Category Archives: Free Speech

Constitutional Rights At The Schoolhouse Door

As regular readers of this blog and my former students know, I  approach my course on “Law and Public Affairs” through a constitutional lens. There are some obvious reasons for that focus: many of my students will work for government agencies, and will be  legally obliged to adhere to what I have sometimes called “the Constitutional Ethic.” Due to the apparent lack of civic education in the nation’s high schools, a troubling number of  graduate students come to class with very hazy understandings of the country’s legal foundations.

Freedom of speech seems particularly susceptible to misunderstanding.

The first problem is that a significant number of Americans don’t “get” that  the Bill of Rights only restrains government. Walmart or the Arts and Entertainment Channel or (as one angry caller insisted when I was at the ACLU) White Castle cannot be sued for denying you your First Amendment Right to express yourself.

The most difficult concept for my students, however, has been the principle of content neutrality. Government can–within reasonable limits– regulate the time, place and manner of citizens’ communication, but it cannot favor some messages over others. (I used to illustrate that rule by explaining that city ordinances could prohibit sound trucks from operating in residential neighborhoods between the hours of 10 pm and 7 am, but could not allow trucks advocating for candidate Smith while banning those for candidate Jones. I had to discontinue that example when I realized that none of today’s students had the slightest idea what a sound truck was…)

One example I did continue to use was public school efforts to control T-shirts with messages on them. Private schools can do what they wish–they aren’t government–but public schools cannot constitutionally favor some messages over others. This is evidently a lesson that many Indiana schools have yet to learn. A brief article from the Indianapolis Star reports that the ACLU is suing a school in Manchester, Indiana, after a student was forced by administrators to go home for wearing a T-shirt with the text “I hope I don’t get killed for being Black today.”

According to the Complaint, students at the school are allowed to wear T-shirts with Confederate flags and “Blue Lives Matter” slogans. It describes the plaintiff, who is identified only by his initials, as one of the few Black students at the school.

“Schools cannot selectively choose which social issues students can support through messages on their clothing,” Ken Falk, the ACLU of Indiana’s legal director, said in a prepared statement on Monday. “Students do not lose their constitutional rights at the schoolhouse doors. The refusal of the school to allow D.E. to wear his t-shirt is a violation of his right to free speech.”

The school would be within its rights to ban all “message” T-shirts (although I can hear the grumbling now). Favoring certain messages over others, however, is a violation of the principle of content-neutrality –a core precept of the Free Speech Clause that prohibits government from favoring some messages over others.

The courts give school administrators a good deal more leeway than other government actors, on the theory that providing an educational environment requires a larger measure of control than would be appropriate for adults. But there are limits; as Ken Falk noted, and the Supreme Court affirmed in Tinker v. DeMoinesstudents do not leave their constitutional rights at the schoolhouse door.

Far too many school administrators are more focused on exerting control than on modeling or transmitting basic constitutional values. Too many public schools are operated as totalitarian regimes–environments that stress compliance and group-think, rather than teaching critical thinking, acquainting young people with the values of a democratic society, and encouraging civic debate and engagement.

When school officials themselves routinely break the rules, is it any wonder so many young people graduate still unaware of them?

 

It Depends And It’s Complicated

Every so often, intellectual luminaries initiate what the rest of us might call a “pissing match.”

One such match was triggered by a letter published in Harpers, warning that the spread of “censoriousness” is leading to “an intolerance of opposing views” and “a vogue for public shaming and ostracism”. Some of my favorite authors–and some not-so-favorite– are signatories (and no, I’m not identifying either category.)

The letter approves of the “powerful protests for racial and social justice” that it says are leading to “overdue demands for police reform, along with wider calls for greater equality and inclusion across our society”, but it goes on to disapprove–strongly–of what it calls “a new set of moral attitudes and political commitments” leading to the delivery of “hasty and disproportionate punishments instead of considered reforms”, and it charges that this disproportionate response tends “to weaken our norms of open debate and toleration of differences in favor of ideological conformity”.

As an aside, I’m not so certain those norms ever existed outside certain rarified circles. I sure haven’t seen much evidence of a genteel “toleration of differences”– and such courtesies certainly haven’t characterized social media.

I find myself agreeing with a remark attributed to US senator Brian Schatz (D. Hawaii), that “lots of brainpower and passion is being devoted to a problem that takes a really long time to describe, and is impossible to solve, and meanwhile we have mass preventable death”.

A Guardian article reported the reactions of some of that paper’s columnists, at least two of whom pointed out that the letter was a bit fuzzy in its definition of “cancel culture.” Zoe Williams, for example, wrote

This reminds me a lot of the arguments we used to have about religious tolerance in the 90s. Toleration was a good and necessary thing; but what if it meant you had to tolerate people who themselves wouldn’t tolerate you?

One of the Guardian commenters was Samuel Moyn, a professor of law and history at Yale, who had signed the original letter. He explained that he’d signed on, not because he is a free speech absolutist–a status he disclaims–but because he believes that,

If it is true that hierarchies are in part maintained – not just undone – by speech, and that speech can harm and not just help, it doesn’t follow that more free speech for more people isn’t generally a good cause. It is.

A few people sent me the original letter, and asked my opinion. With the caveat that I am no more equipped to weigh in than anyone else, here are my reactions:

Free speech has always been contested. It has also always been misunderstood: we have the right to “speak our piece” without interference by government. We have never had–and never will have–the right to speak our piece without repercussions, without hearing from people who disagree with what we have said.

Do extreme negative responses intimidate people, and deter others from speaking out–suppressing, rather than encouraging, productive debate? Yes. Isn’t that regrettable? Usually–although not always.

Is the extreme sort of blowback that the letter excoriates often unfair, and even unhelpful to the cause of those engaging in the disproportionate reaction? Yes–often.

Have the Internet and social media amplified both hateful speech and over-the-top censorious responses to it? Yes. Does that reality make civil, productive discussion and debate more difficult? You betcha.

None of this, however, qualifies as “breaking news.”

A number of people critical of the letter point to signatories who–they say–are guilty of the very behavior they criticize. That doesn’t make the criticism wrong, of course, but it does point to the fact that whether a reaction is proportionate to the offense is very much a subjective determination.

I tell my students at the beginning of each semester that my goal is for them to leave my class using two phrases far more frequently than they did previously: It depends and it’s more complicated than that.

Meanwhile, Senator Schatz has a point.

 

 

 

 

FaceBook, Disinformation And The First Amendment

These are tough times for Free Speech purists–of whom I am one.

I have always been persuaded by the arguments that support freedom of expression. In a genuine  marketplace of ideas, I believe–okay, I want to believe– that better ideas will drive out worse ones. More compelling is the argument that, while some ideas may be truly dangerous, giving   government the right to decide which ideas get expressed and which ones don’t would be much more dangerous. 

But FaceBook and other social media sites are really testing my allegiance to unfettered, unregulated–and amplified–expression. Recently, The Guardian reported that more than 3 million followers and members support the crazy QAnon conspiracy on Facebook, and their numbers are growing.

For those unfamiliar with QAnon, it

is a movement of people who interpret as a kind of gospel the online messages of an anonymous figure – “Q” – who claims knowledge of a secret cabal of powerful pedophiles and sex traffickers. Within the constructed reality of QAnon, Donald Trump is secretly waging a patriotic crusade against these “deep state” child abusers, and a “Great Awakening” that will reveal the truth is on the horizon.

Brian Friedberg, a senior researcher at the Harvard Shorenstein Center is quoted as saying that Facebook is a “unique platform for recruitment and amplification,” and that he doubts  QAnon would have been able to happen without the “affordances of Facebook.”

Facebook isn’t just providing a platform to QAnon groups–its  algorithms are actively recommending them to users who may not otherwise have been exposed to them. And it isn’t only QAnon. According to the Wall Street Journal, Facebook’s own internal research in 2016 found that “64% of all extremist group joins are due to our recommendation tools.”

If the problem was limited to QAnon and other conspiracy theories, it would be troubling enough, but it isn’t. A recent essay by a Silicone Valley insider named Roger McNamee in Time Magazine began with an ominous paragraph:

If the United States wants to protect democracy and public health, it must acknowledge that internet platforms are causing great harm and accept that executives like Mark Zuckerberg are not sincere in their promises to do better. The “solutions” Facebook and others have proposed will not work. They are meant to distract us.

McNamee points to a predictable cycle: platforms are pressured to “do something” about harassment, disinformation or conspiracy theories. They respond by promising to improve their content moderation. But– as the essay points out– none have been successful at limiting the harm from third party content, and  so the cycle repeats.  (As he notes, banning Alex Jones removed his conspiracy theories from the major sites, but did nothing to stop the flood of similar content from other people.)

The article identifies three reasons content moderation cannot work: scale, latency, and intent. Scale refers to the sheer hundreds of millions messages posted each day. Latency is the time it takes for even automated moderation to identify and remove a harmful message. The most important obstacle, however, is intent–a/k/a the platform’s business model.

The content we want internet platforms to remove is the content most likely to keep people engaged and online–and that makes it exceptionally valuable to the platforms.

As a result, the rules for AI and human moderators are designed to approve as much content as possible. Alone among the three issues with moderation, intent can only be addressed with regulation.

McNamee argues we should not have to accept disinformation as the price of access, and he offers a remedy:

At present, platforms have no liability for the harms caused by their business model. Their algorithms will continue to amplify harmful content until there is an economic incentive to do otherwise. The solution is for Congress to change incentives by implementing an exception to the safe harbor of Section 230 of the Communications Decency Act for algorithm amplification of harmful content and guaranteeing a right to litigate against platforms for this harm. This solution does not impinge on first amendment rights, as platforms are free to continue their existing business practices, except with liability for harms.

I’m not sure I share McNamee’s belief that his solution doesn’t implicate the First Amendment.

The (relative) newness of the Internet and social media creates uncertainty. What, exactly, are these platforms? How should they be classified? They aren’t traditional publishers–and third parties’ posts aren’t their “speech.” 

As 2020 campaigns heat up, more attention is being paid to how FaceBook promotes propaganda. Its refusal to remove or label clear lies from the Trump campaign has prompted advertisers to temporarily boycott the platform. FaceBook may react by tightening some moderation, but ultimately, McNamee is right: that won’t solve the problem.

One more conundrum of our Brave New World……

Happy 4th!

 

Facing Up To The Challenge?

As protests continue and the “President” (note quotation marks) continues to unravel, I am seeing some hopeful signs of a national awakening. I’ve previously noted that–in contrast to the 60s–there is enormous diversity in the crowds that have taken to the streets demanding justice, and fortunately, most of the media is highlighting that diversity.

Media (with the predictable exception of Fox) is also taking care to note that much of the chaos and looting is attributable to the efforts of white nationalist “race war” agitators and opportunistic hoodlums, not the protestors. They are also covering the backlash against Trump’s clumsy, militarized crackdown on peaceful protestors in order to clear the path for his ludicrous (and arguably sacrilegious) “photo op.”

Particularly gratifying are the signs of a welcome–if belated–pushback by the military.

A retired colleague of mine sent me a copy of the letter issued by Mark Milley, Chair of the Joint Chiefs of Staff (a letter which Milley copied to what appears to be the entire military establishment). The letter began by reminding recipients that every member of the military takes an oath to protect the Constitution and the values embedded within it–values that include the belief that all people are born free and equal and entitled to “respect and dignity.” He also referenced respect for the First Amendment’s Free Speech and Assembly clauses.

Milley’s letter came at approximately the same time that General Mattis–finally!–spoke out:

“When I joined the military, some 50 years ago, I swore an oath to support and defend the Constitution,” Mattis said in a statement published in The Atlantic.

“Never did I dream that troops taking that same oath would be ordered under any circumstance to violate the Constitutional rights of their fellow citizens —much less to provide a bizarre photo op for the elected commander-in-chief, with military leadership standing alongside.”

As these military men pointedly noted, their allegiance is to the Constitution–and by implication, not to the wannabe dictator occupying the Oval Office.

As reassuring as these reactions have been, I’m pinning my hopes for meaningful change on signs that unprecedented numbers of white Americans are ready to confront the realities of America’s social structures–ready to genuinely consider the longstanding effects of systemic racism and the dramatically-different realities experienced by white and black Americans.

A former student of mine has a once-in-a-while blog; I was struck by his most recent post, just a few days ago. He began by saying that, as “a privileged white male, I have been struggling with what I can add to the critical dialog on race during these turbulent times.”

He went on to take issue with the statement  that there is “only one race, the human race.”

While a beautiful sentiment, and a biological fact, for a white person to say that “there is only one race” discounts—in most settings—the lived experience of black and brown folk and shuts down any authentic conversation on race.  As one of my favorite writers on the subject, Dr. Robin DiAngelo explains in her lecture Deconstructing White Privilege,

“To say that we are all the same denies we have fundamentally different experiences. While race at the biological level is not real, race as a social construct based on superficial features is very real with significant consequences in people’s lives. The insistence that “we are all one” does not allow us to engage in that social reality.”

The entire post is worth reading, especially for his observation– only now beginning to be widely understood–  that racism is not (just) a moral problem; it is “a system of unequal social, cultural, and institutional power.” As he writes, so long as racism is seen as an individual moral failing, the structures and institutions designed to maintain white supremacy will remain in place.

About those structures…

It’s absolutely true that, as many defenders of the status quo like to say, laws can’t change what is in people’s hearts. What that facile truism fails to recognize is that laws do change behaviors, and that, over time, changing behaviors changes hearts.

Consider the effects of Loving v. Virginia, the case that struck down laws against miscegenation. One big difference between now and the 60s has been the increase in interracial marriages. Those unions haven’t simply allowed people who love each other to wed; they’ve educated–and changed– extended families, co-workers and friendship circles. 

The fire this time isn’t a repeat of the 60s. This time, more minds are open. This time, we can do better.

 

Beating That Dead Horse

I’m still mulling over that screenshot I referenced a few days ago–the one from the pro-Trump website showing the names and pictures of four people identified as Democratic Senators who were switching to the GOP in protest of the President’s Impeachment.

As you’ll recall, none of them were real Senators–or, probably, real people.

Whoever created that website clearly operated on the assumption that visitors would be  partisans so civically-ignorant that the phony names and stock photos wouldn’t trigger doubts or send them to a fact-checking site.

It was probably a well-founded assumption.

We occupy a fragmented media environment that increasingly caters to confirmation bias.  As I’ve frequently noted, Americans no longer listen to the same three network news shows and read the same daily newspapers; the ensuing intense competition for eyes, ears and clicks has spawned a treacherous information terrain.

A post at The World’s Most Dangerous Beauty Salon, Inc. is enough to curl your hair. (Sorry–couldn’t resist.) It even has graphs showing how Right-wing hoaxes and Trump’s tweeted lies proliferate.

Yesterday I talked about how Trumpists flocked to their latest article of faith that Trump isn’t really impeached because the House hasn’t transmitted the articles of impeachment to the Senate.  There is no basis in law or fact for that belief, but it’s there anyway, virally spreading throughout Trumpland.

Another profoundly stupid message that has evidently convinced those who want to believe: now that Trump is impeached, he’s automatically eligible to run 2 more times.

With rampant propaganda proliferated over social media facts or truth no longer matter.  Worse, Trump’s Twitter account amplifies these lies.  Every time he tweets one of his insults, childish taunts, threats, or lies,  it goes out to millions or users, retweeted thousands of times.  In the hands of an immoral politician like Trump, social media is weaponized for the dark side.  You can see it, but can also measure it.

The above-referenced graphs of Google trend lines show searches for these “facts.”

When I first practiced law, an older lawyer in my firm told me that there is really only one legal question, and that’s “what should we do?” That maxim applies more broadly; it absolutely applies to the absence of what has come to be called “news literacy.”

Every so often, one of my more naïve students asks why the government can’t just pass a law requiring media outlets to tell the truth. As I try to explain, truth and fact are often honestly contested—and of course, there’s the First Amendment. But we aren’t powerless just because government is prohibited from censoring us.

There’s no reason the private sector cannot develop tools to help citizens determine who they can reasonably rely on—and who they can’t. (The current criticism of Facebook for allowing campaigns to post dishonest political ads is based upon that company’s legal and technical ability to eliminate them.)

What if a nonpartisan, respected nonprofit—say the Society for Professional Journalists—developed an analog to the “Good Housekeeping Seal of Approval,” attesting to the legitimacy of a media source? The award of that seal wouldn’t indicate the truth or falsity of any particular article, but would confirm that the organization was one that adhered to the procedures required of ethical, reputable journalists.

It would take substantial funding, of course, to develop and maintain the capacity to monitor the practices and procedures of media outlets claiming to be “news.” And that “seal of approval” wouldn’t mean that any given report wasn’t flawed in some way—genuine reporters are human and make mistakes. But it would allow citizens who actually care about accuracy and evidence-based reporting to be reassured about the journalistic bona fides of sources they encounter.

Those bona fides are important, because in the new information world we all must navigate, each of us is our own “gatekeeper.” The days when editors and reporters decided what constituted verifiable news are long gone.

And that brings me back to the screen shot shared by my friend.

I know I’m beating a dead horse, but propaganda flourishes when only 26% of adults can name the three branches of government, fewer than half of 12th graders can define federalism and only 35% of teenagers know that “We the People” are the first three words of the Constitution. When politicians make claims that are blatantly inconsistent with America’s history and form of government, widespread civic ignorance virtually guarantees the uncritical acceptance of those claims by partisans who desperately want to believe them.

Adequate civic knowledge can’t guarantee that visitors to a website will know fake Senators when they see them–but it’s an essential first step.