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The Ministry of Twitter
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.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
What is Speech? Expression vs. Art, LGBTQ Edition
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.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Why Does the NYT Now Support Assange?
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.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Orwell’s Mistakes
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.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Texas Law Likely to Go to Supremes: Can Twitter and Facebook Censor Viewpoints?
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.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Elon, Time to Kill Twitter
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.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
The Ashley Biden Problem
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.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Yeshiva University v. The LGBT Club, Victory for the 1A
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.”
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
BLM License Plate Rocks Hawaii
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.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
China vs. U.S.: Privacy for Whom?
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 vans, Stingrays, ShotSpotters, 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.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Viewpoint Discrimination May Bring 1A to Social Media
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.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Answering Gov. Hochul on Buffalo: Free Speech Does Not Contribute to Mass Shootings
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 States, which 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.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Sarah Palin v. New York Times v. and the First Amendment
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.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Two Truths, a Question and the Problem with Incitement
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.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Bad Times for the First Amendment
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.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
CIA (Dis)Information Operations Come Home to the US
Reporters joke the easiest job in Washington is CIA spokesman. You need only listen carefully to questions and say “No comment’ before heading to Happy Hour. The joke, however, is on us. The reporters pretend to see only one side of the CIA, the passive hiding of information about itself. They meanwhile choose to profit from the other side of the equation, active information operations designed to influence events in America. It is 2021 and the CIA is running an op against the American people.
Leon Panetta, the Director CIA from 2009 to 2011 explained bluntly his CIA did influence foreign media outlets ahead of elections in order to “change attitudes within the country.” The method, Panetta said, was to “acquire media within a country or within a region that could very well be used for being able to deliver a specific message or work to influence those that may own elements of the media to be able to cooperate, work with you in delivering that message.”
The CIA has been running such information ops to influence foreign elections since the end of WWII. Richard Bissell, who ran the agency’s operations during the Cold War, wrote of “exercising control over a newspaper or broadcasting station, or of securing the desired outcome in an election.” A report on the CIA in Chile boasts the Agency portrayed its favored candidate in one election as a “wise, sincere and high-minded statesman” while painting his leftist opponent as a “calculating schemer.” At one point in the 1980s foreign media insertions ran 80 a day.
The goal is to control information as a tool of influence. Sometimes the control is very direct, simply paying a reporter to run a story, or, as was done in Iraq, simply operating the media outlet yourself (known as the Orwellian Indigenous Media Project.) The problem is such direct action is easily exposed, destroying credibility.
A more effective strategy is to become a source for legitimate media such that your (dis)information inherits their credibility. The most effective is an operation so complex one CIA plant is the initial information source while a second CIA plant acts seemingly independently as a confirming source. At that point you can push information to the mainstream media, who can then “independently” confirm it, sometimes unknowingly, through your secondary agents. You can basically write tomorrow’s headlines.
Other techniques include exclusive true information mixed with disinformation to establish credibility, using official sources like Embassy spokesmen to appear to inadvertently confirm sub details, and covert funding of research and side gigs to promote academics and experts who discredit counter-narratives. The academics may never know where their money comes from, adding to their credibility.
From the end of WWII to the Church Committee in 1976, this was all just a conspiracy theory. Of course the US would not use the CIA to influence elections, especially in fellow democracies. Except it did. By its nature reporting on intelligence always requires one to work with limited information. Always give time a chance to explain.
Through Operation Mockingbird the CIA ran over 400 American journalists as direct assets. Almost none have ever discussed their work publically. CIA documents show journalists were engaged to perform tasks for the CIA with the consent of the managements of America’s leading news organizations. The New York Times alone willingly provided cover for about ten CIA officers over decades and kept quiet about it. Such long term relationships are a powerful tool, so feeding a true big story to a young reporter to get him promoted is part of the game. Don’t forget the anonymous source who drove the Watergate story was an FBI official who through his actions made the careers of cub reporters Woodward and Bernstein. Bernstein went on to champion the Russiagate story. Woodward became a Washington hagiographer. Ken Dilanian, formerly with the Los Angeles Times, the Associated Press, and now working for NBC, maintains a “collaborative relationship” with the CIA.
That’s the tradecraft and the history. The problem for America is once again the tools of war abroad have come home. The intelligence community is currently operating against the American people using established media.
Some of it can’t be more obvious. The CIA always planted stories in foreign media for American outlets to pick up. The Agency works directly with Hollywood to control movies about itself. Turn on any of the advocacy media outlets and you see panels of former CIA officials. Journalist Matt Taibbi even created a list (and since ex-‘s need agency clearance to speak, all are of the officially approved class.) None is more egregious than John Brennan, former Director CIA, who for years touted Russiagate when he knew from information gathered while he was still in office it was all a lie. The uber-lie that Trump was dirty with Russia was leaked to the press most likely by Brennan in January 2017 as the kick off event to the info op still running today.
Brennan’s role is more than speculation. John Durham, the US attorney leading the ongoing “how it happened” Russiagate investigation into the intelligence community, has requested Brennan’s emails and call logs from CIA. Durham is also examining whether Brennan changed his story between his public comments (not under oath, say anything) and his May 2017 testimony to Congress (under oath, watch out for perjury) about the dossier. Reporter Aaron Mate is less delicate, laying out the evidence Brennan was “a central architect and promoter of the conspiracy theory from its inception.” Even blunter is Senator Rand Paul, who directly accuses Brennan of trying “to bring down a sitting president.”
It was all based on nothing but disinformation and the American press swallowed every bit of it, turning the op into a three year tantrum falsely convincing a vast number of citizens their nation was run by a Russian asset. Robert Mueller, whose investigation was supposed to propel all this nothing into impeachment hearings, ended up exercising one of the last bits of political courage Americans will ever see in walking right to the edge of essentially a coup and refusing to step off into the abyss.
The CIA is a learning institution, and recovered well from Russiagate. Details can be investigated. That’s where the old story fell apart. The dossier wasn’t true. But the a-ha discovery was since you’ll never formally prosecute anyone, why bother with evidence. Just throw out accusations and let the media fill it all in for you. The new paradigm included let the nature of the source — the brave lads of the intelligence agencies — legitimize the accusations this time, not facts. Go overt and use the new, unexpected prestige of the CIA as progressive heros to substantiate things.
So in December 2017 CNN reported Donald Trump, Jr. had advance access to the WikiLeaks archive. Within an hour, NBC’s Ken Dilanian and CBS both claimed independent confirmation. It was a complete lie, based on fabricated documents. How do you confirm a lie? Ask another liar.
In February 2020, the Office of the Director of National Intelligence (ODNI) briefed the House Intelligence Committee the Russians were election meddling again to favor Trump. A few weeks earlier, the ODNI briefed Bernie Sanders the Russians were also meddling in the Democratic primaries in his favor. Both briefings were leaked, the former to the New York Times to smear Trump for replacing his DNI, the latter to the Washington Post ahead of the Nevada caucuses to damage Sanders.
In June 2020 The New York Times stated CIA officials concluded the Russians “secretly offered bounties to Taliban-linked militants for killing coalition forces in Afghanistan — including targeting American troops.” The story ran near another claiming Trump had spoken disrespectfully about fallen soldiers. Neither story was true. But they broke around the same time Trump announced his plan to withdraw troops from Afghanistan, aimed at discouraging pro-military voters.
Earlier this month The Washington Post, citing anonymous sources, claimed the FBI gave a defensive briefing to Rudy Giuliani in 2019, before he traveled to Ukraine. Giuliani supposedly ignored the warning. The story was “independently confirmed” by both NBC and The New York Times. It was totally false.
The American system always envisioned an adversarial role for the media. One of the earliest challenges to freedom of the press was the Colonial-era Peter Zenger case, which established the right of the press to criticize politicians free from libel charges. At times when things really mattered and even as other journalists hid under their beds, men like Edward R. Murrow worked their craft to preserve democracy. Same for Walter Cronkite finally reaching his opposition to the Vietnam War, and the New York Times reporters weighing imprisonment to publish the Pentagon Papers.
In each of those instances the handful of reporters who risked everything to tell the truth were held up as heroes. Seeing the Times fighting for its life, the Washington Post co-published the Pentagon Papers to force the government to make its case not just against a rival newspaper, but the 1A itself.
Not today. Journalism is today devoted to eliminating practitioners unwilling to play the game. Few have been targeted more than Glenn Greenwald (with Matt Taibbi as runner up.) Greenwald exploded into a journalistic superhero for his reporting on Edward Snowden’s NSA archive, founding The Intercept to serve as a platform for that work (Greenwald’s downfall parallels Julian Assange, who went from liberal hero for exposing the foundational lies of the Iraq War to zero when his Wikileaks was demonized for supposedly helping Donald Trump.)
Greenwald’s criticism of the media for accepting Deep State lies as truth, particularly concerning Russiagate, turned him into a villian for progressives. MSNBC banned him, and other media outlets ran stories critical of him. Then something very, very odd happened to make it appear The Intercept outed one of its own whistleblower sources. Evidence suggests the source was a patsy, set up by the intel community, and exposed via Matt Cole, one of The Intercept journalists on this story. Cole was also involved in the outing of source CIA officer John Kiriakou in connection with torture claims. Either way new whistleblowers will think twice before turning to The Intercept. Greenwald recently quit the site after it refused to publish his article on Hunter Biden’s ties to China unless he deleted portions critical of Joe Biden.
Greenwald seems to have figured out the intel community’s game, writing “the most significant Trump-era alliance is between corporate outlets and security state agencies, whose evidence-free claims they unquestioningly disseminate… Every journalist, even the most honest and careful, will get things wrong sometimes, and trustworthy journalists issue prompt corrections when they do. That behavior should be trust-building. But when media outlets continue to use the same reckless and deceitful tactics — such as claiming to have ‘independently confirmed‘ one another’s false stories when they have merely served as stenographers for the same anonymous security state agents while ‘confirming’ nothing — that strongly suggests a complete indifference to the truth and, even more so, a willingness to serve as disinformation agents.”
Democracy has no meaning if people simply vote uninformed, as they are propagandized. It will be sport for future historians to mark the thing that most pushed America into decline. Seeing decades of success abroad in using info ops, the CIA and others turned those weapons inward. So seeing her Deep State meddle in presidential politics, simultaneously destroying (albeit mostly with their cooperation) the adversarial media, while crushing faith in both our leaders and in the process of electing them, will certainly be a top qualifier.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
I Violated “Community Standards”!
Just as a marker on the road to the complete loss of freedom of speech as well as losing my mind, here is my full post Facebook deleted.
Their anonymous censors stated the post below violates “community standards” and because of that I was forbidden from posting or commenting for 24 hours.
Since anyone reading this is part of my “community,” I leave it here for you to judge.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Jeffersonian or Springsteenian Democracy?
That Super Bowl commercial could have been so much worse.
“This is Bruce ‘Born to Run’ Springsteen, and when I’m driving down Thunder Road in my Pink Cadillac listening to some Radio Nowhere looking for a Red Headed Woman, I know these aren’t my Glory Days any more. So it ain’t no sin to be glad for Cialis. Come on up for The Rising!”
Or imagine Springsteen promoting a reverse mortgage, or some prescription drug with an X and Z in its name, ending with Bruce saying “Check with your doctor, and tell ’em the Boss sent ya.”
I can forgive Bruce for recycling footage and the same damn clothes from his Western Stars movie in that Super Bowl commercial. I’ll give him a pass for the faux accent which no one in New Jersey, or maybe anywhere in earth orbit, actually sounds like. I’ll even forgive his semi-annoyed tone (“I’ve told you people all this before but I guess I gotta go over it one more time.”) And no worries about whether Bruce sold out or not. Of course he did. He has always been clear (see his autobiography and Broadway show) that he is mostly an actor playing a character called “Bruce Springsteen.”
What I can’t overlook is Bruce is just wrong. The answer does not lie in Americans reaching the middle, as Bruce sternly instructs in his infomercial, but respecting the end points on either side as valid positions.
Let’s start with the Boss himself. Despite all the guff shoveled around the media about Bruce avoiding politics for so long, that has never been the case. Very early in his career Springsteen appeared at the No Nukes concerts. Not the “let’s have some nuclear power plants but not too many” concert. His opposition to the Vietnam War grew to opposing America’s jingoistic wars broadly. His stance on economic inequality is the cornerstone of his songbook — think Nebraska and Ghosts of Tom Joad. He supported BLM before it had its own initials; remember American Skin (41 Shots) from 2001?
Bruce has also always been about partisan politics, scolding the Reagan administration throughout the entire Born in the USA album, and actively campaigning for four Democratic presidential candidates. He even joked-not joked about moving to Australia if Trump was re-elected.
A guy who calls himself The Boss has never been about seeking the middle, as he says is our goal in his commercial. He has always taken positions, proudly and clearly. And that is more than OK, it is what America should be about.
The Founders made clearer than a ringing Clarence Clemons sax solo vigorous debate was critical to their vision of a democracy. They baked that into the Constitution via the First Amendment, ensuring free speech and the right to assemble. And no middle ground there — it says “Congress shall make no law…” and with narrow exceptions the Supreme Court has kept it that way for a couple of hundred years.
The Founders had no problem with compromise when that seemed the best they could do; in the extreme they even bargained enslaved human beings into being counted as only 3/5 of a white man. But the thrust was never toward a goal of 50-50, a simplistic Springsteenian middle ground instead of the balanced Jeffersonian one. The founding documents gave equal powers to very unequal states. The whole sloppy mess of democracy is full of 2/3 of this and majority that.
There would come very different ideas on once established things like whether women could vote. But after a robust process women got the vote, an extreme position. There was no meeting in the middle, say granting women a partial vote, or only letting them vote in national elections. The key is the mass of Americans accepted the result, and the ladies getting the vote seems to have worked out for us all.
When we try to meet in the middle we usually end up with most people unhappy. In Roe v. Wade the Supreme Court tried to hit some theorectical middle in granting nearly unfettered abortion rights in the first trimester, giving the states more decision making for the second, and leaving third trimester abortions as the very difficult decision they are. The results were that from the instant the opinion was issued one side demanded even freer access to abortion while the other tried to make access difficult at every step. Roe is settled law but not a settled issue.
Contrast that with the decision by the Court to allow same-sex marriage. One side of that debate just plain lost, and the country moved on to the sideshow of arguing about baking cakes for the receptions. Meh.
What is missing today in the majority of our Red-Blue is neither side understands the process. The goal is no longer to debate and resolve and move on. Today there is little respect for the other side and no empathy, just contempt and disgust. Their opinion is not only wrong, it is insane, dangerous, bonkers, a literal threat to our survival as a nation. How many times did we hear about the end of the rule of law, the end of democracy, fascism via racism, and that the Reichstag was burning during the Trump years?
More than anyone’s ideas being wrong, we see him or her as a horrible person just for holding those ideas. The goal today is not to beat the other idea on the playing field. It is to cancel the speaker, deplatform him, hunt him down, demonize him, make it so he can’t find a job, burn his books, smite him with Terms of Service, eliminate his ideas if not the speaker himself. Or maybe impeach him as a private citizen, strip away his right to run for future office, force him out of his own house in Mar-a-Lago, and I don’t know, hear the lamentations of his women. The middle ground is a killing field.
We end up believing that accepting the results of an election is optional if our candidate loses. We take “credible accusation” as a new standard, but only of course when it produces our desired results. Doxxing someone online or assaulting them in a restaurant is justified if he commits thoughtcrime. It has gotten to the point where even journalists have joined the scolds and censors to crusade against the First Amendment today to silence an opposing view without a thought to what will happen tomorrow to their own ideas when the wind shifts.
So Bruce, would you take another crack at this commercial? You can keep the same B-roll images, even that kinda silly cowboy cosplay outfit (would a 20-year-old you have worn that into a seaside Jersey bar?) but let’s rewrite the script:
“We demand diversity now in everything but thought and don’t see the irony. We’re in danger of losing what we strived and fought for, respect for different opinions. Don’t work toward the middle. Who has risked everything for a half-baked compromise? Anyone ever washed a rental car? No, you think hard, and you stake out a position, knowing the other guy is doing the same. Then you talk it out, you argue, you stomp your feet, write Op-Eds, and organize protests. You don’t repress speech you disagree with, you listen to it, then counter its ideas with better ones.
“Then you turn it over to the wise tools the Founders granted us. They differ from issue to issue. So an election, or a Senate vote, or a court decision. And then you accept that outcome with neither celebration nor triumph and you respect those whose ideas didn’t make it. That’s our common ground.
“It’s not about trying to all think the same way. It is about grasping for a higher rung because we don’t. We all live in one country and we all in the end want a life where we can care for family, do honest work, and join in this prayer for our freedom. The messy, awkward, slow way forward is well-marked for us.
“Also, please buy this Jeep. Patty’s on me to put in a new pool at home before spring.”
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Incitement is the New Terrorism
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.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Social Media’s Threat to Free Speech is Real
The interplay between the First Amendment and corporations like Twitter, Google, Amazon, Apple and Facebook is the most significant challenge to free speech in our lifetimes. Pretending a corporation with the reach to influence elections is just another place that sells stuff is to pretend the role of debate in a free society is outdated.
From the day the Founders wrote the 1A until very recently no entity existed that could censor at scale other than the government. It was difficult for one company, never mind one man, to silence an idea or promote a false story in America, never mind the entire world. That was the stuff of Bond villains.
The arrival of global technology controlled by mega-corporations like Twitter brought first the ability the control speech and soon after the willingness. The rules are their rules, so we see the permanent banning of a president for whom some 70 million Americans voted from tweeting to his 88 million followers (ironically the courts earlier claimed it was unconstitutional for the president to block those who wanted to follow him.) Meanwhile the same censors allowed the Iranian and Chinese governments (along with the president’s critics) to speak freely. For these companies violence in one form is a threat to democracy while similar violence is valorized under a different color flag.
The year 2020 also saw the arrival of a new tactic by global media, sending a story down the memory hole to influence an election. The contents of Hunter Biden’s laptop, which strongly suggest illegal behavior on his part and unethical behavior by his father the president, were purposefully and effectively kept from the majority of voters. It was no longer for a voter to agree or disagree, it was now know and judge yourself or remain ignorant and just vote anyway.
Try an experiment. Google “Peter Van Buren” with the quotes. Most of you will see on the first page of results articles I wrote four years ago for outlets like The Nation and Salon. Almost none of you will see the scores of columns I wrote for The American Conservative over the past four years. Google buries them.
The ability of a handful of people nobody voted for to control the mass of public discourse has never been clearer. It represents a stunning centralization of power. It is this power which negates the argument of “why not start your own web forum.” Someone did until Amazon withdrew its server support, and Apple and Google banned the Parler app.
The same thing happened to The Daily Stormer, driven offline through a coordinated effort by tech companies, and 8Chan, deplatformed by Cloudflare. Amazon partner GoDaddy deplatformed the world’s largest gun forum AR15. Tech giants have also killed off local newspapers and other forums by gobbling up ad revenues. The companies are not, in @jack’s words, “one small part of the larger public conversation.”
The tech companies’ logic in destroying Parler was particularly evil – either start censoring like we do (“moderation”) or we shut you down. Parler allowing ideas and people banned by the others is what brought its demise. Amazon, et al, brought their power to censor to another company. The tech companies also said while Section 230 says we are not publishers, we just provide the platform, if Parler did not exercise editorial control to tech’s satisfaction it was finished. Even if Parler comes back online it will live only at the pleasure of the powerful.
Since democracy was created it has required a public forum, from the Acropolis to the town square on down. That place exists today, for better or worse, across global media. It is this seriousness of the threat to free speech that requires us to move beyond platitudes like “it’s not a violation of free speech, just a breach of the terms of service!” People once said “I’d like to help you vote ladies, but the Constitution specifically refers to men, my hands are tied.” That’s the side of history some are standing on.
This new reality must be the starting point, not the end point of discussions on the First Amendment and global media. Facebook, et al, have evolved into something new which can reach beyond their own corporate borders, beyond the idea of a company that just sells soap or cereal. Never mind being beyond the vision of the Founders when they wrote the 1A, it is hard to imagine Thomas Jefferson endorsing having a college dropout determine what the president can say to millions of Americans. The magic game play of words – it’s a company so it does not matter – is no longer enough to save us from drowning.
Tech companies currently work in casual consultation with one another, taking turns being the first to ban something so the others can follow. The next step is when a decision by one company ripples instantly across to the others, and then down to their contractors and supplies as a requirement to continue business. The decision by AirBnB to ban users for their political stance could cross platforms automatically so that same person could not fly, use a credit card, etc., essentially a non-person unable to participate in society beyond taking a walk. And why not fully automate the task, destroying people who use a certain hashtag, or like an offending tweet? Perhaps create a youth organization called Twitter Jugend to watch over media 24/7 and report dangerous ideas? A nation of high school hall monitors.
Consider linkages to the surveillance technology we idolize when it helps arrest the “right” people. So with the Capitol riots we fetishize how cell phone data was used to place people on site, coupled with facial recognition run against images pulled off social media. Throw in the calls from the media for people to turn in friends and neighbors to the FBI, alongside amateur efforts across Twitter and even Bumble to “out” participants. The goal was to jail people if possible, but most loyalists seemed equally satisfied if they could cause someone to lose their job. Tech is blithely providing these tools to users it approves of, knowing full well how they will be used. Orwellian? Orwell was an amateur.
There are legal arguments to extend limited 1A protections to social media. Section 230 could be amended. However, given Democrats benefit disproportionately from corporate censorship and current Democratic control of the government, no legislative solution appears likely. Those people care far more for the rights of some of its citizens (trans people seem popular now, it used to be disabled folks) then the most basic right for all the people.
They rely on the fact it is professional suicide today to defend all speech on principle. It is easy in divided America to claim the struggle against fascism (racism, misogyny, white supremacy, whatever) overrules the old norms. And they think they can control the beast.
But imagine someone’s views, which today match @jack and Zuck’s, change. Imagine Zuck finds religion and uses all of his resources to ban legal abortion. Consider a change of technology which allows a different company, run by someone who thinks like the MyPillow Guy, replacing Google in dictating what you can read. As one former ACLU director explained “Speech restrictions are like poison gas. They seem like they’re a great weapon when you’ve got your target in sight. But then the wind shifts.”
The election of 2020, when they hid the story of Hunter Biden’s laptop from voters, and the election’s aftermath, when they banned the president and other conservative voices, was the coming-of-age moment, the proof of concept for media giants that they could operate behind the illusion of democracy.
Hope rests with the Supreme Court expanding the First Amendment to social media, as it did when it grew the 1A to cover all levels of government, down to the hometown mayor, even though the Constitution specifically only mentions Congress. The Court has long acknowledged the flexibility of the 1A in general, expanding it over the years to acts of “speech” as disparate as nudity and advertising. But don’t expect much change any time soon. Landmark decisions on speech, like those on other civil rights, tend to be more evolutionary in line with society’s changes than revolutionary.
It is sad that many of the same people who quoted that “First they came for…” poem over Trump’s Muslim Ban are now gleefully supporting social media’s censorship of conservative voices. The funny part is both Trump and Twitter claim what they did was for peoples safety. One day people will wake up and realize it doesn’t matter who is doing the censoring, the government or Amazon. It’s all just censoring.
What a sad little argument “But you violated the terms of service nyah nyah!” is going to be then.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Bad Arguments the Left is Using to Destroy Conservative Speech
Some Bad Arguments the Left is Using to Destroy Conservative SpeechThe graced haiku of the First Amendment was defeated in this current age not by jack booted thugs but by Terms of Service.
It wasn’t supposed to be this way. From 1984 through every dystopian movie, as well as the sordid history of real dictatorships past, the loss of free speech was supposed to come from the top down. A powerful man crushes the press, brown shirts take over TV stations, that sort of thing. Nobody foresaw the loss of free speech in a once great democracy would come – by popular demand – from many of The People themselves.
But that is what is happening in these extraordinary times here in Post-Constitutional America. Before this, the other great losses of rights once confirmed in blood followed dark tradition: after killing four Americans by drone, Barack Obama’s attorney general claimed the president’s personal deliberation constituted enough due process to satisfy the Fifth Amendment. Exaggerated fear of terrorists saw the Fourth Amendment rights to privacy obliterated by the NSA and welcomed by the frightened masses.
What Americans once saw as our highest values became luxuries that in a time of fear, first 9/11, then Trump, the country believed it could ill afford. Justice, fairness, and free speech became a risk, their indulgence a weakness.
Among the rights lost, free speech is arguably the most dear. Without free speech people stop thinking, losing all but a narrowing band of ideas. Open discussion, debate, and argument are the core of democracy, good ideas defeating bad ones in the marketplace of the mind. Fascism seeks to close off all ideas except its own, falsely labeling dissent as disloyal, insubordinate, seditious, insurrectionist, and ultimately unlawful.
Any discussion of free speech must acknowledge despicable people and their ideas have always existed. These people will use any freedom they have to promote the worst of ideas. Yet it is equally important to remind how at different times in our history speaking out against slavery, against war, against or for one politician or another, have all been seen as despicable. Restrictions on free speech have been used to ban great literature, books about women’s reproductive health, and photos once deemed “pornographic” now displayed as art. Someone will always find an idea or word offensive. Allowing that person to judge for all of us has never proven to be on the right side of history. The times when America stepped back from free speech – the WWI era Sedition Act, the McCarthy Years – are not the years we are proud of.
Trumpism, neo-Nazis, alt-right, white supremacists, QAnon, Pepe, and the racists is sadly nothing new. Indeed many of those groups in different forms have been around for decades. What is new is Leftists are aggressively embracing many of the same tools once used to try and stop the anti-war movement, feminists, and other progressive groups in the past. Those tools which directly offend the Bill of Rights include violence, suppression, censorship, and twisty quasi-legal reasoning about incitement and sedition. In addition are the tools of the bully, including misuse of the No Fly List to ban pro-Trump travelers for their political beliefs, “canceling” by mustered mobs, and blacklists to bar people from earning a living due to their politics.
But something else new turns up the dial: technology, coupled with the metastisization of new global media unabashedly willing to take advantage of not being under the control of the 1A. Combine that technological reach with liberal autocratic zeal all hidden behind the justification that Because Trump, Nazis, white supremacists, etc. the ends justifies the means and you have trouble. The justification is Everything Is Different and the old rules don’t apply. The democratic ideal of free speech is now a threat to democracy.
The literal first shot was fired, er, thrown, at the Trump inaugural. Richard Spencer was explaining live on camera the meaning of Pepe the Frog, a silly cartoon figure somehow adopted as a mascot by the movement Spencer promoted. An anonymous black-clad antifa protester ran into the scene and sucker punched Spencer. His free speech was ended by that act of violence.
There followed tens of thousands of comments on the YouTube videos of the attack. The standard response was “I don’t condone violence but…” and then go on to condone violence if it was directed against “Nazis.” It only got worse. In 2021 the Leftists of social media cheered the shooting death of unarmed Trump supporter Ashli Babbitt at the hands of the Capitol Police. “She earned that bullet…” read one typical remark. “Don’t forget that she was participating in a domestic terrorist attack!”
Another popular sentiment which echoed from 2017 into 2021 is to claim violence is justified as a leftist response to hateful speech by the right, and that if perhaps more people had punched Hitler in the early days the world would be a better place. More than a few people also suggest punching someone in the head is in fact a form of protected free speech itself, and others seem to think whatever they label as “hate speech” is a crime. Others used phrases along the lines of “the end justifies the means” and “by any means necessary.” It was if half the nation had simultaneously flunked AP Government.
Following the Spencer attack, similar violence landed at Middlebury College, then at a rally where one protester who displayed a Confederate flag was attacked, and at the University of California Berkeley (the university was ironically home to the Vietnam War protest-era Free Speech Movement.) Institutions, including Berkeley, Ohio State, Penn State, and New York University, canceled, postponed, or scheduled into dead zones speeches by conservative speakers, citing public safety concerns.
The undergirding philosophy was in place. The stage was set for a series of arguments to sate the desire to restrict speech. Let’s look at some, and why they do or not hold up.
The First Amendment Only Applies to Government
The First Amendment only applies to government, and so corporations are free to censor, restrict or shut down speech altogether.
Short Answer: True. The interplay between the 1A and corporations like Facebook is the most significant challenge to free speech in our lifetimes. It can only be resolved by a landmark Supreme Court challenge.
Until very recently no entity existed that could censor at scale other than the government. The arrival of global technology controlled by mega-corporations like Twitter, Facebook, Google, and Amazon brought first the ability the control speech and soon after the willingness to do so. The rules are their rules, so we see the permanently banning the president of the United States from tweeting to his 88 million followers while allowing the Iranian and Chinese governments to speak freely to those same people. At the same time Trump was suspended from social media for inciting violence Twitter allowed the hashtag #HangMikePence to trend. Violence in one location is a threat to democracy while similar violence is valorized if under a BLM flag.
The ability of a handful of people nobody voted for to control the mass of public discourse has never been more clear. It represents a stunning centralization of power. It is this power which negates the argument of “why not start your own web forum.” Someone did – Parler – until Amazon withdrew its server support, and Apple and Google banned the app, and silenced them. The same thing happened to The Daily Stormer, driven offline through a coordinated effort by multiple tech companies, and 8Chan, deplatformed by Cloudflare (Parler is suing Amazon under antitrust laws to regain its platform, and may seek a new provider in the interim.)
Try an experiment. Google “Peter Van Buren” with the quotes. Most of you will see on the first page of results articles I wrote four years ago for Leftist outlets like The Nation and Salon. Almost none of you will see the scores of weekly columns I wrote for The American Conservative over the past four years. Google buries them, like they never even happened. Try the same on the tiny DuckDuckGo search engine and the conservative articles appear.
Currently safe from the 1A as private companies, and with the legal shield of Section 230 of the Communications Decency Act, there is nothing to stop Twitter and the others even as new technologies create new opportunities to control speech. The election of 2020, when they hid the story of Hunter Biden’s laptop from voters, and the election’s aftermath, when they banned the president and other conservative voices, was their coming-of-age moment, the proof of concept for media giants. Many on the Left cheered the companies’ actions. No surprise. Presciently, Senator Chris Murphy, seeing the power available, had earlier demanded social media censor even more aggressively for the “survival of our democracy.”
While there are few things to currently prevent corporate censorship, whether for their own purposes or as a proxy for the Democratic Party as Murphy demands, there are some counter-veiling legal currents which recognize the need to extend the 1A.
One victory confirmed the status of social media, when the Supreme Court struck down a law prohibiting sex offenders from using Facebook. Justice Kennedy wrote in Packingham v North Carolina social media is now part of “the modern public square” so denying access violated the First Amendment. The Court concluded in a separate case “public access cable TV channels constituted a public forum, notwithstanding that they were operated by a private company.” Recognizing new media, even if administered by private companies, as the modern equivalent of the public square is an important step.
The next step is recognizing the civic responsibility of those providing public forums as part of the process of chipping away at the public-private divide shielding the big media companies.
The Supreme Court recognizes two categories of public fora: traditional and limited public forums. Traditional public forums are places like streets, sidewalks, and parks. Limited public forums are not traditionally public, but ones the government has purposefully opened to some segment of the public for “expressive activity.” By inviting the public to Facebook for comment, the government transforms a private place into a limited public forum which should be covered by the 1A. The Court only requires a “forum” for 1A purposes “to be private property dedicated to public use” or when the government “retains substantial control over the private property.” Like how the government cannot censor public library books even if the library is located in a private storefront.
In other words, by providing a public forum Facebook, et al, assume a new role. It seems reasonable that some protections for the public speech there be offered. They may not apply to Aunt Lisa’s cat pictures but should apply to her posting in favor of some local legislation on the ballot.
Bottom Line: Pretending a corporation with the reach to influence elections through the forum it provides is just another company that sells stuff is to pretend the role of unfettered debate in a free society is outdated. There are legal arguments to extend limited 1A protections to social media. Section 230 could be amended. However, given Democrats disproportionately benefit from corporate censorship and current Democratic control of the government, no legislative solution appears likely.
Hope rests instead with the Supreme Court expanding the 1A to social media, as it did when it grew the 1A to cover all levels of government, down to the hometown mayor, even though the Constitution specifically only mentions Congress. The Court has long acknowledged the flexibility of the 1A in general, expanding it over the years to acts of “speech” as disparate as nudity and advertising. But don’t expect much change any time soon. Landmark decisions on speech, like those on other civil rights, tend to be more evolutionary than revolutionary.
Free Speech May Provoke Violence (A Clear and Present Danger)
Some claim conservative speakers who use anti-LGBT or racist slurs to fire up their audiences can be banned or shut down. They say such speech is the equivalent of yelling Fire! in a crowded movie theater.
Short Answer: The standards for shutting down speech are purposefully restrictive, and well-codified. Most pundits and politicians come nowhere close. This excuse is over-used.
The Fire! line from Supreme Court decision Schenck v. United States is often cited as justification for limiting free speech. Here’s what Justice Oliver Wendell Holmes wrote:
“The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic. The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger.”
The full decision says the First Amendment doesn’t protect speech that meets three conditions: 1) the speech must be demonstrably false; 2) it must be likely to cause real harm, not just offense or hurt feelings, and 3) must do so immediately. Words in these decisions have hyper-specific legal meanings, often defined through multiple cases, which is why simply Googling a term and passing judgment on its vernacular via Twitter usually is wrong.
This interpretation of the First Amendment imposed restrictions on speech. But Schenck was what jurists call bad law, in that it sought to use the Espionage Act against a Socialist pamphleteer opposing WWI to stop free speech, not protect it. The case was eventually overturned, and in truth Holmes’ statement was better understood not as a 21st century test but to simply mean that while the First Amendment is not absolute, restrictions on speech should be narrow and limited.
It was the later case of Brandenburg v. Ohio (below) that refined the modern standard for restricting speech past Fire! But Holmes’ “fire in a crowded theater” line sticks around as a kind of inaccurate shorthand.
Bottom Line: The Supreme Court set a very high bar against restricting speech based on the idea that what was being said leading to harm, then in a later case moved the bar even higher. Offense or general threats alone are insufficient to justify silencing someone. People who cite “fire in a crowded theater” miss the fact that a more nuanced version of restrictions followed which currently controls speech.
Speech Can or Should Be Restricted Based on Content (Hate Speech)
There are no laws against “hate speech.” A speaker can insult people by their race, sexual orientation or religious beliefs. Often words are carefully chosen to inspire and promote hate or to appeal to crude and base instincts. Indeed, that is their point.
Short Answer: You cannot restrict hate speech. Hate speech per se does not exist in American law. Free speech means just that, with carefully limited restrictions sketched out by the Court.
Brandenburg v. Ohio (Clarence Brandenburg was a KKK leader in Ohio who used the N-word with malice) precludes hate speech from being sanctioned as incitement to violence unless (1) the speech explicitly or implicitly encouraged the use of violence or lawless action; (2) the speaker intends their speech will result in the use of violence or lawless action, and (3) the imminent use of violence or lawless action is the likely result of the speech.
A hostile reaction of a crowd does not automatically transform protected speech into incitement. Listeners’ reaction to speech is thus not alone a basis for regulation, or for taking an enforcement action against a speaker. The speaker had to clearly want to, and succeed in, causing some specific violent act to take place. Intent in particular is purposely hard to prove.
The Brandenburg test is the Supreme Court’s final statement to date on what government may do about inflammatory speech that seeks to incite others to lawless action. It was intended to resolve the debate between those who urge greater control of speech and those who favor as much speech as possible before relying on the marketplace of ideas to sort things out. Yet corporate censors have simply created their own definition of incitement, with Twitter suppressing the speech of 70,000 users simply for retweeting material with “the potential to lead to offline harm” under its Orwellian named Civic Integrity Policy.
A second type of speech is categorically excluded from First Amendment protection and often erroneously labeled hate speech: “fighting words.” This category of unprotected speech encompasses words that when spoken aloud instantly “inflict injury or tend to incite an immediate breach of the peace… [and is] “likely to provoke the average person to retaliation.” Offensive statements made generally to a crowd are not excluded from First Amendment protection; the insult or offense must be directed specifically at an individual.
The law is similar for sedition. Sedition broadly refers to seeking to overthrow the U.S. government by force. It is intimately tied to the concept of free speech in that any true attempt at overthrow will need to be preceded by persuasion, rabble rousing, and the stirring up of crowds. The line between criticizing the government and organizing for it to be overthrown is a critical juncture in a democracy.
Current law requires the government prove someone conspired to use force. Simply advocating broadly for the use of violence is not the same thing as violence and in most cases is protected as free speech. For example, suggesting the need for revolution “by any means necessary” is unlikely to be seen as conspiracy to overthrow the government by force. But actively planning such an action (distributing guns, working out the logistics, actively opposing lawful authority, etc.) could be considered sedition.
All of this may soon change, however. Joe Biden and other Leftist thinkers have been active considering new laws against “domestic terrorism” which will likely draw from and enlarge the current definition of sedition, so expect to hear more about all this. The new laws may seek to define beliefs such as “whites are a superior race” not as bad science or an unsavory opinion but as an actual threat, an illegal thought. Proposals include prohibiting people with such beliefs from joining the military or law enforcement.
The upshot is apart from some very narrow exceptions the obligation to free speech exists independent of the content of that speech. This is one of the most fundamental precepts of free speech in a democracy. There is no need for protection for saying things people agree with, things that are not challenging or debatable or offensive. Free speech is not needed for the weather and sports parts of the news. Instead, free speech is there to allow for the most rude, offensive, hateful stuff someone can imagine. The true tests for a democracy come at the edges, not in the middle.
That is why it should make a college age ACLU donor proud to know her $25 contribution helps both BLM and Nazis to say what they think, but it apparently does not. Some 69 percent of American college students believe hate speech (defined as “language intentionally offensive to certain groups”) should be (unconstitutionally) banned.
A professor at New York University wrote plainly, albeit as if he was unaware of the Constitution, “Freedom of speech means balancing the inherent value of a given view with the obligation to ensure that other members of a given community can participate in discourse as fully recognized members of that community. Free-speech protections — not only but especially in universities, which aim to educate students in how to belong to various communities — should not mean that someone’s humanity, or their right to participate in political speech as political agents, can be freely attacked, demeaned or questioned… [I]nvoking a pure model of free speech that has never existed, the dangers to our democracy are clear and present.”
The good people at NYU who believe in censoring speech have some opposition. Justice Oliver Wendell Holmes declared unpopular ideas should have their opportunity to compete in the “marketplace of ideas,” understanding free speech is not an ends but a means in a democracy. Justice Louis Brandeis held people must discuss and criticize ideas, that free speech is not only an abstract virtue but also a key element that lies at the heart of a democratic society. Even the fact that speech is likely to result in “violence or in destruction of property is not enough to justify its suppression.” Brandeis concluded “the deterrents ordinarily to be applied to prevent” violence and disruption “are education and punishment for violations of the law, not abridgment of free speech.”
Bottom Line: There is no justification for restricting speech so that people are not offended. Speech may offend, indeed that may be its point, but bad ideas are then defeated by better ideas. It’s the law.
What’s Said May Provoke Violence (Public Safety)
The idea a university or other venue cannot assure a speaker’s safety, or that the speaker’s presence may provoke violent protests, or that the institution just doesn’t want to go to the trouble or expense of protecting a controversial speaker has become a go-to justification for canceling or restricting speech. Berkeley cited this in canceling and then de-platforming (rescheduling her when most students would not be on campus) Ann Coulter, and New York University cited the same justification for canceling a conservative speaker.
Short Answer: Canceling a speaker to protect them or public safety is the absolute last resort, and some risk to safety is part of the cost to a free society for unfettered speech.
The most glaring misuse of this argument is when such a justification is applied only toward one strain of speech, say unilaterally against conservative speakers and not against others. The conclusion can only be danger comes from unpopular ideas based solely on their being presented on a left-leaning campus. The argument of restricting a speaker “for their own safety” who is otherwise willing to take on certain risks to make their voice heard can thus be applied in a biased manner. Restricting speech for safety needs to be content neutral.
Public safety has been long (mis)-used to silence otherwise protected speech. Such thinking has been used to deny permits for civil rights marches, with law enforcement saying they could not protect the black protesters from the KKK. Both sides in the abortion debate have used this argument as well outside clinics.
While institutions do have an obligation to public safety, that obligation must be balanced against the public’s greater right to engage with free speech. The answer is rarely to ban speech outright simply to maintain order.
One landmark case from 2015 provides some of the clearest guidance yet. The case involved a group called the Bible Believers who used crude language (“Turn or Burn”) at an LGBT gathering. The Court held:
“When a peaceful speaker, whose message is constitutionally protected, is confronted by a hostile crowd, the state may not silence the speaker as an expedient alternative to containing or snuffing out the lawless behavior of the rioting individuals. Nor can an officer sit idly on the sidelines — watching as the crowd imposes, through violence, a tyrannical majoritarian rule — only later to claim that the speaker’s removal was necessary for his or her own protection. Uncontrolled official suppression of the privilege [of free speech] cannot be made a substitute for the duty to maintain order in connection with the exercise of that right.”
The understanding that law enforcement, or any institution, can turn first to shutting down speech that requires physical protection, has failed the courts’ tests in cases as diverse as Occupy to a Christian group bringing a pig’s head to a Muslim Arts festival. The court has long recognized content-based regulation of speech in a public forum is permissible only when the regulation “is narrowly drawn to achieve that end.”
Bottom Line: An institution cannot cite avoiding public disruption as the initial or sole reason to restrict speech. The problems of having an unpopular person speak are outweighed by the obligation to protect free speech. Maintenance of the peace should not be achieved at the expense of the free speech.
Free Speech May Be Challenged by the Heckler’s Veto
Another misargument is the Heckler’s Veto is in itself protected speech. Some on the Left feel while someone may have a right to speak, someone else has the right to shout them down and prevent them from being heard.
Short answer: Free speech is not intended to mean whomever can literally “speak” the loudest. The natural end of such thinking is mob rule, online or off.
Legitimate ways exist to challenge speakers, including engaging them or ignoring them entirely. In contrast, using a Heckler’s Veto to keep unpopular speakers from expressing their views not only stifles a particular idea, but threatens to chill public discourse generally by discouraging others with controversial ideas from sharing them. Who wants to stand up only to be shouted down by a mob, online (for example, via hacking or denial of service attackers) or offline? Protesters cannot unduly interfere with communication between a speaker and an audience. The Supreme Court concluded the government’s responsibility in these circumstances is to control those who threaten or act out disruption, rather than to sacrifice the speaker’s First Amendment rights.
The most insidious use of the Heckler’s Veto is to have audience members create a disruptive situation that compels law enforcement to shut down a speaker for them, abusing their own freedom of speech to get the government to shut down someone else’s.
Bottom Line: Balancing the rights of the speaker, those who wish to hear them, and those who wish to protest is complicated. But simply shutting down one party entirely, or allowing one party to block the rights of the others, is illegal.
It is nearly professional suicide today to defend rude or racist speech on principle, that the right to speak exists almost fully independent of what one says. It is easy in divided post-Trump America to claim the struggle against fascism (racism, misogyny, white supremacy, etc.) overrules the old norms.
But imagine your views, which today match @jack and Zuck’s, change. Imagine Zuck finds religion and uses all of his resources to ban legal abortion. Consider a change of technology which allows a Russian or Chinese company to replace Google in dictating what you can read. Instead of the outright glee the Left showed over the end of Parler and the misuse of the already evil No Fly List against Trump supporters in DC imagine the same used against something you personally believe in. Imagine the criminalization of certain thoughts and beliefs.
There may be some hope. The American Civil Liberties Union warned the suspension of Trump’s social media accounts revealed “unchecked power.” The ACLU said the decision could set a precedent for big tech companies to silence less privileged voices if they chose. Once a leading voice for unfettered speech, the ACLU started applying a “woke” political litmus test to its chosen fights during the Trump years. It seems the organization finally figured out that censoring speech anywhere, even with Trump, is a threat to speech everywhere.
Censorship is inherently wrong. People demand it when it supports their point of view (anything to dump Trump) but can’t seem to understand it will never stop there. As one former ACLU director explained “Speech restrictions are like poison gas. They seem like they’re a great weapon when you’ve got your target in sight. But then the wind shifts.”
Free speech protection covers all the things people want to say, from the furthest left to the furthest right. It’s messy as hell, and it is our essential defense against fascism and control, whether from the left or the right, from the government or from corporate actors.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Defamation: Enter Sandmann v. CNN
Once again a geopolitical event — this time, the killing of an Iranian General — was falsely blown by agenda-driven journalism into ItIsWWIIIWeAreAllGonnaDieBecauseTrump and then within a handful of days we realize no, not the case. Again.
The facts never support the media contentions, but the facts seem to matter little. The need to drive an agenda, Orange Man Bad, controls.
Remember how Trump will start WWIII with China over Taiwan’s inauguration phone call, Trump will start global economic war with China trade sanctions, Trump will start WWIII by withdrawing from NATO, Trump will start a wider war in Syria bombing Russian bases, Trump will start a war moving the U.S. Embassy to Jerusalem, Trump will start WWIII pulling out of Obama’s Iran Nuclear Agreement, Trump will start WWIII with North Korea, Trump will sell out the U.S. to get peace with North Korea because he wants a cheap Nobel, Trump will start WWIII because he is Hitler, erratic, mentally ill, impulsive, isolated, Trump will ___ to distract from Mueller, Comey, impeachment, Trump will start a war over Venezuela, Trump will start a genocide of Kurds with Turkey, Trump will start a Mideast war after Iran attacked a Saudi oil facility or shot down a drone, Trump will start a civil war inside the U.S. after Charlottesville, or to stop the midterms, or to prevent the next election, or he won’t leave if he loses, Trump is a Russian asset, Trump owes Putin billions, Trump is Putin’s cockholster, Trump is a pee tape sex pervert, Trump will start a recession, Trump will trigger a depression, Trump is rich from emoluments, Trump is almost bankrupt with hidden taxes, the stock market will crash, trade wars will end global capitalism, Trump killed all the Puerto Ricans, Trump will take away health care, Trump will imprison LGBTQXYZ people, Trump will end legal abortion, Trump has America on the brink…
One can find dozens of articles on any of the subjects above. By my count the NYT’s Paul Krugman predicted a Trump recession 17 individual times, the first even before inauguration, alongside many more instances of the clear and present dangers of tax cuts, market bubbles, tariffs, and more. MSNBC’s Rachael Maddow devoted her entire show for about two years to the walls closing in on Trump, repeating “tick tock” like some modern version of the Rain Man.
Columnist Max Boot in The Washington Post put into writing what we have all known for some time: real journalism, Jefferson’s informed citizenry and all that, is dead. The job has shifted to agenda writing, just plain made-up stuff to drive events. Boot is at least honest that he writes to drive Trump from office and overturn the 2016 election, “Much of my journalism for the past four years has been devoted to critiquing President Trump and opposing the spread of Trumpism. But no matter how many columns or sound bites I produce, he remains in office… I am left to ask if all my work has made any difference.”
The worst agenda journalism reads like bad anti-Trump fan fiction, worse than the basement Star Wars stuff where Leia always ends up without her golden bikini. Trump is a spy. Trump digs golden showers. Turn around his jest, and if Trump saved a man’s life in the middle of Fifth Avenue Don Lemon would explain that night why that was wrong, and an existential threat to the rest of us if not Democracy itself. If it doesn’t pass even the sniff test, well, it was designed to. When writing for a fan fiction audience one simply need to feed them the raw meat they crave (naked Leia, Orange Man Bad.) Truth, subtlety, challenging thought have no place and indeed no value. That’s kind of what you expect when the goal is basement Solo pleasures, but it is now one of the drivers of the national mainstream media in America.
The giveaway that journalism is near-singularly devoted to an agenda, frightening the public in service of driving Trump somehow from office, is how the mistakes are always wrong in same direction. Meanwhile none of the people who keep track of the lies Trump tells and who are demanding “fact checks” before ads are allowed to run on social media seem to spend any time on the other side of the equation. Who would accept a track record this bad from their doctor, lawyer, their nail technician (“No, seriously, cracked nails are hot this year, it was in the NYT”)? Is there any price to be paid for agenda journalism?
Assuming credibility, professionalism, and self-respect are apparently worth about zero, the price tag for agenda journalism looks to be about $25 million. That’s what CNN is reported to have paid settling a defamation case brought by Covington High School student Nick Sandmann charging the network “maintained a well-known and easily documented biased agenda against President Donald Trump and established a history of impugning individuals perceived to be supporters of the president.” The amount is probably half what CNN spends yearly just on botox for Anderson Cooper but as Cooper’s estheticians are prone to say, it’s a start.
Almost a year ago to the day Sandmann and his Catholic school classmates traveled to Washington, DC to join anti-abortion protests. Sandmann was photographed grinning at a Native American DC protest regular. The media with one mighty flatulent blast knew what to do. Based solely on a YouTube clip, outlets like CNN and WaPo imagined Sandmann, wearing his MAGA cap, as the distillation of everything evil, some redneck crapper from Kentucky a hatin’ women and a protestin’ them abortions and rubbing his smug grin in the face of a noble Native American POC supposedly trying to defuse a tense situation with native drumming. The drummer was also quickly (but wrongly) glorified as a Vietnam Vet.
Blue Check Twitter suggested Sandmann be punched in the face, and veiled suggestions of mob action led to threats, Sandmann’s family temporarily run out of their home, the kid dropped from school trips, and other disciplinary action to include coerced apologies. The second wave was pearl clutching Op-Eds about what Trump has turned us into, and look, it has spread to The Children. The media implied Sandmann deserved it because of his politics. Contrast that treatment with the beatification bestowed on #Resistance kids like Greta Thunberg, and the good victims of the Parkland shooting (the Parkland kid who supports the Second Amendment meanwhile was media-doxxed out of his Harvard scholarship.)
Not only was all of that absolutely wrong (Sandmann was never an aggressor, and alongside his peers, said nothing in return to those taunting him, even though CNN claimed they “looked like they were going to lynch” the Black Hebrew Israelites who actually started the whole thing) it wasn’t even news. Students on a field trip, with the media appointing Sandmann their symbolic oberfuhrer, were fashioned into props to fit the characterization people who wear MAGA hats are intolerant. The media cared little for the truth when they had their entire white nationalist anti-Trump agenda as they imagine it exists packaged in one handy snapshot.
The media counts on America to forget their propaganda fails and move on. Only this time it turned out differently. Sandmann is suing a range of journalists individually, including Maggie Haberman, Ana Navarro, and Shaun King for slurs they threw at him on Twitter, and their employers for directing their massive global platforms to beat up an innocent high school kid. Included in the swath of lawsuits by Sandmann are CNN, MSNBC’s parent company, the AP, Gannett, and the Washington Post. In the words of the suit, they “brought down the full force of [their] corporate power, influence, and wealth on Nicholas by falsely attacking, vilifying, and bullying him despite the fact that he was a minor child.”
Representative Ilhan Omar, who tweeted the boys yelled “it’s not rape if you enjoy it” when they did not, is exempt from the suit as a public office holder. “Comedian” Bill Maher, who called Sandmann a profane name on TV, also likely enjoys a legal exemption for satire. Maher topped off his coverage of the events by making a child rape joke about Sandmann, stating “I do not get what Catholic priests see in these kids.”
While the many suits are pending, this month CNN independently reached a cash settlement with Sandmann, one of those we-sorta-admit-it but legally do not admit, in the words of the lawsuit, to defaming Sandmann by accusing him of “engaging in racist conduct” without properly investigating the incident. The suits contend CNN and the others would have “known the statements to be untrue had they undertaken any reasonable efforts to verify their accuracy before publication.” In other words, CNN willfully failed to commit journalism, the finding of facts, the asking of questions in lieu of packaging what was actually nothing at all into a steamy piece to fit an existing agenda.
With a win in Sandmann’s pocket and as his cases against the other media outlets work their way through the courts, others also appear ready to challenge agenda journalism via the defamation laws. Ten more Covington high school students are now suing various media for defamation. Elsewhere, writer Peter Brimelow is suing the NYT for labeling him an “open white nationalist.” Karen McDougal, a former Playboy model who said she had an affair with Donald Trump, filed suit against Fox a month ago claiming defamation. George Zimmerman, who killed Trayvon Martin, filed a defamation suit against HarperCollins, the Martin family lawyer’s publisher. Trump critic and Harvard prof Lawrence Lessig is suing the NYT, accusing them of publishing “false and defamatory” information about him. Melania is suing all sorts of outlets for defamation. Representative Devin Nunes sued CNN last month claiming the network defamed him with false reports he traveled to Vienna to meet with the Ukrainian prosecutor Joe Biden helped oust in 2016.
Under current law, most of those suits will fail. Going forward, how powerful a weapon defamation lawsuits might prove to be against agenda journalism will depend on how flexible the courts choose to be. Historically they have given great leeway to anyone, journalist or not, who appears to libel (an untrue defamatory statement in writing) or slander (same, but orally) public figures. The idea is if you put yourself out there as an actor, or a politician, you’re expected to take a few slings and arrows and so the standards of proof are higher. This is what allows tabloids like the National Enquirer to get away with making up stories about popular figures as their basic trade. Defamation as a business practice was once upon a time what they did, and not what places like the media of record are now about.
The major defenses against defamation are truth, or that the alleged defamatory statement was a statement of opinion. If CNN were to prove Nunes did go to Vienna as reported, that would end his suit. One woman who claims Trump raped her several decades ago is now suing him, claiming his Constitutionally-protected statement of innocence defamed her. Her suit demands he prove the truth of his denial to escape judgement. Opinion is exempt when it is truly some sort of opinion — Nunes is the worst Congressman ever — and not just when it is fudged along the likes of “This reporter’s opinion is Nunes traveled to Vienna.”
The hope would be justice recognizes a new media environment has crawled out from the mud, one which drags innocent people onto the national stage unnecessarily and without context in a way which is unethical and exploitative. And that even public figures, never mind the voters who select them, deserve accurate, factual reporting.
Yeah, one can hope. But in the case of CNN and Nick Sandmann, it appears the network would rather pay out a couple of million dollars then to roll the dice to see what a court would say. And hey, small world: Nick Sandmann’s attorney, Lin Wood, is the same person who successfully represented Richard Jewell in his defamation suit against CNN years ago, when the network falsely labeled him the Atlanta Olympic Park bomber.
In a rare breath of self-examination, columnist David Brooks wrote “Donald Trump is impulse-driven, ignorant, narcissistic and intellectually dishonest. So you’d think that those of us in the anti-Trump camp would go out of our way to show we’re not like him — that we are judicious, informed, mature and reasonable. The anti-Trump echo chamber is becoming a mirror image of Trump himself — overwrought, uncalibrated and incapable of having an intelligent conversation about any complex policy problem.”
That CNN has not made any noticeable changes in its stream of agenda journalism since the original incident a year ago, or since settling with Sandmann, suggests what they paid out is to them a reasonable price to continue to lie to the American public. Defamation settlements are just another business expense. The Founders assigned journalism a specific role to ensure that citizens would be able to carry out informed debates. Truth, they understood, is more than an ideal, it is a perspective. Yet over the last three years serious journalism has all but been pushed aside in a rush to do away with Trump, not by honest persuasion but by any means necessary. Fear won out, and so objectivity is now #Collusion. Seeking facts before going viral is so 2015. The media picks on kids because they can’t get Trump. We asked for an informed citizenry and we got Mean Girls.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Deplatforming: Break Up the Teach Giants and Save Free Speech
In an age of deplatforming and amid howls for censorship, the viability of free speech is at stake. Antitrust laws to break up the tech giants may be the last, best hope in this ideological war.
The First Amendment doesn’t restrain censorship by private social media companies. Progressives today revel in their new-found power to enforce their own opinions through deplatforming. That only works because the platforms matter as near-monopolies; no one cares who gets kicked off MySpace. If you end the monopolies, you defang deplatforming. Trump is preparing to unleash the Department of Justice and the Federal Trade Commission as antitrust warriors against the tech giants. That just might save the ability to hear ideas outside of echo chambers of bullied consensus.
For much of American history media published things (on paper, then on radio, movies, TV, art shows, the Internet, etc.) and the First Amendment as law and as a cultural touchstone protected political thought. Nice thoughts you and your grandma agreed with and vile thoughts from ideologies your grandpa fought against. As in “I disagree with what you say, but will fight for your right to defend it.”
Then social media hit some kind of cultural saturation point around the 2016 election. People couldn’t produce and consume enough opinion, and even traditional media dumped old-timey reporting in favor of doing stories based on what others posted online. It was a mighty climax for the Great Experiment in Free Speech, no filters, no barriers, a global audience up for grabs. Say something interesting and you went viral, your thoughts forever alongside Edward R. Murrow’s, Rachael Maddow’s, and the candidate herself.
Donald Trump then did away with near-universal agreement over the right to speak, driven by a false belief too much free speech helped him get unjustly elected. Americans began not just to tolerate, but to demand, censorship to protect them. First they came for Russian media outlets RT and Sputnik, and few shed a tear. When Twitter initially dragged its feet banning Alex Jones, a “journalist” from CNN helpfully dug through Jones’ tweets to find examples of where he broke the rules. Free speech had been weaponized, using platforms like YouTube to put Alex Jones’ thoughts alongside Edward R. Murrow’s, Rachael Maddow’s, and the candidate herself.
Jones (and soon Milo Yiannopoulos, Richard Spencer, Ann Coulter on campus, et al) had few friends outside his own supporters, so it was easy to condone his deplatforming. But that was only round one. Progressives discovered those first deplatformed voices were just the tip of a white supremacist iceberg, a legion of hate that sought to stomp out immigrants, people of color, the 50% of the population who were women, all shades of LGBT, and perhaps democracy itself. And what was fueling this dirty fire, allowing these men to organize (what the Bill of Rights calls “freedom of assembly” the deplatforming community calls “coordinative power”), raise money, and spread their bile (deplatformers call it red pilling)? Social media. Someone needed to do something about all this free speech before it was too late and America (re-)elected the wrong president again.
Somewhere along the way progressives realized people who largely thought like them controlled key platforms in America. Offline that included college campuses. Jeff Bezos could simply buy the Washington Post to silence some voices and amplify others. Advertisers could shift corporate funds to put political thought they disliked out of business. Authors could have books pulled and lose long-standing contracts. And none were bound by the 1A. But social media was where the real action was. Twitter, with a tweet, could silence what once were inalienable rights. The sparse haiku clarity of the First Amendment was replaced with groaning Terms of Service that meant whatever the mob wanted them to mean. The freedom to speak on social media no longer existed independent of the content of speech. And thus the once loathed Heckler’s Veto, the shout-down, was reimagined as the righteousness of deplatforming, the online equivalent of actually punching Nazis to silence them. And the 1A bullies were thirsty.
So there was nothing to prevent deplatforming journalist Steven Crowder for calling Vox writer Carlos Maza a “lispy queer Latin” on YouTube. In fact, Maza successfully campaigned across social media to get YouTube to demonetize the other journalist when the site initially hesitated. YouTube then announced an update to its hate speech policy broadly prohibiting “videos alleging a group is superior in order to justify discrimination, segregation or exclusion” and deleted the classic documentary studied in every film school, Leni Riefenstahl’s 1935 Triumph of the Will. YouTube also deplatformed history teachers for uploading archive material related to Adolf Hitler, saying they breached the new guidelines banning hate speech.
The site previously sent entire genres down the Memory Hole, banning “videos promoting or glorifying racism and discrimination.” That purge deplatformed News2Share, a site which covered everything from pro-Assange protests to 2A supporters rumbling with Antifa. YouTube proudly asserts since 2017 it has reduced views of “supremacist” videos by 80%.
Gab was threatened by Microsoft with the cancellation of its web domain because of two “offensive” posts made by a minor Republican candidate. Facebook/Instagram banned “white nationalist and separatist” content, including at one point documentaries from Prager University. It also deleted posts from veteran journalist Tim Shorrock criticizing the New York Times’ coverup of American support for previous South Korean dictatorships. Facebook allegedly now has an office dedicated to watching what its users do outside of Facebook, looking at their work as journalists, what they say off-line, what tattoos they have, to determine whether they should be allowed to participate on Facebook. Pintrest deplatformed groups and messed with searches involving anti-abortion content. Twitter in turn suspended the accounts of those who blew the whistle on Pinterest in retaliation.
Google refused ads for a gala featuring Secretary of State Mike Pompeo, something they claimed was in violation of their policy on “race and ethnicity in personalized advertising.” Google company sees itself at the nexus of ideological war, declaring, “Although people have long been racist, sexist, and hateful in many other ways, they weren’t empowered by the Internet to recklessly express their views with abandon.”
Google might soon add its terms of service to the First Amendment. A leaked document from the tech giant argues that because of a variety of factors, including the election of Donald Trump, what we call the “American tradition” of free speech may no longer be viable. The report lays out how Google can serve as the world’s “Good Censor,” a stern hall monitor figure protecting us from harmful content and, by extension, dangerous behavior, like electing the wrong president again. And all this comes not a moment too soon — the Southern Poverty Law Center claims it has taken “blood in the streets for tech companies to take action.” More simply put, the group just says “tech supports hate.” There are many more examples of those deplatformed.
But why wait for someone to commit hate speech when technology allows deletion when hate is largely still a thought crime? Google developed a tool called Perspective which aims to root out “hate speech” before it spreads. The software uses machine learning to spot “toxic” content in online conversations to preemptively redirect their trajectory. The tool, designed to monitor comments section, could also be deployed against content creation in real time. As you type.
Websites too right of center have serially lost their web hosts and gone dark. Website security company Cloudflare “woke up … in a bad mood and decided to kick [a hate site] off the Internet.” On another site, parents who started a petition questioning their local school’s transgender policy were deplatformed. I was deplatformed by Twitter. There are many more examples. Mashable claimed overall 2018 was the year “we cleaned up the Internet,” while Vice announced deplatforming “works” and celebrated censorship of fellow journalists.
A version of deplatforming has moved off-line as well. The ACLU — the ACLU which once stood by actual Nazis because the beautiful concept of free speech was so much more important than whatever dumb stuff those Nazis said in Skokie which no one remembers anyway– started applying an ideological/political litmus test to which free speech cases it would support following Charlottesville. Some people are now deplatformed out of the justice system.
Though the bulk of deplatforming is aimed at right of center voices, there are examples from the left, often cited as “good news” that “see, this isn’t a progressive jeramaid.” But in fact more censorship is not a good thing for free speech, however equally distributed. And this is not as much a slippery slope question as it is ideological warfare. Progressives want to eliminate the opposing ideas. They have no problem with free speech that, for example, criticizes religion, or sends drag queens to read to children in public libraries. Flag burners are welcome! Conservatives, not so much.
Two visions of free speech have overtaken America. One is now widely dismissed as dangerous because it fought for a marketplace of ideas that could include hate speech, while another danced a jig because America’s new censors are ideologically sympathetic corporations currently supporting the progressive agenda. The latter group is comprised of people (some 69% of American college students believe intentionally offensive language should be banned) seemingly unable to project a future where those corporate censors’ might support a different set of views. Instead, as a mob today they gleefully point to a viewpoint as “hate speech” and let @jack purify it away.
It is very important to underline there is no law against hate speech. Hate speech is an umbrella term used by censorship advocates to describe anything they don’t want others to be able to listen to or watch. It is very flexible and thus very dangerous. As during the McCarthy-era in the 1950s when one needed only to label something “communist” to have it banned, so it is today with the new mark of “hate speech.” The upshot is that apart from some very narrow definitions of violence-inducing words, the obligation exists to the concept of free speech independent of the content of that speech. This is also one of the most fundamental precepts of free speech in a democracy. There need be no protections for saying things that people agree with, things that are not challenging or debatable or offensive; free speech is not really needed for the weather and sports parts of the news. Instead, free speech is there to allow for the most rude, offensive, hateful, challenging stuff you (or your neighbor, your political party, your government) can imagine.
The Founding Fathers, themselves now seen as misogynist slave owners except the scrubbed version of Hamilton, had left a ticking time bomb inside the Bill of Rights. You in fact could not punch nazis to silence them without going to jail. The 1A protected hate speech! There is no justification for restricting speech so that people are not offended. Speech may offend, indeed that may be its point, but bad ideas are then defeated by better ideas. Yet today Google (and Facebook, Twitter, and their successors) seem to perceive these old ideas as more outmoded than the powdered wigs the Founders wore when they wrote them.
What to do? Efforts to extend the First Amendment to entities like Facebook, arguing they are the new public squares (seven of 10 American adults use a social media site), have been unsuccessful.
Trying to classify social media companies as “publishers” has also been unsuccessful. They insist they are “platforms.” They say they are like the phone company, which lets you talk to a friend but exercises zero control over what you say.
Being a platform is desirable for Facebook and the others as they have no responsibility for the content they print, no need to create transparent rules or appeals processes for deplatforming, and users have no legal recourse. Publishers,on the other hand, are responsible for what they print, and can be taken to court if they print something libelous or maliciously false.
Social media’s claim to be a platform and not a publisher is based on Section 230 of the Communications Decency Act. That section however was predicated on social media companies being neutral public forums in return for offering them legal protections against being sued over content they present. Companies like Twitter now want it both ways – they want the protection being a platform like the phone company offers but after the 2016 election they also want to ideologically manipulate their content as publishers do.
Breaking through the platform-publisher question will require years of court battles. The growth of much of the web is driven by the lack of responsibility for the content third parties chuck online. It is a complex situation when applied to everything from knitting site hosts to Nazi forums, and across international borders.
Yet social media entities’ control over speech is so significant a more immediate solution is demanded. Google owns 90% of the search market, three quarters of mobile and 70% of desktop browsing, and along with Facebook, 50% of online ads. YouTube dominates video. Facebook makes up two-thirds of all social media, with Twitter holding down most of the rest. Large enough on their own, the platforms also work in concert. One bans say Alex Jones, most of the others follow and then whomever is last to act is chided into action by the mob and threatened with advertiser boycotts. Eventually (as with Jones) Venmo and Paypal also cut them off.
With legal and legislative solutions ineffectual for preserving free speech online, enter the major antitrust enforcement agencies of the executive branch. The Department of Justice is preparing to investigate Google’s parent company Alphabet, while the Federal Trade Commission is doing the same for Facebook. The goal may be to break the tech giants into multiple smaller companies, as was done at the dawn of mass electronic communication in America.
Monopolies on speech first appeared as national media appeared, in the form of radio stations linked into networks. For the first time, an opinion expressed on air in New York was broadcast everywhere. The once-mighty Mutual Broadcasting System successfully filed a complaint which led to a Supreme Court battle claiming NBC and CBS controlled the national market. NBC was ultimately forced to split into two networks, Red and Blue. Regulation followed. The 1934 Communications Act required broadcast licensees to operate in the “public interest, convenience, and necessity.” This translated into things like the Fairness Doctrine, which requires broadcasters to cover politically important issues, ensuring various points of views are given equal time. The public-interest obligation also protects against one company controlling all the stations in a market.
The end of social media mega-companies, with none big enough to silence effectively any significant amount of free speech, would be a clumsy fix for a problem the Founders never imagined – citizens demanding corporate censorship because they didn’t like the results of the last election. It is nowhere near the comprehensive solution of an expanded First Amendment a democracy should grant itself, but in a world where progressives fail to understand the value of free speech it may provide enough of a dike against censorship to hold the waters back until reason again takes hold.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Julian Assange Will Die Alongside Your 1st Amendment Rights
(Reprinted from December 2018 following Assange’s arrest in London April 11, 2019)Accidentally disclosed information confirms the U.S. is actively planning to prosecute Julian Assange. What happens to Assange will almost certainly change what can be lawfully published in our democracy. This threat to our freedoms is being largely ignored because the Assange, once a progressive journalist, is now regarded as a hero-turned-zero. At stake? The ability of all journalists to inform the public of things the government specifically wants to withhold.
A clerical error revealed the Justice Department secretly has filed criminal charges against Assange. Court papers in what appears to be an unrelated case used cut-and-pasted language from documents prepared previously against Assange.
Though the new information makes clear prosecution is planned if Assange can be delivered to American custody, no further details are available. Assange is under scrutiny at a minimum for unauthorized possession of classified material going back to at least 2010, when Wikileaks burst on to the international stage with evidence of American war crimes in Iraq, and exposed years worth of classified State Department diplomatic cables. More recently, Assange has been accused of trying to manipulate the 2016 U.S. presidential election with his release of emails from the Democratic National Committee server. The emails, some believe, came to Wikileaks via hackers working for the Russian government (Assange denies this) and are deeply tied to the claims of collusion between the Trump campaign and Moscow otherwise known as “Russiagate.” Less publicized in the media but of critical concern inside the U.S. government is Wikileaks’ publication of the so-called Vault 7 materials, CIA hacking and malware tools, which revealed American technical intelligence skills and methods. Assange has hinted on at least one occasion he may have “Vault 8” materials as yet unreleased.
When Assange is prosecuted, on trial with him will be a key question concerning the First Amendment: do journalists actually enjoy special protection against national security charges? Can they publish classified documents because the national interest creates a 1A shield to do so? Or only when the government allows it?
Under the current “rules,” you get caught handing me a SECRET document, you go to jail. Meanwhile, I publish to millions, including any Russian intelligence officers with Internet access, and end up on Kimmel next to Taylor Swift. I whisper “I’m a freedom fighter, you know” into Taylor’s moist ear and she sighs.
Ask Edward Snowden, in dark exile in Moscow. Talk to Chelsea Manning, who spent years in Leavenworth while journalists for the New York Times and the Washington Post won accolades for the stories they wrote based on the documents she leaked. See how many stories today cite sources and reports, almost all of which are based on leaked classified information, stuff the government doesn’t want published yet accepts as part of the way journalism and the 1A work.
Yet despite widespread practice, there is no law rendering journalists immune from the same national security charges their sources go to jail for violating. There is no explicit protection against espionage charges written between the lines of the First Amendment. It is all based on at best an unspoken agreement to not prosecute journalists for revealing classified data, and it appears it is about to be thrown away to nail Julian Assange.
In 1971 Daniel Ellsberg leaked the Pentagon Papers, a classified history of the Vietnam War, to the New York Times. Reporters at the Times feared they would go to jail under the Espionage Act but published anyway, even as the Washington Post wimped out. The Nixon administration quickly found a court to order the Times to cease publication after initial excerpts were printed, the first time in U.S. history a federal judge censored a newspaper.
The Supreme Court then handed down New York Times Company v. United States, a victory for the First Amendment which allowed the Papers to be published, but an opinion which sidestepped the larger question about whether the 1A protects journalists publishing classified in favor of simply affirming the government couldn’t censor the news in advance. The Court left the door open for the government to prosecute both the leakers (by dismissing Ellsberg’s leaker case on technical grounds and ignoring his public interest defense) and the journalists who publish them (by focusing narrowly on prior restraint.) The Justices avoided saying the 1A offered a specific shield to journalists in matters of national security.
The Pentagon Papers case has governed everything about national security journalism from that day until the moment the U.S. government finally gets Julian Assange into an American courtroom.
On the source side, the Obama administration was especially virulent in prosecuting leakers. Trump continued the policy by throwing the book at Reality Winner. Both administrations made clear there was nothing to distinguish between taking classified documents to inform the public and taking them say with the intent to hand over secrets to the Chinese. On the other side of the equation, the journalists, the government (including, to date, Trump despite all the noise about attacking the press) has chosen not to prosecute journalists for publishing what leakers hand over to them.
The closest step toward throwing a journalist in jail over classified information came in 2014, when Obama Attorney General Eric Holder permitted subpoenaing New York Times reporter James Risen regarding a former CIA employee. After much legal muscle tussle, the Supreme Court turned down Risen’s appeal, siding with the government in a confrontation between a national security prosecution and infringement of press freedom. The Supreme Court refused to consider whether the First Amendment includes an unwritten “reporter’s privilege” in the free press clause. The Court instead upheld existing decisions finding the Constitution does not give journalists special protections. The door was w-a-y open to throwing Risen in jail.
But instead of becoming the first president to jail a journalist for what he published, Obama punted. Happy with the decision affirming they could have prosecuted Risen, with no explanation prosecutors asked the U.S. District Court to simply leave Risen alone. Risen’s alleged source went to jail instead for leaking classified. The unspoken rules stayed intact.
Unspoken rules are useful — they can be read to mean one thing when dealing with the chummy MSM who understands where the unspoken lines are even if they need the occasional brush back pitch like with Risen, and another when the desire is to deep-six a trouble-maker like Assange. Julian Assange poked the Deep State — he exposed the military as war criminals in Iraq (ironically in part for gunning down two Reuters journalists), the State Department as hypocrites, laid bare the CIA’s global hacking games in the Vault 7 disclosures, and showed everyone the Democratic primaries were rigged. None of those stories would have come to light under the MSM alone. And if Assange does know something about Russiagate (did he meet with Manafort?!?), what better place to silence him than a SuperMax.
The government is likely to cite the clear precedent from the Obama years it damn well can prosecute journalists for revealing classified information, and keep the established media happy by offering enough thin exceptions (natsec journalism groupies have already started making lists) to appear to isolate Assange’s crucifixion from setting broad precedent. Say, start with the fact that he wasn’t covered by the 1A outside the U.S., that his sources were Russian hackers seeking to harm the U.S. instead of misguided chaps like Ellsberg and Manning. Assange had no national interest in mind, no sincere desire to inform the public. He, a foreigner no less, wanted to influence the 2016 election, maybe in collusion!
Shamefully, those stuck in journalism’s cheap seats are unlikely to side with Assange, even though they wrote stories off what he published on Wikileaks. They’ll drift along with the government’s nod and wink this is all a one-off against Julian, and those who play by the government’s unspoken rules are still safe.
They’ll self-righteously proclaim Assange going to jail a sad but unfortunately necessary thing, claiming he just took things too far dealing with the Russkies, ignoring while the door to prosecute a journalist for national security has always been carefully left open by administrations dating back to Nixon, it is only under their watch that it may be slammed on the hands of one of their own whom they refuse to see, now, for their own misguided self-preservation, as a journalist. The Daily Beast’s take on all this, for example, is headlined a TMZ-esque “Unkempt, Heavily Bearded Julian Assange No Longer Has Embassy Cat For Company.”
They will miss where previous cases avoided delineating the precise balancing point between the government’s need to protect information, the right to expose information, and the media’s right to publish it, an Assange prosecution will indeed create a new precedents, weapons for the future for clever prosecutors. It will be one of those turning points journalists someday working under new press restrictions will cite when remembering the good old days.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Rachel Maddow is Russiagate’s Poster Child
“We start tonight’s show with an urgent warning: the nation is in danger, things are moving fast. Following some of the worst journalism since the McCarthy era during the run-up to the Iraq War in 2003, we said we would not do it again. We not only did it again with Russiagate, but did it worse. I’m Rachel Maddow, and I’m responsible for much of it.”
Though she doesn’t often bring it up these days, Rachael remembers the media abetted the Bush administration’s lies justifying the 2003 Iraq invasion. They spent months serving as stenographers for the push to war, reporting every carefully-timed leak without question. They pushed skeptics aside as disloyal, and spiked stories which would have raised questions about the narrative. When they got caught they pleaded never again.
Yet with Rachel Maddow as their poster child (nominations were also considered for the entire staff at CNN, David Corn, Luke Harding, Chris Hayes, Ken Dilanian, and hundreds more) journalists over the last two years did everything wrong their predecessors did in 2003.
They treated gossip as fact because it came from a “source” and said to trust them. They blurred the lines among first-hand knowledge, second/third-hand hearsay, and “people familiar with the matter” to build breaking news out of manure. They marginalized skeptics as “useful idiots” (Glenn Greenwald, who called bull on Russiagate from the beginning, says MSNBC banned him after he criticized Rachel Maddow. He’d been a regular during the Bush and Obama years.)
They accepted negative information at face value and discarded information which did not fit their preconceived narrative of collusion (WaPo never ran a story about how its reporters came up dead empty after working for months to prove Michael Cohen met with Russian agents in Prague.) They went all-in with salacious headlines, every story a sugar high. They purposefully muddled the impact of an indictment versus an actual conviction, or even a prosecution. They conflated anyone from Russia with the Russian government. They never paused to ask why there weren’t “Sources: Trump is Innocent” stories that later needed to be walked back; the errors were all on one side of the story.
They used each other as sources, creating info loops originating from nothing. A NYT article based on “persons with knowledge” appeared on some other outlet as “the NYT confirms…” Nothing became facts became evidence in their minds — Maddow turned a Politico report of a legal meeting with the Russian ambassador in “evidence of a quid pro quo” with Trump.
Maddow was also not afraid to employ some Russiagate-related good old fashioned fear mongering. In response to fake reports of Russians hacking into the power grid, she said “And it is like -50 degrees in that Dakotas right now. What would happen if Russia killed the power in Fargo today? Alright. What would happen if all the natural gas lines that service Sioux Falls just poofed on the coldest in recent memory and it wasn’t in our power whether or not to turn them back on? What would you do if you lost heat indefinitely as the act of a foreign power on the same that the temperature matched the temperature in Antarctica? What would you and your family do?”
Like followers of Insane Clown Posse, Maddow did also love her some pee tape. Despite no one on earth having actually seen the video, she knew how important it was, announcing to her viewers ““How Vladimir Putin stopped being just a KGB guy and got political power in the first place was by producing, at just the right time and in just the right way, just the right sex tape to use for political purposes.” She called Trump’s presidency “effectively, a Russian op.” If you need a refresher, here’s a neat video compilation.
They became a machine as trustworthy as the politicians they relied on. In one critic’s words “In purely journalistic terms, this is an epic disaster.”
Though the death toll across the Middle East the media helped midwife is beyond sin, the damage to journalism itself is far worse this time around with Russiagate. With Maddow in the lead, they went a step further than just shoddy reporting, instead proudly declaring their partisanship (once the cardinal sin of journalism) and placing themselves at the center of the story.
So there was Maddow, night after night in front of her serial killer’s burlap board, Trump and Putin surrounded by blurry images of Carter Page and George Papadopoulos, running twine between pins so her viewers could keep up with her racing intellect. Anyone with a Russiany surname “had ties to Putin,” “connections to Russian intelligence,” or was at least an oligarch. She nurtured an unashamed crush on Deep State clowns the Rachel Maddow of a few years back would have smirked at — Brennan, Clapper, Comey — to feed her fake facts.
She ignored or downplayed other news (Maddow devoted over 50% of her airtime to Russiagate alone. The Muslim visa ban got less than 6%.) She worked to convince Americans the cornerstone of justice was not “innocent until proven guilty” but “if there’s smoke there’s fire.” She lead journalists in knowingly publishing material whose veracity they doubted, centering on the Steele dossier. There’s gobs from every corner of the media. But it was Maddow who pressed the most extreme version of the Russiagate narrative.
Maddow became Infowars. She moved beyond the simpleton advocacy journalism of Bush-lie peddling journo tools. Maddow was going to save the country. She sought to create a story out of whole cloth that matched her own political beliefs and then convince people it was true. And it was all justified because the fate of the Republic itself hung in the balance; any day Trump might peel off a rubber mask Scooby-do style to reveal he was Putin all along.
Carrying the burden of being democracy’s Messiah was not Maddow’s alone. The Washington Post proclaimed “democracy dies in the darkness” and appointed itself the light. Marcy Wheeler, a once flawless analyst on national security, actually outed one of her sources to the FBI to blow the collusion story wide open, claiming along the way her life was in danger.
The story was Trump could never have beaten Hillary fairly. Some Russians hacked the DNC and bought Facebook ads, and that must have been what caused her to lose. Ergo, Trump was working with the Russians! Starting from a conclusion allows all sorts of stupid leaps of illogic, and Maddow did not miss any of them. Trump wanted to build a hotel in Moscow so that had to involve Putin so Putin the chessmaster used the deal to manipulate Trump. Unless it was the pee tape, the kompromat (remember how many faux-Russian spy words Maddow employed?) And there was even a dossier (not a report) and super-cool spy code names like Crossfire Hurricane. Indictments and accusations were conflated with convictions, and every action, from firing Comey to some typo on Twitter could be repurposed into proof. She could trace it all back, like the singularity of the Big Bang (though the champion of that line of unreasoning is Jonathan Chait, who explained how Trump was recruited by the Russkies who were then still the Soviet Union in the 1980s.)
Along the way pure fiction filled in the empty afternoons. Maddow briefed us the Russians had not just stolen the election, but our very government. “We are also starting to see what may be signs of continuing influence in our country,” she warned over something that no longer matters because it wasn’t true. “Basically signs of what could be a continuing operation.” How many times was our day interrupted by breaking news Mueller was going to be fired and we needed to take to the streets? How many reports speculated Trump would never leave the Oval Office voluntarily, that he would invoke a national emergency, use troops to retain power? The media gave unusual credence to what in any other era would have been termed nut jobs, people like psychiatrist Bandy Lee, who claims Trump is literally insane and a danger to himself and others? They fanned the flames of liberal fantasies such as using the 25th Amendment or the Emoluments Clause or Hamiltonian Magic Fairy Powder, anything, to end a presidency they did not want to happen. Maddow was there for every twist and turn; watching her show, one came away with the certainty everything in the past two years was a piece of the larger puzzle, and only she was able to see it all (Maddow said the same thing about Trump’s taxes; what the IRS has missed over the last four decades, she alone will parse out given the chance.)
Held aloft over the years by the enchanted spell of “just wait for Mueller Time,” one day it all fell apart. The Mueller report summary was short, but answered the most important question ever asked about a president: Trump was not a Russian asset. There was no Russiagate. No conspiracy, collusion, cooperation, or indictments for any of that and none to come and none we don’t know about sitting around sealed, no treason or perjury charges over the Moscow hotel or the Trump Tower meeting or anything else. Those accusations were explicit. They. Did. Not Happen.
The great progressive hope — America was run by a Russian stooge — was over and done. Maddow’s response? Break another cardinal rule of journalism, and bury the lede. OK, sure Barr says Mueller says no collusion if you wanna believe that, but what matters now is after Robert Mueller did not find evidence of obstruction he could charge, and the FBI before him did not find any, and after Bill Barr confirmed he did not find it, Maddow knows obstruction took place. And if only she can see the full Mueller report, she will explain it all to you (Maddow is promoting a “day of action” for Americans to take to the streets and demand the report.) It wasn’t the Russians; it was old man Barr in the drawing room with the candlestick after all!
Maddow says the same thing about Trump’s taxes; what the IRS missed over the last four decades, she will parse out given the chance (even though she was mocked for a nothing reveal on Trump taxes in 2017). Like a compulsive gambler, she’s sure the next bet will pay off. Just you wait.
In the interim while ticks tock Maddow hacks up little blobs of political phlegm — after waiting two years for Mueller, two weeks for Barr to release the report is unconscionable. But two days for Barr to write the summary was too fast, proof the fix was in. Trump threatens the rule of law, but when the system works according to the law and the Attorney General makes a decision, it’s all an insidejobcoverupcrisis.
A big focus this week for Maddow was a foreign government-owned company resisting an old Mueller subpoena. The case is in front of a grand jury, so the public does not know what company it is, what government is involved, what the case itself concerns, or whether it has any connection to Trump, Russia, or the Spiders from Mars. But watching Maddow spin it all out it seems VERY BIG.
Over the course of a recent evening she tied what she dubbed The Mystery Case into Watergate (the case being heard in the same court used in 1974 was about the only connection) and because the Watergate judge released some grand jury testimony to help drive Nixon from office this bodes ill for Trump keeping the dirt Rachael just knows is there secret. It could break this wide open!
The whole thing was delivered Howard Beale-like in what seemed like one long breath, with the certainty of someone who sees ghosts and is frustrated you can’t see them too. It got so bad recently Maddow was being corrected by her own producers in real-time.
More after this commercial break. And don’t go away, there’s too much at stake.
It took the New York Times over a year after the Iraq war started to issue itself a mild “mistakes were made” kind of rebuke. At some point with Russiagate most people will come to understand there aren’t more questions than answers. They’ll abandon the straw man of waiting for prosecutors to issue a magic Certificate of Exoneration because they understand prosecutors end things by deciding not to prosecute.
But it’s hard to see Maddow coming back into planet earth orbit. Instead of a reflective pause, she is spinning ever-more complex and nonsensical conspiracy tales, talking faster and faster to cover the gaps in logic. It is sad, but there are psychiatric terms for people who refuse to accept facts, and insist they alone understand a world you can’t even see. Delusional. Denial. Psychotic. Obsessive. Paranoid.
Maddow is a sad story. Others playing the game never had her intellect, and just fed the rubes for clicks (looking at you, Don Lemon and Chris Cuomo.) They were weekend Vichy, showbiz grifters. But Maddow believed. Rachel Maddow’s goal was to end the Trump presidency on her own. And to do so she devolved from what Glenn Greenwald called “this really smart, independent thinker into this utterly scripted, intellectually dishonest, partisan hack.”
There’s a difference between being wrong once in a while (and issuing corrections) and being wrong for two years on both the core point as well as the evidence. There is even more wrong with purposely manipulating information to drive a specific narrative, believing the end of personally saving democracy justifies the means.
In journalism school, the first is called making a mistake. The second, Maddow’s offense, is called making propaganda.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Media, Suck My Balls
A short, personal note…
Dozens of news sources — including The New York Times, Vanity Fair, Salon, The Washington Post, The Intercept, and, why not, Stormy Daniels’ ex-lawyer Michael Avenatti — all claimed Trump was the Manchurian Candidate, controlled by Putin.When we demanded evidence, you attacked us. You told us we were wrong. You said democracy was in peril, the Republic facing a clear and present danger. You kept us off your shows, wouldn’t print our skepticism.
When we appeared on smaller stages, you tried to silence us claiming what we said was “hate speech” or was sowing discord or supporting white supremist nazis and should not be protected by the First Amendment. You purged us from your social media. The MSM blacklisted us in favor of Twitter stars (Abramson, Tribe, Steyer, Wheeler) and Deep State scum (Brennan, Clapper, Comey) making ever more outrageous claims with never anything but paranoia to corroborate them. Ever-more faux “fact checks” were deployed to make it seem we were the ones saying things which were untrue.
When asking for proof is seen as disloyal, when demanding evidence after years of accusations is considered a Big Ask, when a clear answer somehow always needs additional time, there is more on the line in a democracy than the fate of one man.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
What if Political Journalism Really Can’t Snap Back from Tabloidization?
After a week in which Buzzfeed published the false claim Donald Trump told Michael Cohen to lie to Congress, quickly followed by a tsunami of inaccurate reporting over a bunch of Covington high school kids and their MAGA hats, it’s time to ask: What happens if political journalism can’t snap back from its current state of tabloidization?
Journalism is the only profession mentioned in the Bill of Rights. The Founders assigned it a specific role in helping citizens carry out informed debate. And yet in the last two years, serious political journalism has all but been pushed aside in a rush toward tabloidization, the goal of which is to do away with Donald Trump, not via informed debate but by any means necessary.
The justification is America is on the precipice of 1933 so running Trump out of office is a moral duty. Trump is a Nazi, red MAGA caps the new Klan hood. Under such dire circumstances, media can no longer risk both sides being heard (now known as “giving them a platform”) or chance unbiased reporting might inadvertently make Trump look good. Some journalists believe they were partially responsible for Hillary’s defeat, and live in fear some scrap of truth might accidentally abet Charlottesville’s everywhere controlled by Putin. The new standard is tabloid-level journalism, so every story can be a Fruity Pebbles sugar high serving the cause. Objectivity is #Collusion.
Classic tabloids like the National Enquirer run Elvis-is-alive articles, announce miracle cancer cures, and traffic in outrageous celebrity gossip. Sources are anonymous, conclusions spoon-fed, headlines bombastically out of line with the text. It’s OK in its place because absent a few blue haired old ladies in what used to be called the beauty parlor, no one really believes the stories. We’re spectators at a magic show where we know no one is actually sawed in half but it is fun to be fooled anyway. The concern is with the tabloidization of real news.
The most recent example is Buzzfeed’s claim documentary proof exists Trump ordered his attorney (whom the media by common agreement libelously calls a “fixer”) to lie to Congress about the Moscow Project. Tabloids use assumed narratives and prejudices – a cure must be out there to save Mom if only Big Pharma would get out of the way – and in this case the narrative chain is Trump wanted to build a hotel in Moscow so the Russkies helped him win the presidency so he’s now their asset and so it all has to be lied about and so Trump has to be in on it.
Lack of actual evidence has held back Russiagate in all its metastasizing forms for over two years. Enter Buzzfeed, who sets the hook with something new: its mystery sources saw the evidence Trump told Cohen to lie. One of the Buzzfeed authors, albeit one with a history of plagiarism and misreporting going back years, kinda sorta maybe said he personally saw it too.
Same as with the miracle cure, to any objective person Buzzfeed’s story was too good to be true: a literal paper receipt for perjury! Trump can’t lie his way out of that! He’ll be out of office as fast as the paperwork can be processed! Impeach the MF!
Legacy prestigious media outlets such as WaPo and the New York Times picked up the story, having learned how to hide behind the thong of appending “As reported by Buzzfeed…” after which for all they care they can headline The Earth is Flat! at no reputational risk to themselves. In 2019 they are no longer responsible for what they (re)print.
Congressman Jim Clyburn spoke for the media and his fellow pols when he said “I don’t think that my Democratic friends are in any way rushing to judgment because they qualified right up front, ‘If this is true.’ When you preface your statement with ‘If this is true,’ that, to me, gives you all the cover you need.” One imagines with horror those words chiseled on a journalism building Clyburn funds at his alma mater.
The only sort of problem is Buzzfeed’s story wasn’t true. It was shut down by a statement from the Special Counsel’s office in less than 24 hours, the first such rebuke ever issued, though to be fair, James Comey also stated some New York Times reporting on Russiagate was wrong. The media in both instances characterized being told it was wrong by the definitive source it otherwise deified as just a “dispute,” “push back,” a “controversy.”
Buzzfeed’s specific reaction included a clumsy jujitsu of challenging Mueller to tell them exactly what he thought was inaccurate. They perhaps understood in the tabloid world truth has a viral-length expiration date, that truth is only what people are willing to believe anyway, including that magicians really can saw women in half on stage. Falsehoods are the work of bad sources, even though we’ll try again next week with basically the same story from new sources. All that matters is an infusion saying Trump is evil and that end justifies the journalistic means.
Advocacy journalism, tabloid style, is not about pointing out real wrongs with an occasional correction issued. It is about teeing up tales to support a political goal. Let Buzzfeed open the door for WaPo to legitimize the story. Members of Congress then bypass the fuzzy source to cite the name-brand one (“according to sources” becomes “according to the Washington Post”) until Democrats want hearings into the Buzzfeed story Mueller’s office already made clear isn’t true.
In the same week as Buzzfeed, a selective short clip of an encounter between some white Covington, Kentucky high school students wearing MAGA hats, a Native American (whom the media falsely lionized for days as a Vietnam vet), and some black protesters was fanned into a racial showdown, when all it took was for someone to watch the whole recording of the interaction to realize that was not true.
Or the mass-proclamation conservatives were furious over Alexandria Ocasio-Cortez’s silly dance video when no one was. Or this long list of Russiagate game-changers that weren’t. Or two-years’ worth of false breaking news somebody in the Trump administration was about to flip, quit, be indicted, get fired or fire Mueller.
Tabloid journalism for a political ends has assumed priority over reporting facts. People are being conditioned to overreact. Name calling is commentary. Prejudice and stereotyping are offensive when aimed left, allowed when projectiled by Pulitzer-winning columnists at Trump voters. Headlines can be less true than the text. Belief trumps truth. The ends justify the means when attacking a political opponent. Too much free speech plays into the hands of the authoritarians. The term “both sides journalism” is a now a negative one. Journalists have convinced themselves serving up the correct sort of political bias is equivalent to serving the nation.
It’s sad some measure of the truth has to come from Whoopi Goldberg on The View, who wondered why the media rushed to judge the Covington teens. “Because we’re desperate to get Trump out,” co-host Joy Behar asserted.
Political journalism adopting the standards and methods of the tabloids is a true threat to democracy. As one writer put it “let’s not underestimate the damage being done… people of all political stripes will acknowledge the important role that free and unfettered discourse plays in the democratic process. By extension, when that discourse is poisoned, so too is the process.”
The Buzzfeed story, followed so quickly by the Covington high school story, should be a significant moment of reflection, when the media remember they play a critical role in our system. Yet there are few calls against the misuse of sources, the rushes to judgment, the purposeful dropping of objectivity, the loss of seeking out other perspectives, the problem of reporting wrongly too often, the slurring of editorial into reporting.
Still no one asks why there aren’t mainstream “Sources: Trump is innocent” stories that later need to be walked back. No one demands as much emphasis on corrections as on the original false story. Instead, the standard response to being caught wrong seems to be either dig in as with Buzzfeed, or at most to delete a Tweet or two about the Covington mess, as if in the age of the Internet that makes something to have never happened.
It is unlikely things will change, especially when this model of journalism is also good for a business where clicks equal dollars. The sad thing is craven economic self-interest is the least worst explanation for tabloidization. Democracy dies in the darkness? It’s in danger in plain sight.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
What if Political Journalism Can’t Snap Back from Tabloidization?
What if mainstream political journalism can’t snap back from its current state of tabloidization? After a week in which Buzzfeed brought the false claim Trump told Michael Cohen to lie to Congress, quickly followed by a tsunami of inaccurate but inflammatory reporting over a bunch of Covington high school kids and their MAGA hats, the media needs to do more than apologize and delete a few Tweets. It’s time for a dollop of introspection.
Journalism is the only profession specifically mentioned in the Bill of Rights, and the Founders assigned it a specific role, helping citizens (we have a task assigned as well) carry on an informed debate. And yet in the last two years, serious political journalism has all but been pushed aside in a rush toward tabloidization. Political journalism has slipped into a kind of con job to wash away the dangers of free speech.
The con is this: since by acclamation America is perched on the precipice of 1933 (you’re reading this somewhat tongue-in-cheek but too many people are dead serious about the historical warning) resisting Trump’s policies until he can be run out of office (emoluments lawsuit, 25th Amendment, indictment, impeachment, an election if it really has to come to that) is a moral duty. Trump and his MAGA people are Nazis, their red caps the equivalent of Klan hoods. This is for the first time in American history beyond the push-pull of politics. The survival of the Republic itself on the line, dammit don’t-you-know.
It follows journalism in the specific and free speech more generally cannot afford to allow for both sides to be heard (now known as “giving them a platform”) or allow objective reporting that might inadvertently make Trump look good. Journalists, some of whom literally believe they are responsible for Hillary’s defeat, live in fear they might abet the government-sanctioned mass lynchings of blacks and beatings of transpeople they expect to break out across America, Charlottesville’s everywhere controlled by Putin. Objectivity is #Collusion. Advocacy is #Resistance. The new standard is tabloid journalism, where every story has to be a Fruity Pebbles sugar high serving the cause of freedom.
While the tension between objectivity and advocacy isn’t particularly new (read up on The Jungle and The Way the Other Half Lives) what’s new is the near-complete way the mainstream media has created an anti-Trump narrative of Charlottesville’s everywhere controlled by Putin while condemning any outlet not on board as the Fox in democracy’s henhouse. Demonizing a perspective has gotten rougher in the age of deplatforming and weaponized “fact checking.” A new step in the wrong direction is to claim talking heads have blood on their hands for supporting disagreeable but still legitimate political positions say on restricting immigration or withdrawing from Syria. It’s a bit much, but it falls within a snappable-back range for now.
Classic tabloids like the National Enquirer once upon a time ran Elvis-is-alive articles, or reported on aliens walking among us, or trafficked in outrageous celebrity gossip. It was OK, because absent a few blue haired old ladies in what used to be called the beauty parlor, no one really believed the stories were true. The con included us as willing participants, spectators at a magic show where we know no one is actually sawed in half but it was fun to be fooled anyway.
The greater concern lies in how alongside all this social media has tabloidized “real” news. The most recent example is Buzzfeed’s use of anonymous sources to claim documentary proof exists Trump ordered his attorney (whom the media by common agreement libelously calls a “fixer”) to lie to Congress about the so-called Moscow Project. Tagged on is the fact-free narrative chain of Trump wanting to build a hotel in Moscow so the Russkies helped him win the presidency so he’s now their asset. To any objective reader, same as an Elvis sighting, Buzzfeed’s story was too good to be true: a literal paper receipt for perjury before Congress. Trump could not lie his way out of this, and he would go down for basically the same crime Bill Clinton was impeached over. Trump would be out of office as fast as the paperwork could be processed.
The Buzzfeed story appeared out of nowhere, went globally viral, and was shut down by the Special Counsel himself, all within a span of hours.
So that’s why there are no viral stories that need to be walked back claiming “Trump is innocent.” Nope, the media wants to believe he is guilty of, well, something, and they know they are peddling that belief to a willing audience. A good con also has some truth in it, otherwise the con artist’s job is much harder. Cohen actually did lie to Congress. Next step is knowing most media and many Americans want to believe Trump was involved. Not a hard sell. But it has been the lack of actual evidence that has held back Russiagate in all its metastasizing forms for over two years, you know, actual proof, something you can hold in your hand or listen to online, not simply the now-you-see-it now-you-don’t self-serving statements from convicted perjurers, anonymous officials, and felons we love to hate.
Enter Buzzfeed, who sets the hook with something new, and it appears given Mueller’s unambiguous press statement, wholly untrue: Buzzfeed’s sources have seen written evidence Trump told Cohen to lie. One of the Buzzfeed authors, albeit one with a history of plagiarism and misreporting going back years, kinda sorta maybe even said he personally saw the documents.
Social media rockets the story around the globe. Media outlets as once prestigious as the WaPo and New York Times have learned how to hide behind the micro bikini bottom of appending “As reported by Buzzfeed…” after which for all they care they are allowed to headline “The Earth is Flat” at no cost to themselves. In 2019 they are no longer responsible for what they print. Democratic Congressman Jim Clyburn spoke for all media and pols when he said “I don’t think that my Democratic friends are in any way rushing to judgment because they qualified right up front [by saying], ‘If this is true.’ When you preface your statement with ‘If this is true,’ that, to me, gives you all the cover you need.”
It doesn’t hurt that this model of journalism seems to be also good for business in a market where clicks equal dollars, in the words of one NYT columnist “reinforc[ing] the prejudices of your readers.” The sad thing is craven economic self-interest in the service to social media mob-think is the least worst explanation for this phenomena of tabloidism.
The free press the founders wrote into the Bill of Rights isn’t part of some long con, where the goal is to take the rubes for their ticket money, or give them a chuckle over Elvis. No, the serious media adopting the standards and methods of the tabloids, feeding us back what we want to hear, pretending this all is serious and real without the little wink which says “pssst, we’re in on it with you…” is a very bad thing for a democracy. As one writer put it “let’s not underestimate the damage being done… people of all political stripes will acknowledge the important role that free and unfettered discourse plays in the democratic process. By extension, when that discourse is poisoned, so too is the process.”
We are being taught there is no truth beyond ever-briefer viral spasms. Falsehoods are just bad sources, we’ll try again next week with basically the same story about Trump from hopefully better sources. Because all that matters is proclaiming some moral stance — Trump is evil, really evil, not just a bad president — and that ends justifies the journalistic means. Advocacy journalism in 2019 is not about pointing out real wrongs with the occasional professional missteps caused by the haste of social media. Nope, it is about teeing up “crimes,” with any small outlet opening the door for the bigger ones to legitimize the story. Members of Congress, citing the Times or the Post, then do things like demand investigations into the Buzzfeed story even after Special Counsel Robert Mueller’s office made clear the original story wasn’t true.
It’s not like the Buzzfeed saga is a one-off. In the same week, a carefully edited clip of an encounter between some white Covington, Kentucky high school students wearing MAGA hats, a Native American, and some black protesters was fanned into a racial showdown, when all it took was for someone to first watch the whole recording to realize that was a completely false narrative. Or CBS’ lead journalist falsely Tweeting he was under an arrest warrant in Egypt. Or something as silly as a mass-proclamation conservatives were furious over Alexandria Ocasio-Cortez’s silly dance video. Or this long list of Russiagate game-changers that weren’t. Or two-years’ worth of inaccurate breaking news somebody in the Trump administration was about to flip, quit, be indicted or get fired. The narrative has assumed priority over reality. People are conditioned to overreact as their first impulse. Somebody is going to get hurt.
Buzzfeed’s reaction was to “stand by its reporting” and challenge Mueller to proofread their work for them and be more specific in telling them where they screwed up, beyond the Special Counsel’s clear, blanket statement the Buzzfeed article was simply not accurate. That was the first such rebuke issued by Mueller in some two years. Though to be fair, James Comey also stated in front of Congress some New York Times reporting on Russiagate was wrong. The media in both instances characterized being told it was wrong by the definitive source as a “dispute.” Otherwise, the standard response to being wrong is to apologize and maybe delete a Tweet or two, the damage done, the zeitgeist stirred.
The Cohen story, followed so quickly by the Covington high school story, should be a pivot point, a significant moment of reflection for the media when they stop, take a deep breath, and remember why they really exist as a free press. Hint: they were written into existence by the Founders to play a critical role in critical thinking in our system of government. This tabloidization is already out of control, the media already largely written off as a force for good through the 2020 election cycle. One hopes after that some amount of resiliency will take hold, and the press will snap back.
Now that way of dealing with political enemies, choosing stereotypes and falsity over accurate reporting, does indeed have some echoes back to 1933.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Social Media Legally Falls Under the First Amendment; Here’s How
A court just came close to acknowledging the First Amendment applies to social media. But there is still a lot of ground to cover to protect our free speech rights online.
In Davison v Randall, a local government official blocked a constituent from an “official” Facebook page. The court held this to be viewpoint discrimination, a 1A violation in a long-recognized category of unconstitutional speech restraint. Advocates like the ACLU and Knight Institute supported the case to bolster the argument Trump cannot block people on his Twitter feed; lower courts have agreed it is unconstitutional under the 1A for Trump to silence his critics this way. The Department of Justice is appealing, and the ACLU is happy to build precedent with smaller cases like Davison v Randall, as the Trump case almost certainly will wind its way to the Supreme Court.The ACLU is likely to continue to prevail against Trump. The problem is while narrowly focusing on an individual politician’s responsibility not to block users with unpopular opinions, the courts continue to allow Facebook, et al, to do exactly the same thing on a much larger scale.
In the age of Trump, social media companies’ suspensions skew against conservative and libertarian commentators (I am permanently banned from Twitter) but Facebook could just as easily block all Sanders supporters, or anyone left handed for that matter. Despite this, and driven in part by the ACLU’s apparent desire to only disadvantage Trump and not enlarge 1A protections in ways that might empower his critics, the broader issues are being bypassed in favor of a narrower one.The struggle to grow the 1A to cover social media has a history of piecemeal progress. One victory confirmed the status of social media, when the Supreme Court struck down a law making it a crime for registered sex offenders to use Facebook. Justice Kennedy wrote in Packingham v North Carolina social media is now part of “the modern public square.” Denying access violated the First Amendment.
But the decision made clear unconstitutional denial still has to come from the government. Facebook and others may deny those speech rights any time they want. The argument only the government is covered by the 1A seems to have reached its limit with technology that so grossly delineates whose literal finger clicks the mouse when the results and implications for free speech in our society are exactly the same.
Technology and market dominance complicate the 1A environment by giving greater power to a handful of global companies (currently all American but imagine the successor to Twitter based in Hong Kong with Chinese censors at the helm) even as the law seeks to crave the simplicity of the 19th century. That way of thinking requires willful ignorance that Facebook would never act as a proxy for the government, unconstitutionally barring viewpoints on behalf of a politician who would not be allowed to do it themselves.
Except it already happened. Following a hazy intelligence community assessment accusing the Russians of influencing the 2016 presidential election, Twitter and Facebook punished Russian media RT and Sputnik by banning their advertising in line with the government’s position the two did not deserve the protections of the 1A. Senator Chris Murphy got it. He demanded social media censor more aggressively for the “survival of our democracy,” with companies acting as proxies for those still held back by the First Amendment.
It may even seem to some a valid argument in the realm of social media. But when the same proxy idea appears in the flesh, the underpinning seems less acceptable. It is easy to see how the government using federal law enforcement to bar entry to opposition supporters at a town hall meeting held at some theater is unconstitutional. It is equally easy to see the president’s best friend hiring private security guards to do exactly the same thing would not pass a court challenge, yet that is basically what is currently allowed online.The sub-argument the theater is private property and thus outside the 1A (just like Twitter!) does not hold up. The Supreme Court recognizes two categories of public fora: traditional and limited public forums. Traditional public forums are places like streets, sidewalks, and parks. Limited public forums are not traditionally public, but ones the government has purposefully opened to some segment of the public for “expressive activity.” Like that town hall meeting held in a private theater.
By inviting the public to Facebook for comment, the government transforms a private place into a limited public forum covered by the 1A. The Court only requires a “forum” for 1A purposes “to be private property dedicated to public use” or when the government “retains substantial control over the private property.” Like how the government cannot censor public library books even if the library is located in a private storefront. Like a Facebook page set up and administered by the government.
The most analogous example of how shallow the debate is comes from a technology of the 1980s, one originally expected to change the nature of debate: public access television. Before the Internet, it was envisioned privately-owned cable TV companies would make air time available to the public as “the video equivalent of the speaker’s soapbox.” Even though the channel and equipment used to produce the programming was privately owned, the programming fell under the 1A. The Court concluded “public access channels constituted a public forum, notwithstanding that they were operated by a private company,” the dead solid perfect equivalent of social media.
The faux public-private argument is being double-plus used as a work-around to prohibit disagreeable speech, say by labeling a conservative viewpoint as hate speech and letting @jack banish it. Millennials who celebrate Twitter not being held back by the 1A believe that power will always be used in their favor. But back to the law, which sees further than the millennial obsession with Trump. In City of Lakewood v Plain Dealer the Court held all that power was itself a 1A problem: “The mere existence of the licensor’s unfettered discretion, coupled with the power of prior restraint, intimidates parties into censoring their own speech, even if the discretion and power are never actually abused.”
The once-upon-a-time solution was to take one’s free speech business elsewhere. The 2019 problem is the scale of the most popular social media platforms, near global monopolies all. Pretending Facebook, which claims it influences elections, is just another company is to pretend the role of unfettered debate in a free society is outdated. Technology changed the nature of censorship so free speech is as much about finding an audience as it is about having some place to speak. In 1776 you went to the town square. In 2019 that’s on popular social media. Your unknown blog is as free, and irrelevant, as a Colonist making an impassioned speech alone in his barn.
Asking for the 1A to reach now to social media is in line with the flexibility and expansion the 1A has shown historically. For example, it wasn’t until the post-Civil War incorporation doctrine that the 1A applied equally to the states and not just the federal government. Some private institutions accepting federal funding are already covered by the 1A. The Supreme Court has regularly extended 1A protection to new and non-traditional speech, including nudity and advertising.Facebook and others like it have become the censors the Founding Fathers feared. The problem is the ACLU and other advocates today apply political litmus tests to what speech they will defend. And so they aggressively seek to force the 1A into social media to prevent Trump from blocking users he dislikes, but they have not taken on cases which would force the 1A into social media to prevent Facebook and Twitter from blocking users whose conservative and libertarian ideas upset their own viewpoints.
The greater First Amendment challenge is thus stymied by politics, even while the problem only grows with the greater impact of social media. Yet the cornerstone of free speech, the critical need to have all views represented in a marketplace of ideas, has not changed. One hopes these core elements of our democracy will collide inside the Supreme Court in the near future. If not, the dangers of narrow, short term thinking, that Trump is the problem, not the one of access to free speech, will become more obvious.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Google, the “Good Censor,” is Going to Think for You
Google might soon add its Terms of Service to the First Amendment.
A leaked document written by Google argues because of a variety of factors, including the election of Donald Trump, what they call the “American tradition” of free speech may no longer be viable. The document lays out how the company can act as the world’s “Good Censor,” protecting us from harmful content and, by extension, harmful acts like electing the wrong president again.
The document, which Google has officially characterized as research, is infuriatingly vague about whether the company has made any decisions or taken any action. So think of all this as a guidepost, like the Ghost of Christmas Future showing us the worst case scenario.
The company is talking about changing the rules so the freedom to speak will no longer exist independent of the content of speech. What you can say could depend on Google’s opinion of whether or not it will negatively affect others. To Google, the personal liberty of freedom of speech might need to be balanced against collective well-being. The company acknowledges for the first time it has the responsibility and power to unilaterally adjudicate this battle between “free-for-all and civil-for-most” versions of society.
We probably should be paying more attention to how they plan to do this, but because the document leaked on Breitbart, and because the initial rounds of censorship have impacted right of center, it has received little critical attention. But the significance of Google’s plans extends beyond the left-right fight; which content is censored is easily changed. If this plan is implemented, everything you will ever read online will be judged before it reaches you. Or doesn’t reach you.
The old ideas seem as archaic to Google (Facebook, Twitter, and their successors) as the powdered wigs the Founders wore when they wrote them. People should be free to say nearly anything they want. In the marketplace of ideas good will overpower bad. If we block one person’s speech, we can soon block others, right up to when it comes to us. The collective right to free speech is more important than an individual’s reaction to that speech. There is an uncomfortable duty to protect speech irrespective of its content.
Jefferson had a good run. Then the election of Donald Trump scared the free speech ideal out of Google. Could they have been… responsible… for helping elect a threat to democracy, the last president, someone who would shape-shift into a dictator? Should they have tried to stop him? Wouldn’t you have killed baby Hitler if you could have?
Under such circumstances, free speech is reimagined by many as a liability which bad actors will exploit judo-style, the tools of democracy used to destroy democracy. The Google document warns “online manipulation and disinformation influenced elections in more than 18 countries, including the U.S. [as] free speech becomes a social, economic and political weapon.”
The irony is the Internet was supposed to be, and maybe briefly was, the highest expression of what is now the legacy definition of unfettered speech. Anyone could start a website to stand alongside the .govs. One voice was as loud as anyone else’s, and search engines were the democratizing connective tissue. Google was created to organize the world’s knowledge, not help control it. Free speech flourished online. Government censors had real restrictions; we know them as borders.
Not so for global entities like Google. What doesn’t pass through their search engines or social media travels through their servers and cloud storage. There is no more pretending any but a minority of users can use another tool, or ignore the web, and still functionally live in the real world. Google sees itself at the nexus of this historic change, saying “Although people have long been racist, sexist, and hateful in many other ways, they weren’t empowered by the Internet to recklessly express their views with abandon.” We apparently can’t handle that, and Google is, for the first time in human history, in a position to do something about it. After all, they acknowledge they “now control the majority of our online conversations” so the Internet is mostly whatever they say it is.
At that point, Google worries, the “we’re not responsible for what happens on our platforms” defense crumbles. How much the last election was influenced doesn’t matter as much as the realization the tools are in place to do it more effectively next time. Existing laws can limit foreigners buying political ads stuffed with controversial news, but if Americans want to do the same thing laws not only don’t limit them, the legacy version of the 1A demands they be allowed to blast out hate speech and gendered bigotry. Something has to be done. Google’s document says they as the apex predator can now create online “well-ordered spaces for safety and civility.”
There is no one to stop them. It is very clear what private companies can do vis-a-vis speech; the argument is over what they should do. Thanks to Section 230 of the Communications Decency Act, Google is shielded from traditional publishers’ liability and responsibility. The 1A does not apply. No one at Google stands for election. Users matter only in the aggregate of millions of clicks. Google as the Good Censor would be accountable to pretty much no one (though the Supreme Court last week agreed to hear a long-shot case that could determine whether users can challenge social media companies on free speech grounds.)
As proof-of-concept – what they are capable of doing – the Google document cites Charlottesville. Following racial violence, Google, GoDaddy, and Cloudflare quietly ganged up to end their relationships with The Daily Stormer, “effectively booting it off the Internet.” Google noted “While some free speech advocates were troubled by the idea that ‘a voice’ could be silenced at its source, others were encouraged by the united front the tech firms put up.” Same with Alex Jones, as corporations serially kicked him off their sites. Facebook and Twitter also actively censor, with Facebook removing over 800 political pages for “coordinated inauthentic behavior,” an Orwellian term Facebook claims means they were not forums for “legitimate political debate.”
Google and the others aren’t acting in a vacuum. Some 69% of American college students believe intentionally offensive language should be banned. The ACLU now applies a litmus test to cases it defends, weighing their impact on other rights (for example, the right to say the N-word versus the rights of POC not to hear it), declaring free speech can be secondary to other political goals. As Google suggests, censorship has a place, per the ACLU, if it serves a greater good.
The document makes clear Google understands current censorship efforts have fallen short. Decisions have been imprecise, biased, and influenced by shares and likes. Yet while acknowledging they never will please everyone, Google is emphatic it can’t escape “its responsibility for how society functions and progresses.” So the document is rich in words like transparency and fairness as it wrestles with the complexity of the task, with Google envisioning itself as more an imperfect but benign curator than Big Brother. But like a bad horror movie, you can see the ending from miles away.
Eliminating voices to “not influence” an election is influencing an election. Once one starts deleting hate speech, there is no bottom to the list of things offensive to someone. Once you set your goal as manipulating thought via controlling information, the temptation to use that tool will prove great. Why not manipulate stock prices to fund “good” nonprofits and harm bad ones? Who should be elected in Guatemala? What’s the Google solution for that land dispute in St. Louis? It is so easy. Just placing links for one candidate above another in a test search increased the number of undecided voters who chose that candidate by 12%.
The cornerstone of free speech – the absolute right to speak remaining independent of the content of the speech – is now in the hands of corporate monopolies, waiting for them to decide whether or not to use the power. Where the Supreme Court refused to prohibit hate speech, Google can do so. Where the 1A kept the government from choosing what is and isn’t called true, Google may decide. Journalists can take a first pass at writing news, but Google is the one positioned to determine if anyone sees it. Like some TV murder mystery, Google is perched on the edge of a terrible decision, having tested opportunity, means, and method. All that’s left is the decision to pull the trigger.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
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