Category Archives: Free Speech

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.

Sticks and Stones…

Remember the old child’s chant: sticks and stones may break my bones, but words will never hurt me?

It’s more complicated than that.

We have a legal system that distinguishes between acts and words, that protects expression of even the most hateful sentiments while forbidding people from acting on those sentiments.

There are all kinds of reasons–practical and theoretical–for prohibiting government censorship of even the most vile speech. I have addressed many of them previously. (If you want another exposition of those reasons, you could do worse than John Stuart Mill.) The Founders of this country certainly recognized that speech can be dangerous, but they believed–correctly, in my view–that giving government the power to decide which ideas could be expressed is a far greater danger.

Recognizing the difference in the degrees of harm inflicted by hurtful words and violent or otherwise harmful acts does not require us to ignore the very real–and deleterious–consequences of words. But we also need to understand that the only effective remedy is culture, not law.

Refusing to use bigoted terminology is not “political correctness.” It is recognition that decent adults do not contribute to the coarsening of society, and do not participate in the creation of a culture that winks at bad behavior.

Language shapes culture in ways too numerous to count. The nature of discourse considered appropriate for a civil society shapes the attitudes of the young and influences the behaviors of adults. Widespread use of language that diminishes people based upon their sexuality or religion or country of origin creates a belief that discrimination against those people is justified, and in the case of unbalanced folks (of whom there seem to be many), is seen as a license to harm them.

Do people have a right to express reprehensible opinions? Of course. I am one of those free speech purists who, like Voltaire, may “disagree with what you say but defend to the death your right to say it.” But the fact that people have a right to be hateful is not the same thing as an endorsement of their venom, and it does not require us to ignore or fail to condemn the unfortunate effects of such speech on American society.

The law cannot require us to grow up. That doesn’t mean we should behave like spoiled children– and it certainly doesn’t mean electing people who don’t understand the very real and very important difference between “political correctness” and adult behavior.

It’s Not Just Planned Parenthood….

Planned Parenthood. San Bernardino.

America averages one mass shooting every day.  We seem unable to address the paralysis on guns that allows any crank, psychopath or terrorist to acquire instruments of death and destruction, so we discuss every other issue involved, from policing to mental health systems. In the wake of the attack on Planned Parenthood, we’ve focused upon the effects of vitriol, propaganda and reckless accusations.

So let’s “go there.” Does rhetoric really matter?

When we were children, most of us chanted that “sticks and stones may break my bones, but words will never hurt me!” Even in childhood, we knew that wasn’t true; the wounds that leave the most long-lasting scars are frequently caused by insulting or hurtful words. Not infrequently, bodies heal faster than psyches.

There are obvious consequences to toxic and uncivil discourse: when we substitute epithets for reasoned argument, we neither convince nor converse in any meaningful sense. The question we need to confront–the issue that people like Carly Fiorina and Donald Trump dismiss as “liberal bias”–is whether a constant drumbeat of nastiness, prevarication and incitement leads less-than-stable folks to “act out.”

The recent attack on Planned Parenthood is the latest in a string of assaults on that agency that have been encouraged, if not caused, by incessant dishonest and inflammatory rhetoric. A recent attack on a Muslim taxicab driver is another horrifying example.

The passenger began asking the driver about his background, and whether he was a ‘Pakistani guy.’” He also asked the driver “about the terror group ISIS” and mocked the prophet Muhammad.

The driver, who moved to Pittsburgh from Morocco five years ago, told the Post-Gazette that he is three months away from becoming a U.S. citizen. His plan is to bring his wife to the United States and start a family in the country he considers home.

I’m a free speech purist. Both the Constitution and common sense tell me that reducing the level of public bile is not something we can achieve by passing a law.

As difficult as it is, we need to challenge the culture that encourages expressions of bigotry and hate. We need to remind people that it is possible to express a point of view without becoming part of the problem; that it is possible to disagree without lying, slandering or justifying horrific behaviors.

In a more reasonable culture, we might even be able to do something about our ridiculously easy access to guns….

 

 

The Age of Propaganda?

The Program on International Policy Attitudes is a respected source for international opinion research. In the wake of the 2010 U.S. elections, it conducted a survey of voters, first looking to see those voters’ perceptions of how much misinformation was “out there,” and second, to determine just how misinformed voters actually were.

Unsurprisingly,

The poll found strong evidence that voters were substantially misinformed on many of the key issues of the campaign. Such misinformation was correlated with how people voted and their exposure to various news sources.

The website links to the questionnaire and the results, which are well worth reading, but here are some of the most consequential inaccuracies:

  • Though the Congressional Budget Office (CBO) concluded that the stimulus legislation has saved or created 2.0-5.2 million jobs, only 8% of voters thought most economists who had studied it concluded that the stimulus legislation had created or saved several million jobs. Most (68%) believed that economists estimate that it only created or saved a few jobs and 20% even believed that it resulted in job losses.
  • Though the CBO concluded that the health reform law would reduce the budget deficit, 53% of voters thought most economists have concluded that health reform will increase the deficit.
  • Though the Department of Commerce says that the US economy began to recover from recession in the third quarter of 2009 and has continued to grow since then, only 44% of voters thought the economy is starting to recover, while 55% thought the economy is still getting worse.
  • Though the National Academy of Sciences has concluded that climate change is occurring, 45% of voters thought most scientists think climate change is not occurring (12%) or that scientists are evenly divided (33%).

Incredibly, 86% of respondents thought taxes had gone up since 2009, although they’d actually gone down. Such is the power of propaganda.

It shouldn’t come as a surprise to note the source of most of this misinformation. While there are certainly no truth-telling heros among cable news sources,

Those who watched Fox News almost daily were significantly more likely than those who never watched it to believe that most economists estimate the stimulus caused job losses (8 points more likely), most economists have estimated the health care law will worsen the deficit (31 points), the economy is getting worse (26 points), most scientists do not agree that climate change is occurring (30 points), the stimulus legislation did not include any tax cuts (14 points), their own income taxes have gone up (14 points), the auto bailout only occurred under Obama (13 points), when TARP came up for a vote most Republicans opposed it (12 points) and that it is not clear that Obama was born in the United States (31 points).

The effect was also not simply a function of partisan bias, as people who voted Democratic and watched Fox News were also more likely to have such misinformation than those who did not watch it–though by a lesser margin than those who voted Republican.

In a country with freedom of speech, the only way to counter propaganda is with credible information,  persistent rebuttals of intentional misinformation, and an unflagging effort to make people understand when the emperor is naked.

We all need to participate in that effort–debunking Fox, certainly, but also being sure we aren’t giving a pass to sources that may be telling us what we want to hear.