. Speech which inspires or motivates cannot be illegal as it is the very stuff of democracy. While in no way supporting the racial thoughts of the Buffalo shooter, it is important to remember that at various times in our nation’s history people sought to silence those who wanted to stir a crowd to rise against slavery, oppose war, or demand voting rights for women. At the same time the 1A protects the words of a speaker, it also protects him from the actions of whatever people who heard him talk did later.
    The first try at restricting “dangerous speech” was Schenck v. United Stateswhich produced Hochul’s misunderstood line about not shouting fire in a crowded theatre. It would be for the later case of Brandenburg v. Ohio (Clarence Brandenburg was an KKK leader who used the N-word with malice) which Hochul does not appear to have read, to refine the modern standard for restricting speech. It tightened the criteria to 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. Brandenburg is the Supreme Court’s final statement to date on what government may do about speech that seeks to incite others to lawless action.

    The key to Brandenburg is intent. You have to prove, not just speculate, the speaker wanted to cause violence. 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 action against a speaker. The speaker had to clearly want to cause some specific illegal act and set out to find the words to make that happen. Now whatever the Buffalo shooter wrote or read online may have indeed fit such standards, but you can be damn sure Governor Hochul had no idea of the details as she stood demanding censorship.

    What Hochul was instead selling was fear, herself seeking to encourage people to support censorship out of fear. Just guessing what the Buffalo shooter might have written (his “manifesto” was quickly pulled off line) would make it hard to disagree on the surface with Hochul. But we all know where censorship immediately leads Democrats — no free speech around vaccine questions, or Covid origins, or Hunter Biden’s laptop. Hypocrisy is the name of the game, and so protests at Supreme Court judges’ homes and Antifa violence against cops seems justified whereas people opposing abortion are silenced. It was Donald Trump and Alex Jones and the NY Post censored off Twitter after all, not Kathy Hochul and Chuck Todd and WaPo.

    Hochul fails to grasp there are no laws against “hate speech.” A speaker can insult by race, sexual orientation or religious beliefs. What many people think and say is carefully thought out to promote hate, to appeal to crude and base instincts. Indeed, that is their point. Even restrictions on “hate speech” meant to prevent violence (above) often cited as the justification to restrict such speech, are by design extremely narrow. The 1A is content-neutral, protecting the right to speech itself independent of the content or value of that speech.

    Sometime an example removed from the fire in the belly Hochul seeks to exploit better proves the case. Matal v. Tam focused on an all-Asian band called The Slants, who wanted to trademark their name. “Slant” of course is one of a dictionary full of racist terms used to offend Asians, and the group wanted to push the word into the world’s face to disarm it, as gay men have done with the slur queer. The Patent and Trademark Office said no, the group could not trademark the name because of the disparagement clause, which denies federal trademark protection to messages that may offend people, living or dead, along with “institutions, beliefs or national symbols.”

    The First Amendment protects offensive speech, such as the band’s racist name, Justice Samuel Alito wrote in the decision. “The proudest boast of our free speech jurisprudence is that we protect the freedom to express ‘the thought that we hate,’” he said, quoting Justice Oliver Wendell Holmes. “The danger of viewpoint discrimination,” Justice Anthony Kennedy wrote in The Slants’ case, “is that the government is attempting to remove certain ideas or perspectives from a broader debate. That danger is all the greater if the ideas or perspectives are ones a particular audience might think offensive, at least at first hearing. To permit viewpoint discrimination in this context is to permit government censorship.”

    The Buffalo massacre remains a horrific stain on America, and the shooter a mentally ill killer now awaiting punishment. What it does not represent is an excuse to promote censorship, or a chance to revisit “hate speech” as some sort of new category of bannable speech. The idea a killer sat content enough in his basement until absently running across some social media post and then being driven to travel hundreds of miles to take innocent lives is absurd. A terrible act should never double down on its inherent horror by serving as an excuse to reduce speech rights in America.

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    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

    Sarah Palin v. New York Times v. and the First Amendment

    February 19, 2022 // 7 Comments »

    What is Sarah Palin up to suing the New York Times for libel? Is she really trying to change the First Amendment and does she know what she is doing?

    Palin v. The New York Times Company is now before a district court in New York, and no matter the verdict is also certainly headed for the Supreme Court. It seeks to overturn precedent from 1964 that gave America some of the world’s strictest libel laws, laws which depending on which way the wind is blowing (i.e., if the media is red or blue and if the offended politician is red or blue) either allow for fake news and misinformation, or protect the 1A rights of a free press. So oh yes, the Palin case is political.

    The story began on June 14, 2017, when a left-wing activist shot at Republican politicians playing baseball on a field in Virginia (wounding, among others, Louisiana’s Steve Scalise). The NYT wrote “Was this attack evidence of how vicious American politics has become? Probably. In 2011, when Jared Lee Loughner opened fire in a supermarket parking lot, grievously wounding Representative Gabby Giffords and killing six people, including a 9-year-old-girl, the link to political incitement was clear. Before the shooting, Sarah Palin’s political action committee circulated a map of targeted electoral districts that put Ms. Giffords and 19 other Democrats under stylized cross hairs.”

    The Times quickly issued multiple “corrections,” pointing out it had “incorrectly stated that a link existed between political rhetoric and the 2011 shooting of Representative Gabby Giffords. In fact, no such link was established. The editorial also incorrectly described a map distributed by [Palin’s] political action committee before that shooting. It depicted electoral districts, not individual Democratic lawmakers, beneath stylized cross hairs.”

    Palin filed a libel suit, quickly dismissed, stating the Times defamed her in claiming her PAC’s advertising somehow incited people to violence, and the Times darn well knew it was not true. After five years of wrangling, Palin got the case reinstated and it is now ongoing in New York.

    Under current law, four standards have to be met to succeed. Palin has to show 1) what the Times wrote was false. Not in contention, they knew it and issued corrections; 2) the article specifically referred to Palin; yep.  3) That what the Times wrote was defamatory, which caused Palin harm and 4) the Times knew what it published was false or that in publishing them it showed a reckless disregard for the truth. Number 4 refers to the standard of “actual malice.”

     

    The standard for libel cases between the media and public figures goes back to 1964’s Sullivan v. The New York Times Company, when the Court held the First Amendment protects media even when they publish false statements, as long as they did not act with “actual malice.” What happened was civil rights leaders had run a full-page fund raising ad in the Times, describing in detail what they called “an unprecedented wave of terror” of police actions against peaceful demonstrators in Montgomery, Alabama. Not all the bad things they accused the cops of doing were true, and made the police look worse then they were. So L.B. Sullivan, in charge of the police response in Montgomery, sued the New York Times for libel, claiming they printed something they knew was false and harm his reputation. In an Alabama court, Sullivan won and the New York Times was ordered to pay $500,000 in damages.

    The Times appealed to the Supreme Court and won. In greater context, Sullivan freed northern journalists to aggressively cover racial issues in the south, shielded from the threat of libel suits. It represented a significant broadening of the 1A.

    The Times argued broadly if a newspaper had to check the accuracy of every criticism of every public official, a free press would be severely limited, and that the 1A required the margin of error to fall on the side of the media in the cases of public officials (things work differently if both parties are private citizens.) The Court responded by creating a new standard for libel of a public figure, “actual malice” defined in short as having the knowledge that something was false or published with “reckless disregard” for truth. Justice William Brennan asserted America’s “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.” Free and open debate about the conduct of public officials, the Court reasoned, was more important than occasional, factual errors that might damage officials’ reputations.

    The standards laid out in Sullivan are why the New York Times has not lost a libel case in America ever since.

    In the Palin case, to avoid disturbing the precedent, the Times is arguing their article did no harm to Sarah Palin. She continues to bop around the national political arena doing whatever it is she does. Palin’s side is leaning on the precedent directly, arguing the Times had no evidence whatsoever that her PAC had incited anyone, never mind the instant shooting case, and that the Times employee who wrote the original article thus exhibited “reckless disregard” for the truth and claimed “the reason he didn’t check these facts is simple. He didn’t care.” The case is in early days, but everyone already can map out what the arguments are going to have to be, based on the criteria in Sullivan.

     

    A lot of journalistic slush has flowed downhill since Sullivan in 1964, and attitudes toward trusting the media have changed. The media of 1964 set themselves the goal of objectivity, or at least the appearance thereof. In 2022 places like the NYT wear their partisanship as a badge of honor, and they overtly mock and hate people like Sarah “Caribou Barbie” Palin. They spend years wallowing in stories of far-reaching importance with reckless disregard for the truth, whether that be fake WMDs in Iraq to kick off a war, or Russiagate to try to bring down a president. The glory days of the Pentagon Papers, or the meticulous reporting on Watergate, are long, long gone.

    The Supreme Court which wrote Sullivan is also long gone. Completely separate from Palin’s lawsuit, last year Justice Neil Gorsuch added his voice to an earlier statement by Justice Clarence Thomas and questioned the standards set in Sullivan. Thomas, in a libel case dissent, specifically scolded the media over conspiracy theories and disinformation. He cited news reports on “the shooting at a pizza shop rumored to be the home of a Satanic child sex abuse ring involving ” and a NYT article involving “online posts falsely labeling someone a thief, a fraudster and a pedophile.” Thomas wrote that “instead of continuing to insulate those who perpetrate lies from traditional remedies like libel suits, we should give them only the protection the First Amendment requires.”

    Siding with Thomas, Justice Gorsuch reminded in his own recent dissent in 1964 media was dominated by a handful of large operations who routinely “employed legions of investigative reporters, editors, and fact checkers… Network news has since lost most of its viewers. With their fall has come the rise of 24-hour cable news and online media platforms that monetize anything that garners clicks.” Gorsuch is clear this requires a reassessment of Sullivan, and for the first time in a long time has a conservative majority court seated around him perhaps ready to do so. This all in the face of likely presidential candidate Donald Trump, whose criticism of libel laws, focused on Bob Woodward’s books about his presidency, is well-known.

    Sarah Palin’s case against the New York Times comes at this junction in history. It leaves many with a bad taste in their mouths, particularly those who generally support broader First Amendment rights. A ruling which lessens the standards in Sullivan and ultimately leaves Palin the winner (libel laws are technically state-level torts, but the Supreme Court defines the boundaries in line with the Constitution) would have a chilling affect on the media. Maybe not super-media like the Times which has money for lawyers and relishes a good 1A fight, but smaller outlets who could not afford to defend themselves. Everyone remembers the demise of Gawker.

    At the same time, if the Court rules against the Times and allows a new standard which encourages more public figures to sue, it will only be the media’s own fault. Given the freedom under Sullivan to have close calls always fall their way, too many in the MSM purposefully exploited that treasure, using the 1A as a dummy front for sensationalizing garbage and outright partisan propaganda. It is unlikely in a post-Sullivan world Russiagate would have become a three year media event. In that instance, as the truth was exposed and falsehoods revealed about even the minor players, their libel suits would have stopped the whole thing cold. As Justice Gorsuch wrote, the Sullivan standard Palin is contesting has offered an “ironclad subsidy for the publication of falsehoods” by a growing number of media that can disseminate sensational information with little regard for the truth. Maybe its time to change that.

     

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    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

    Two Truths, a Question and the Problem with Incitement

    January 14, 2022 // 9 Comments »


     
    One truth is the 2020 campaign never really ended. On paper Joe Biden became president and Donald Trump became a real estate developer again, but in reality Biden is simply a placeholder and Trump an active candidate for the presidency in 2024.

    A second truth is in the law, unlike in propaganda and journalism as it is practiced today, words have very precise and specific meanings. Terms like assault, for example are well-defined by decades of case law. You can write gobbledy guck about things like a “verbal microaggressive assault” but that’s just for the rubes; don’t expect the case to make it to court. The same for terms like incitement, hate speech, and conspiracy. Never mind terrorism, treason or sedition.

    The question is: after five years of failed, false accusations against Trump (Russiagate on down), how valid of an election strategy is it to twist vernacular definitions into quasi-legal ones? After so many instances of crying wolf (walls closing in, tick tock, etc,) will doing it all again over the events of January 6 actually win votes for the Democratic candidate, or will voters finally realize the Emperor’s arguments about Trump have no clothing and stay home?

     

    Absent some Pearl Harbor-scale event, it is difficult to see what the Dems can run on in 2024. It is unlikely the Democrats will emerge from the 2022 midterms with a new majority, meaning all of their domestic agenda promises are shot. They are likely to lose the battle over Roe, and accomplish little on immigration other than the half-arsed decision to stop enforcing immigration law on the southern border. Even if Mother Nature casts a vote and cleans up Covid somehow, it will be difficult for Democrats to take much credit. They have no clear plan for unfutzing the economy and any progress made will be seen as catch-up at best. Tearing down statues and appointing transpeople only goes so far.

    Their whole strategy for 2024 is to make people believe Trump tried to overthrow the Constitution on January 6, and having failed sulk away to embrace the electoral process and just run for president again. It’s a tough ask. Propaganda/journalism have failed to sway many minds. To succeed it’s going to require something real, an actual court finding Trump actually guilty of an actual crime that meets the expectations set after flinging around words like treason and sedition. Some goofy tax problem in a New York state court or empty process crimes like “conspiracy to…” which dragged the Russiagate mess, will not be enough.

    The issue? In the law, unlike in propaganda and journalism as it is practiced today, words have very precise and specific meanings. Problem One is there was no coup. Presided over by Trump non-accomplice Mike Pence, Congress did its job. Biden took office. Trump went home. The rioters went home. After a year of efforts none of the 700 some prosecutions have been for anything close to sedition or treason, mostly just fluffy versions of trespassing. None claimed they acted on orders from Trump, Don Jr. or the Pillow Guy. Despite all the over-blown Powerpoints and texts, there was no realistic path toward a coup taking place. That is a very high bar to climb over and prove something serious like treason. You need a fire to prove arson.

    So the Dems and media are left with some lawyering to do, in their minds the equivalent of taking down Al Capone on tax violations. The problem is Capone really did fail to pay taxes. Trump’s actions were instead legal under the First Amendment. The smoking gun can’t have been loaded with blanks.

     

    So the focus ends up on the one thing Trump actually did do on January 6, speak at the Stop the Steal rally. Dems argue his words constitute incitement. You can reread them, but it would be more productive to spend some time learning what actually is and is not incitement.

    A democracy can’t lock up everyone who stirs up a crowd. Speech which inspires, motivates or stirs up the blood cannot be illegal as it is the very stuff of democracy. Trump thought the election was unfair and had a Constitutional right to say so. Democracy could not exist if the law held every speaker responsible for whatever people who heard him talk did later. A finer line was needed.
    The first try at restricting “dangerous speech” was Schenck v. United States, which produced the misunderstood line about not shouting Fire! in a crowded theatre. It would be for the later case of Brandenburg v. Ohio to refine the modern standard for restricting speech. It tightened the criteria to 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. Brandenburg is the Supreme Court’s statement on what government may do about speech that seeks to incite others to lawless action.

    The key to Brandenburg is intent. You have to prove, not just speculate, the speaker wanted to cause violence. 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 action against a speaker. The speaker had to clearly want to cause some specific illegal act. You need to prove Trump wanted the crowd to attack the Capitol (he instead tells them to walk there and cheer on the legislators “who do the right thing” and “to peacefully and patriotically make your voices heard”) and set out to find the words to make that happen.

    In the 1982 Claiborne v. NAACP the Court ruled civil rights leaders were not responsible for a crowd which, after hearing them speak, burned down a white man’s store. The state’s argument, rejected by the Court, was that no matter how they disguised their codewords and dog whistles, the leaders just knew their inflammatory rhetoric would drive the crowd to violence. Nope, said the Court, the standard is simple, the actual words spoken.

    The law is similar for sedition, seeking to overthrow the government by force. This is intimately tied to the concept of free speech in that any true attempt at illegal overthrow, as well as any legitimate criticism of the government, will both include persuasion and stirring up of crowds. The line between criticizing the government and organizing for it to be overthrown is a critical juncture in a democracy. The law requires the government prove someone conspired to use force to overthrow the government. Simply advocating broadly for the use of violence is not the same thing as violence and in most cases is protected as free speech. That’s why no one from January 6 has been or will be charged with sedition or treason or anything similar. For example, suggesting the need for revolution “by any means necessary” is unlikely to be seen as conspiracy to overthrow the government by force. Actively planning such an action (distributing guns, working out the logistics, actively opposing lawful authority, etc.) could be considered sedition. But that’s not what happened with Trump on January 6.

    Most of the rest of the guff around Trump and January 6 is even emptier of substance, things like “giving aid or comfort” to those committing sedition, conspiracy to forcibly “prevent, hinder or delay the execution of any law of the United States, or corruptly impede any official proceeding. The Dems focus in this sphere is on what Trump did not do to stop the riot, particularly his taking three hours to issue a video request for the rioters to go home. The over-arching problem is that crimes generally require you to do something. Not doing things, or not doing them fast enough to the Dems satisfaction, is hardly a chargeable crime.

    The clearest sign there is nothing real behind the exaggerated claims surrounding January 6 is that after an impeachment, a calendar year passing, and 700 some low-level prosecutions, nothing much has been proven. As with Russiagate, the more time that passes with nothing but media-generated smoke the less likely there is anything more. Even die-hard Trump Derangement Syndrome sufferers like Laurence Tribe are reduced to weakly calling for more robust investigations instead of beating the drum for execution. Time for the left to lump Merrick Garland in with Robert Mueller as a great failure.

    There is certainly room to judge Trump’s actions on January 6. But that judgement must come from the voters, not a kangaroo court, if you want to talk about preserving the rule of law.

       

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    Posted in Democracy, Post-Constitution America

    Bad Times for the First Amendment

    October 23, 2021 // 8 Comments »

     

    These are bad times for the First Amendment.

    The very big picture is bad. Progressives woke up one morning to realize they controlled the media. People who thought like them made our movies, TV shows, and most importantly, owned the greatest propaganda tool ever invented, social media. They could significantly influence not only which breakfast cereal America liked best, but also which candidate America should vote for.

    And none of it fell under the First Amendment. That old saw only protects people from government censorship, not corporate censorship or propaganda. The Founders never conceived we the people would want to have our media censored, or that companies would grow more powerful than the government to be able to do so, or that the age-old remedy for misinformation – truth – would become so reviled and feared. Of all the Founders’ omissions of issues unimaginable in the 18th century, this is the one which may prove fatal to the Republic.

    The big picture is bad. Thanks to legal razzle-dazzle aimed at limiting corporate liability for the garbage they publish, Section 230 of the Communication Act was born. This removed the threat of libel to allow social media to become an even more powerful influence in our lives. They could shove anything up America’s nose or down the memory hole penalty free.

    The law reads “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” In other words, online intermediaries that host or republish speech are protected against a range of laws that might otherwise be used to hold them legally responsible for what is on their platforms. So if Twitter wants to only include false happy news about Hunter Biden, it can. If Twitter wants to enable those who spew out out-and-out lies about Trump, it can. They ran amok with Trump and Russia, willfully promoting lies that were part of a professional disinformation campaign Goebbels would have looked at in awe.

    The Founders envisioned media as an essential element of democracy, affording it unique status in the Bill of Rights to inform the people. Social media repurposed that grace into an anti-democratic tool which works like this: a journalist “publishes” a falsehood on social media. The mainstream media then does a story about that tweet, cleverly using Twitter as the quoted source to cover themselves from any claims of libel or obligation to the truth. They are just reporting what was already on Twitter.

    This legal and moral sleight of hand allows places like the NYT to whore out their credibility to front page the most atrocious gossip – see, we’re not saying it’s true, only that it was on Twitter. The power of the 1A protects the NYT, which becomes a front for the partisan work of so-called non-publishers on social media. Think of it as an 1A reach-around.

    This willful journalistic malfeasance could not exist without the collaboration of the search engines to hide the truth. Search engines have become of the most politicized interactions of anyone’s day, shoving information and denying it in equal amounts, all driven by the views of, well, someone, no one is really sure who anymore.

    What we do know for sure is in the end the massive global media infrastructure was recruited to drive Trump from office. Where the effort failed with Russia, Ukraine, January 6, and all the sideshow acts of Emoluments and Stormy Daniels, it finally got enough traction to matter with Covid. Trump killed your grandma. Today the guns are all reloaded, and the media is already declaring 2024 stolen if Trump wins.

    The small picture is also bad. Journalists, who depend on the 1A for their jobs, no longer believe in its most foundational tenet: informing the public to enable them to participate more fully in our democracy. On a small scale, journalism is now a weapon to take 1A rights away from those deemed politically unsuitable. Here’s one case study to spoil breakfast.

    I don’t know Shawn McCaffrey or Christopher Mathias. I do know both of them believe in ideological purity. But one’s a threat to the 1A and one just likes to hear himself talk.

    Shawn belonged to Identity Evropa, which among other things played a role in the 2017 “Unite The Right” rally in Charlottesville. Chris meanwhile identifies as a journalist for Huffington Post and covers “far right, disinformation, and hate.” He believes Identity Evropa Shawn is dangerous because he is “racist, homophobic and hosts an anti-Semitic podcast.”

    Chris believes Shawn is so dangerous he devoted his own First Amendment rights as a journalist to stomp the wind out of Shawn’s First Amendment right to say hateful things, to the point where Chris and HuffPo stalked Shawn to discover he had enlisted in the Air Force. They turned over their 1A-protected “journalism” to a progressive-aggressive Congresswoman for weaponization, not unlike the two-step practiced by place like NYT and Twitter. The Congresswoman made the Air Force throw Shawn out.

    Why did Chris, HuffPo, and the Congresswoman go so far out of their way to get Shawn out of the Air Force? Because they believe people like Shawn join the military not to serve their country, but “to receive combat training they can use to inflict violence on civilian targets and can recruit other servicemen and servicewomen to their cause.” Journo Chris adds this is “a problem brought into focus by the prevalence of current and former military personnel taking part in the storming of the U.S. Capitol on January 6.” At worst only 15 percent of those arrested had some vague “tie” to military service.

    This game is not new for Chris and HuffPo. They got an elementary school teacher fired for writing things on “extremist” sites they did not agree with. The teacher also wrote for The Atlantic, Vice, The Daily Caller, and The Weekly Standard, the latter two Chris tells us “let him make his racist sympathies clear in print.” In 2019 Chris and HuffPo “exposed” 11 racist servicemen. Evidence HuffPo amassed included a Facebook posting by one who wrote he likes “Tennessee because it is conservative and Christian, implicitly white.” That’s not even true; the state is almost 17 percent black but whatever.

    Chris the journalist also believes without evidence “many nameless fascists today lead double lives, hiding behind avatars to promote their noxious beliefs online while holding down respectable day jobs in education, military, law enforcement, medicine or government.” He works with whatever the hell the Anonymous Comrades Collective is “to expose Nazis, racists and fascists.”

    By the way, in case you haven’t guessed, paranoid Journo Chris is the threat and Racist Shawn is the one who just likes to hear himself talk.

    When so-called journalists judge ideological purism, we see in practice the same hatred and bigotry, backed up by self-granted righteousness, they claim to oppose. Shawn blathering out of his basement about how gays aren’t suitable for the military is no different than Chris standing atop HuffPo’s platform and saying people like Shawn aren’t suitable for the military.

    Like any good National Socialist of old, Chris is certain what he is doing protects the country in what he wrote is a moment of moral emergency. He and HuffPo are nasty ideologues who believe their ends – ideologically cleansing America – justify the means. Right now that cleansing is a version of cancellation but really, why stop there? Go full Inglorious Basterds and really take out some Nazis as a final solution to free speech, the threat to democracy that keeps electing Republicans.

    Things have moved beyond journalists sniping at each other in print, or even partisan reporting. The case with Chris and Shawn is repugnant because it involves a journalist who finds someone else’s exercise of a Constitutional right so distasteful that he used the full power of an international media organization protected by that same First Amendment to destroy the speaker. That’s far more distasteful than anything out of Shawn’s potty mouth. And, biggest picture of all, that’s what is left of journalism at this point.

     

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    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.

     

     

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    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.

     

     
     
     

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    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.”

     

     

     

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    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.

    What stands in the way is current law, which following the evolution of free speech over the decades, has created increasingly specifics test on when speech becomes such a danger it must be stopped. And there’s a lot more to it than just that old bit about not being allowed to shout fire in a crowded theatre.
    From its earliest days concerns existed about the interplay between the 1A and the ability of  speech to incite violence to the point where words should be censored or criminalized. It sounds easy to sort out, until you consider almost any political viewpoint, passionately expressed, has the potential to incite. But a democracy can’t exactly lock up everyone who says aloud “abortion is murder” or accuses the president of murdering young boys sent into an unwanted war. Speech which inspires, motivates, stirs up the blood is not incitement, and in fact is an important part of a rugged democracy. Can every speaker be held responsible for what people who hear him talk do later? A finer line was needed.
    The Fire! quote from the Supreme Court decision in Schenck v. United States is often cited as justification for limiting free speech. 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.”

    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. The Fire! line is actually a kind of inaccurate shorthand. 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.

    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 Holmes’ statement is 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 would be for the later case of Brandenburg v. Ohio to refine the modern standard for restricting speech.

    Brandenburg v. Ohio (Clarence Brandenburg was an Ohio KKK leader who used the N-word with malice) precludes 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 more specific definition than in Schenck. Brandenburg is the Supreme Court’s final statement to date on what government may do about 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.

    Intent as included in Brandenburg is purposely hard to prove. 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. The reliance on intent exposes the danger of the 1A not applying to corporate censors. Twitter suppressed 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, no intent required. They made up their own version of the law.

    The law is similar for (incitement to) sedition, 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, as well as any legitimate criticism of the government, will include persuasion and 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.

    A 1982 case, Claiborne v. NAACP, not only made clear the Court’s strict standards on blocking speech for incitement but also how such suppression can strike any view, not just conservative ones. In the 1982 Claiborne v. NAACP the Court ruled NAACP civil rights leaders were not responsible for a crowd which, after hearing them speak, burned down a white man’s hardware store. The state of Mississippi had wanted to charge the NAACP leaders with incitement on the grounds their speeches urging a boycott of white-owned stores incited their followers to burn down a store. The state’s argument was that the NAACP leaders knew their inflammatory rhetoric would drive the crowd to violence.

    The Supreme Court rejected that argument, explaining that free speech will die if people are held responsible not for their own violent acts but for those committed by others who heard them speak and were motivated in the name of that cause. The Court wrote “there is no evidence — apart from the speeches themselves that [the NAACP leader] authorized, ratified, or directly threatened acts of violence… To impose liability without a finding that the NAACP authorized — either actually or apparently — or ratified unlawful conduct would impermissibly burden the rights of political association that are protected by the First Amendment.” They concluded instead the NAACP “through exercise of their First Amendment rights of speech, assembly, association, and petition, rather than through riot or revolution, sought to bring about political, social, and economic change.”

     

    All of this may soon change, however. Joe Biden and the Democratic Congress are actively considering new laws (“Patriot Act 2.0”) against domestic terrorism which will likely draw from and enlarge the current definitions of incitement and sedition, with the Trump impeachment as their philosophical touchstone. 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 groundwork is already in place. Don’t forget Biden often claims credit for writing the original Patriot Act. The MSM has been priming Americans to believe they have too many rights for their own safety. The NYT is opening soliciting stories about “right wing extremism” in the military.

    It is necessary to say it again. America at present, on paper at least, legally holds apart from some very narrow exceptions free speech exists independent of the content of that speech. This is one of the most fundamental precepts of our democracy. There is no need for protection for things people agree with, things that are not challenging or debatable or offensive. Free speech is not needed to discuss the weather or sports. The true tests for a democracy come at the edges, not in the middle.

     

     

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    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