Category Archives: Free Speech

Constructing Our Own Realities

In the mid-1990s, as part of the publisher’s effort to promote my first book (“What’s a Nice Republican Girl Like Me Doing at the ACLU?”), I was booked onto a call-in radio show in South Carolina. Belatedly, I found that the show I was on followed Rush Limbaugh; the calls that came in reflected that audience.

I vividly remember one of those calls. The country had been going through one of those periodic arguments about whether the religion clauses of the First Amendment preclude  posting religious texts–specifically, the Christian version of the Ten Commandments– on the walls of public buildings. (It does.)

The caller argued that the Founders would have had no problem with such practices, because “James Madison said we are giving the Bill of Rights to people who live by the Ten Commandments.” This supposed quotation had been circling through rightwing organizations; as I explained to the caller, not only had it been rebutted by Madison scholars, the statement was dramatically inconsistent with everything we know Madison did say. At which point the caller yelled, “Well, I think he said it!” and hung up.

This exchange occurred before the Internet, before Facebook, Twitter and other social media facilitated our ability to fashion our own realities. I recount it because it illustrates how desperately many of us–probably most of us–look for evidence that supports our biases and beliefs.(As the Simon and Garfunkel song says, “man hears what he wants to hear and disregards the rest.”)

What brought this exchange to mind was a column in the Washington Post by Ralph Peters, a commentator who has just left Fox News.

As I wrote in an internal Fox memo, leaked and widely disseminated, I declined to renew my contract as Fox News’s strategic analyst because of the network’s propagandizing for the Trump administration. Today’s Fox prime-time lineup preaches paranoia, attacking processes and institutions vital to our republic and challenging the rule of law.

Four decades ago, as a U.S. Army second lieutenant, I took an oath to “support and defend the Constitution.” In moral and ethical terms, that oath never expires. As Fox’s assault on our constitutional order intensified, spearheaded by its after-dinner demagogues, I had no choice but to leave.

Peters, who is very politically conservative, says the network was once an outlet for responsible conservatism (an assertion with which we might take issue), but has become an intellectually-dishonest propaganda source. There is a good deal of evidence that Fox has always been more interested in delivering Republican talking points than in objective reporting; what Peters is reacting to may simply be the outlet’s increasingly blatant partisanship. The age of Trump isn’t noted for subtlety.

Fox bears a considerable amount of the blame for creating an environment in which voters prefer spin and propaganda to objective fact, science and evidence. Its influence is waning now, as television channels and internet offerings proliferate, and as its older audience dies off, but America will be dealing with the damage it has inflicted for many more years.

That said, the basic challenge we face isn’t new. Voters have always “cherry picked” information. Confirmation bias didn’t suddenly appear in response to Fox or Facebook.

Fox’s business plan was explicitly focused upon providing ideologically compatible “news” to an “underserved” Republican audience. (Less-well-known Sinclair Broadcasting is equally dishonest.) My caller, back in the mid-1990s, may have gotten his misinformation from books by “historian” David Barton, who made his money giving fundamentalist Christians a version of history more to their liking. There will always be ethically-challenged entrepreneurs willing to make a buck pandering to our fears and prejudices.

The question is: what can we do about it? How do we counter propaganda effectively, without doing violence to free speech and the First Amendment? The only answer I can come up with is better civic and news literacy education, but that will take time and a commitment to revitalize the public education that Trump and DeVos are trying to dismantle.

It’s a conundrum.

Activist Courts And Unintended Consequences

The Supreme Court recently heard oral arguments in the case of Janus v. American Federation of State, County and Municipal Employees. As a recent op-ed in the New York Times put it, unlike other cases that find their way to the country’s highest court, we already know how this one is going to be decided.

The Supreme Court is widely expected to rule in favor of Janus on a party line 5-to-4 basis and overturn a 1977 precedent, Abood v. Detroit Board of Education. Abood permitted fair-share fees, which cover only organizing and collective bargaining and do not include social or political activities in the public sector.

Why are we so sure about the Janus outcome? The court heard a similar case in 2016, and it split 4-4 after Justice Antonin Scalia’s sudden death. Neil Gorsuch has proved himself more conservative than Justice Scalia on most issues, so there is little hope that labor will win this time around.

I will, for purposes of this post, omit my diatribe about stolen Supreme Court seats and the erosion of time-honored democratic norms.

The  plaintiff in this case is asserting a First Amendment right not to be compelled to support unions, even when that “support” is limited to payment for services from which he benefits. The op-ed to which I link focuses on the unintended consequences of his likely victory–consequences that would give pause to justices less ideologically rigid than those currently serving.

The popular understanding of the case is limited to recognizing that, if the court bans fair-share fees, it will hurt unions. It will deprive them of funds and (more insidiously) encourage “free riding”–non-contributing workers’ ability to benefit from the contributions of others. Those are intended consequences of what has been a concerted, well-funded effort to destroy workers’ ability to bargain collectively.

But fewer people have considered what conservatives are risking: Union fair-share fees do not exist in an employment vacuum; the same logic and legal framework that permits the government to mandate these fees allows the government to conduct itself as an employer. Janus is largely being discussed as a case that is likely to defund and disrupt labor unions, but the case cannot simply injure unions and leave everything else intact.

At last count, federal, state and local governments employed over 21 million workers, so the courts have had to develop a framework for governments to be able to manage their work forces without constantly confronting the Constitution. Imagine if a teacher called in sick, and an administrator had to procure a warrant before searching her desk drawer for a text book, or else risk violating the Fourth Amendment. Or imagine if a police sergeant who tells an officer that he didn’t have time to listen to a complaint about the break room now has to worry that he violated the First Amendment.

Over the years, the Court has carefully balanced the government’s legitimate needs as an employer against the equally compelling need to protect public employees when they exercise their constitutional rights in the workplace. A “victory” for Janus in this case threatens to turn every workplace dispute into a constitutional issue.

The prominent conservative legal scholars Eugene Volokh and William Baude went further and filed a brief supporting the unions. They argue that the government compels subsidies of others’ speech all the time and that there is nothing constitutionally suspect about that. Mr. Volokh and Mr. Baude point to the fact that we don’t have a right to opt out of paying a portion of our taxes for issues we disagree with.

Furthermore, the government regularly requires people to purchase speech related to services that they may not want, such as doctors and lawyers having to enroll in continuing education courses. Or even the general requirements that people purchase car insurance or vaccinations, despite the fact that some may disagree with that mandate. To recognize a general First Amendment right to not fund things that one may disagree with, despite the government’s interests in mandating such payments, would completely upend many areas of life that are necessary for our society to function.

The Court used to be wary of decisions that would “unleash a floodgate of litigation.”  The likely Janus victory will be evidence that it no longer cares.

Reviving Civility

A few nights ago, I participated in a panel discussion devoted to the revival of civility, as part of the annual Spirit and Place Festival sponsored by IUPUI. The evening began with a soliloquy of sorts on the subject by former Congressman/Statesman Lee Hamilton, then segued to the panel. I’m not sure any of us had especially useful recommendations for how we might inject mutual respect into political conversations, or ensure that those discussions are based upon verifiable fact, but we tried.

Since I have no idea how Americans of good will might revive civility, or rescue it from the Trumpian depths of Twitter and media comments sections, I took a somewhat different approach to the subject, which I am sharing, below.

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When I was asked to participate in this panel, my mind went back twenty years. I was then the Executive Director of Indiana’s ACLU, and I had mounted a major campaign to promote civility and encourage more civil discourse about hot-button civil liberties issues. Several members objected. They let me know that they were upset–that they thought such an effort was inappropriate because they were convinced that an emphasis on civility somehow undermined, or was evidence of less than robust support for, Free Speech.

That misunderstanding is evidently shared by the Neo-Nazis who marched in Charlottesville, the creators of racist, homophobic and anti-Semitic websites, and participants in proliferating Facebook confrontations and Twitter wars. They defend their vitriol as “Free Speech;” and disparage and dismiss civility as “political correctness.”

They couldn’t be more wrong.

This nation’s Founders understood that all ideas, no matter how noxious, should be available for discussion. They didn’t protect speech because they underestimated the danger bad ideas could pose; they knew how powerful –and damaging–ideas could be. They protected free expression because they understood that giving government the authority to decide which ideas are acceptable—what sort of speech should be permitted– was far more dangerous than the bad ideas themselves.

But that’s where civility comes in.

If free speech is to achieve its purpose—if it is meant to facilitate a process in which citizens consider and vet all ideas, consider all perspectives—we need to listen to each other. Insults, labeling, dismissing, racist “dog whistles”—all those hallmarks of incivility—make it impossible to have the kinds of genuine conversations and productive disagreements that the First Amendment is intended to foster.

Screaming invective across political or religious divides actually undermines the purpose of the First Amendment’s Free Speech provisions. Is such speech protected? Absolutely. Is it useful? Absolutely not.

There are multiple reasons for the recent rise in incivility, but the anonymity and distance afforded by the internet and social media are clearly important contributors. As many of you know, I have a daily blog, and I’ve found it necessary to impose standards of conduct for commenters. Civil disagreements are encouraged; ad hominem attacks, personal nastiness and unrepentant bigotry are not welcome and will not be tolerated, not just because they are unpleasant and hurtful, but because people engaging in those behaviors derail the substantive and instructive disagreements that people with different perspectives need to explore if we are going to live and work together.

Responding to a Facebook argument or Twitter blast with an insult may make you feel better, but it doesn’t advance the conversation, and it certainly doesn’t count as participation in the marketplace of ideas.

Defending obnoxious and uncivil behavior as “Free Speech” is the ultimate hypocrisy.

 

 

 

 

Spin Cycle

Tom Wheeler was Chair of the Federal Communications Commission from 2013 to 2017. In the wake of Sinclair Broadcasting’s application to acquire Tribune Media, he wrote a very troubling article for the Guardian. 

It is a major decision, since the resulting broadcast behemoth would hold as many as 233 local television stations reaching into more than 70 percent of American homes. Allegations about the Trump administration’s closeness to Sinclair – including Jared Kushner’s campaign deal with them – have been made. All I know is what I read, but the lead up to the actual decision has been significant and seems to presage approval.

Wheeler has previously warned that Trump’s FCC has been strategically knocking down all the regulatory barriers that have kept Sinclair Broadcasting from becoming a national Goliath.

First, the FCC changed the rules so that some stations are counted at only half their reach – using funny math to comply with Congress’ mandate that no single broadcaster should control access to more than 39 percent of American households. Then, the FCC proposed eliminating the requirement that each licensee maintain a local studio, doing away with the concept that broadcasters perform an important public service by delivering local news and information over the people’s airwaves. Finally, the commission eliminated the prohibition on a favorite trick of slick lawyers: that total management control and appropriation of profits of a television station doesn’t constitute effective ownership, and thus avoids Congress’ cap.

The rules that the current FCC Chair has changed or evaded were intended to protect a broadcasting marketplace of ideas–to prevent any one voice from effectively drowning out other voices, other perspectives, in a community.

Proponents of these sorts of rule changes and mega-mergers argue that the internet, social media and things like satellite radio provide adequate diversity of opinion. Perhaps, when those constantly morphing mediums have “settled in” and become routine touchstones in the cultural landscape (if that ever happens), that argument might carry some weight. At this point in our constantly-morphing media landscape, however, allowing Sinclair–or any one outlet–to dominate the airwaves would be like giving Fox or MSNBC control of all but a few cable news channels.

The current chair of the FCC has already signaled his agenda by trying to reverse the rules protecting Net Neutrality. 

This rule-changing at the FCC illustrates one of the most dangerous aspects of the Trump Administration. We all worry about having a mentally-ill President’s finger on the nuclear button, but very few of us know about–or pay attention to–obscure and technocratic rule changes, the sorts of sabotage that Scott Pruitt is engaging in at the EPA. While decent citizens react negatively to Trump’s embrace of the KKK, et al, most of us don’t even see what is happening in more boring regulatory precincts.

For that matter, most of us were unaware of Sinclair’s determinedly rightwing political agenda until John Oliver’s recent, scathing take-down.

As the French philosopher Jacques Ellul once warned,  the emergence of mass media made possible the use of propaganda techniques on a societal scale. Monopolies in the markets for goods are bad enough; allowing any perspective to monopolize the marketplace of ideas is infinitely worse.

Free Speech Conundrums

A friend of mine–a very thoughtful observer of American life and culture–asked for my opinion of the ACLU’s reported decision not to represent Charlottesville protestors alleging violation of their free speech rights if the “speakers” were armed at the time.

I haven’t seen a detailed statement to that effect, but based upon what I know, I agree with it.

When I teach the free speech clause, I tell students it requires distinguishing between speech—defined as the transmission of an idea—and action. The government cannot prohibit or punish the articulation of a message; it can, however, justifiably prohibit or punish harmful actions.

It isn’t always easy to draw the line, to identify when a message or idea becomes something else.

I illustrate the dilemma by giving students a number of “scenarios” requiring that they  decide whether something was speech or intimidation, speech or fraud, speech or harassment, speech or the first step in commission of a crime ( the RICO arguments).

Assume that a 6’4″ muscular body builder tells a hundred pound 5’1″ woman “If you don’t let me [fill in the blank], I’ll beat you so badly you’ll be unrecognizable.” Assume, also, that he does nothing more–doesn’t lunge toward her, or otherwise make menacing moves–has he simply exercised his constitutionally-protected freedom of speech? Or is he guilty of threat and intimidation?

What’s the difference between a labor union picketing a store by marching on the sidewalk with placards, and anti-choice activists coming into a residential neighborhood with bullhorns and screaming from 2:00 a.m. to 7:00 a.m night after night in front of the home of the Director of Planned Parenthood? (True story.)

Can we draw a distinction between the speaker who says “I think we need to overthrow the government, and this is why,” and the one who tells a group of angry citizens “I’ve got the rifles outside in my truck! Everyone who’s with me come and get one and we’ll march on City Hall right now!”

As they used to say on Sesame Street, one of these things is not like the other. And by and large, the courts have understood the differences.

So I agree with the ACLU’s decision. (I am surprised; it seemingly breaks a long tradition of ACLU First Amendment absolutism.) In the real world, racist speech by an armed and confrontational White Supremacist crosses the line from protected expression to  criminal intimidation.

Permit me to offer an (admittedly imperfect) analogy: the ACLU supported the Supreme Court’s decision in Citizens United. I tend to be a free speech purist, and in the abstract, I agreed with the reasoning. But in the real world, that decision gives the rich and powerful permission to corrupt the political process and drown out the speech of others. I agree with former Indiana Supreme Court Justice Ted Boehm, who once told me that the original legal error, in his opinion, was Buckley v. Valeo’s equation of money with speech. I also agree with former Representative Lee Hamilton, who has said that the Supreme Court doesn’t need more Justices who graduated from Harvard Law; it needs more Justices who’ve run for County Sheriff.

The First Amendment protects the exchange of ideas, no matter how pernicious or hurtful or offensive. However, it does not protect actions that government can properly forbid, merely because those actions are accompanied by–or accomplished through–the spoken word.

It isn’t always easy to tell the difference, and we may not all agree on where the line should be drawn, but we have to draw it.