Category Archives: Free Speech

Oh, Texas–You Are So Predictable…

The Texas Attorney General is supporting a school district that expelled a student for failing to stand for the Pledge of Allegiance.

Where do I start?

Let’s begin with one of my all-time favorite Supreme Court opinions, written by Justice Jackson in the case of West Virginia Board of Education v. Barnett. It is a famous case, in which Jackson wrote that compelling a gesture of respect for the flag pledge violates the fundamental values of the First Amendment, which protects freedom of expression and thought from government intrusion.

The case is made difficult not because the principles of its decision are obscure, but because the flag involved is our own. Nevertheless, we apply the limitations of the Constitution with no fear that freedom to be intellectually and spiritually diverse or even contrary will disintegrate the social organization. … [F]reedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.

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. If there are any circumstances which permit an exception, they do not now occur to us.

Despite being a lawyer–or so I assume–the Texas Attorney General, Ken Paxton, has consistently demonstrated ignorance of the constitution. He did so once again in this case, issuing a statement saying “School children cannot unilaterally refuse to participate in the Pledge.”

Um…yes, they can.

India Landry, who is 17, was expelled from her school for refusing to recite the Pledge of Allegiance. That refusal was prompted by her considered belief that the government is not honoring the principles that flag is supposed to represent.

“I felt the flag doesn’t represent what it stands for, liberty & justice for all & I don’t feel what is going on in the country, so it was my choice to remain seated, silently.”

Forgive me if I view Paxton’s stirring–if embarrassingly uninformed–defense of the flag and the pledge as an effort to distract voters from his upcoming trial for fraud. According to the Dallas News, 

Texas Attorney General Ken Paxton was indicted for fraud nearly three years ago but is unlikely to go on trial before Election Day.

Paxton’s trials are on hold while the Texas Court of Criminal Appeals decides whether the prosecutors on the case are being overpaid. The court went on summer recess Wednesday, and won’t hear any cases or issue any major opinions before the fall.

This means they won’t announce a decision in the pay case until September, at the earliest, which experts said will delay Paxton’s trial dates until after the Nov. 6 election — and probably into next year.

You might think that pending fraud charges would be politically damaging, but hey! This is Texas. Republicans in Texas are apparently even less concerned with moral lapses and ignorance of job requirements than  Republicans elsewhere who still support Trump.

Paxton, a Republican, is running for a second term as the state’s top lawyer. Despite the indictments that have hung over him since months after his election in 2014, he has remained popular with conservative Republicans, raking in half a million dollars for his legal defense and boasting record fundraising numbers.

I guess he’s been too busy raising money and defending against fraud charges to research applicable legal precedents…

False Equivalence 101

An article by Jeffrey Toobin in The New Yorker references a new book on right-wing media, written by Yochai Benkler, Robert Faris, and Hal Roberts. The book–to be published next month by Oxford University Press– is titled, “Network Propaganda: Manipulation, Disinformation, and Radicalization in American Politics.

It debunks a favorite belief of politicians and journalists. As Toobin writes,

The Washington conventional wisdom presupposes a kind of symmetry between our polarized political parties. Liberals and conservatives, it is said, live in separate bubbles, where they watch different television networks, frequent different Web sites, and absorb different realities. The implication of this view is that both sides resemble each other in their twisted views of reality. Rachel Maddow and Sean Hannity, in other words, represent two sides of the same coin.

This view is precisely wrong.

The two sides are not, in fact, equal when it comes to evaluating “news” stories, or even in how they view reality. Liberals want facts; conservatives want their biases reinforced. Liberals embrace journalism; conservatives believe propaganda. In the more measured but still emphatic words of the authors, “the right-wing media ecosystem differs categorically from the rest of the media environment,” and has been much more susceptible to “disinformation, lies and half-truths.”

This assertion sounds as if it is itself the result of propaganda–liberal propaganda, in this case. But as Toobin reports,

“Network Propaganda” is an academic work at the crossroads of law, sociology, and media studies. Benkler is a law professor at Harvard and a co-director of the university’s Berkman Klein Center for Internet and Society, where Faris and Roberts both conduct research. The book is not a work of media criticism but, rather, of data analysis—a study of millions of online stories, tweets, and Facebook-sharing data points. The authors’ conclusion is that “something very different was happening in right-wing media than in centrist, center-left and left-wing media.” Accordingly, they wrote the book “to shine a light on the right-wing media ecosystem itself as the primary culprit in sowing confusion and distrust in the broader American ecosystem.”

The book examines the way in which that right-wing “ecosystem” works. Stories frequently begin on conspiracy theory sites like Infowars; if they remained there, most people would either fail to encounter them or see them for what they are. But they “migrate” to outlets like Fox News, that claim to follow principles of objective journalism. The authors note that there simply aren’t significant sites on the left that mirror those on the right by trafficking in “chronic falsity;”  furthermore, the “upstream sources” in the center and on the left do adhere to traditional journalistic standards, so they debunk rather than parrot the stories contrived by those few sites that  crank out leftwing propaganda.

This lack of symmetry is why “Pizzagate”–accusing Hillary Clinton of pedophilia and of molesting children in the basement of a pizza parlor–was widely reported, while unverifiable allegations that Trump had raped a 15-year-old quickly died.

The authors’ telling conclusion, based upon their data analysis, was that Trump’s election wasn’t the result of Russia’s (admitted) interference, nor to Cambridge Analytica’s manipulation of Facebook.

Rather, it was the feedback loop of right-wing quasi-journalism that had the most impact—and that hypothesis has profound implications not only for the study of the recent past but also for predictions about the not-so-distant future.

This analysis confirms the suspicions of several of my colleagues who have “lost” their previously rational parents to Fox News.

The sixty-four thousand dollar question is: in a country committed to freedom of speech and the press, what can we do about it?

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.