Tag Archives: First Amendment

The Hate Eruption

Asian women have been mowed down in Georgia. Unarmed Black men continue to be killed or maimed by police and self-appointed “good guys with guns.” Anti-Semitic and anti-Muslim incidents have proliferated. A new report links these eruptions to a surge in White Supremacy propaganda.

Not even a once-in-a-century pandemic could prevent white supremacist groups from deluging American cities with extremist propaganda in 2020. Banners were hung from freeway overpasses. Stickers were slapped onto street signs. Fliers were dropped onto the windshields of parked cars.

An Anti-Defamation League (ADL) study published Wednesday recorded 5,125 incidents of white supremacist physical propaganda last year, marking the highest level of cases reported since the non-profit began tracking such data five years ago. The findings average to about 14 incidents per day—and are nearly double the 2,724 cases reported in 2019.

The data highlights the stunning growth of new splinter movements that did not exist when President Donald Trump took office. At least 30 white supremacist groups disseminated propaganda in the U.S. in 2020, but three of them—Patriot Front, New Jersey European Heritage Association and Nationalist Social Club—were responsible for 92% of the activity, according to the ADL. All of them were founded within the past three years.

This research gives us a lot to unpack.

First and foremost, these findings support the accumulating evidence that the Republican Party, now for all intents and purposes the Trump Party, has become little more than a White Supremacy Party. The politicization of hate–the partisan retreat into full-scale culture war–is incredibly worrisome. Equally troubling, the language of hate is amplified daily by media outlets that can only be considered GOP PR appendages rather than genuine journalistic endeavors.

Those of us who insist that language matters–that “mere words” may not be the sticks and stones that break your bones but nevertheless can incentivize actions inflicting bodily harm–find ourselves between the proverbial rock and hard place.

Giving government the right to suppress any idea (even, in Justice Holmes’ memorable phrase, the “idea we hate”) would be incredibly dangerous and even counterproductive. The Free Speech clause of the First Amendment was based upon recognition that giving government that power would be more dangerous than even the expression of truly horrible ideas, and efforts at suppression more often than not simply give oxygen to such materials.

That leaves those of us who are horrified by the surge in hateful incitement with only the tool of social opprobrium, often derided as “political correctness” or even “cancel culture.” Although in the age of social media, criticism of language deemed bigoted or stereotyping can certainly go too far (in the jargon of the day, be too “woke”), expressing disapproval is arguably less damaging to the social fabric than ignoring the dissemination of hateful and hurtful characterizations.

Perhaps, in a weird way, the increasingly overt expressions of animus and bigotry may force us to confront some unpalatable realities. Surface niceties allowed many of us to assume that we’d made much more progress than we had. Just as the Trump presidency reminded Americans that the absence of honest, competent governance really hurts us all, the explosion of racism, misogyny, anti-Semitism and other hatreds reminds the rest of us that we humans have to live together on a small and endangered planet, and that we need to find ways to cooperate and co-exist.

You can’t lance an invisible boil, and you can’t solve a problem until you recognize how extensive it is.

 

 

Information Silos And The First Amendment

The First Amendment contemplates and protects a “marketplace of ideas.” We have no precedent for an information environment in which there is no marketplace–no “agora” where different ideas and perspectives contend with each other for acceptance.

What we have instead are information “silos”–a column in the New York Times recently quoted Robert Post, a Yale professor, for the observation that people have always been crazy, but the internet has allowed them to find each other.

In those silos, they talk only to each other.

Social media has enabled the widespread and instantaneous transmission of lies in the service of political gain, and we are seeing the results. The question is: what should we do?

One set of scholars has concluded that the damage being done by misinformation and propaganda outweighs the damage of censorship. Rick Hasen, perhaps the most pre-eminent scholar of election law, falls into that category:

Change is urgent to deal with election pathologies caused by the cheap speech era, but even legal changes as tame as updating disclosure laws to apply to online political ads could face new hostility from a Supreme Court taking a libertarian marketplace-of-ideas approach to the First Amendment. As I explain, we are experiencing a market failure when it comes to reliable information voters need to make informed choices and to have confidence in the integrity of our electoral system. But the Court may stand in the way of necessary reform.

I don’t know what Hasen considers “necessary reform,” but I’m skeptical.

I have always been a First Amendment purist, and I still agree with the balance struck by the Founders, who understood that–as pernicious and damaging as bad ideas can be–allowing government to determine which ideas get voiced is likely to be much more dangerous. (As a former ACLU colleague memorably put it, “Poison gas is a great weapon until the wind shifts.”)

That said, social media platforms aren’t government. Like brick-and-mortar private businesses, they can insist on certain behaviors by their customers. And like other private businesses, they can and should be regulated in the public interest. (At the very least, they should be required to apply their own rules consistently. People expressing concern/outrage over Twitter’s ban of Trump should be reminded that he would have encountered that ban much earlier had he been an ordinary user. Trump had flouted Twitter and Facebook rules for years.)

The Times column suggests we might learn from European approaches to issues of speech, including falsehoods and hate speech. Hate speech can only be banned in the U.S. if it is intended to incite imminent violence and is actually likely to do so. Europeans have decided that hate speech isn’t valuable public discourse– that racism isn’t an idea; it’s a form of discrimination.

The underlying philosophical difference here is about the right of the individual to self-expression. Americans value that classic liberal right very highly — so highly that we tolerate speech that might make others less equal. Europeans value the democratic collective and the capacity of all citizens to participate fully in it — so much that they are willing to limit individual rights.

The First Amendment was crafted for a political speech environment that was markedly different than today’s, as Tim Wu has argued.  Government censorship was then the greatest threat to free speech. Today, those, including Trump, “who seek to control speech use new methods that rely on the weaponization of speech itself, such as the deployment of ‘troll armies,’ the fabrication of news, or ‘flooding’ tactics” that humiliate, harass, discourage, and even destroy targeted speakers.”

Wu argues that Americans can no longer assume that the First Amendment is an adequate guarantee against malicious speech control and censorship. He points out that the marketplace of ideas has become corrupted by technologies “that facilitate the transmission of false information.”

American courts have long held that the best test of truth is the power of an idea to get itself accepted in the competition that characterizes a marketplace. They haven’t addressed what happens when there is no longer a functioning market–when citizens  confine their communicative interactions to sites that depend for their profitability on confirming the biases of carefully targeted populations.

I certainly don’t think the answer is to dispense with–or water down– the First Amendment. But that Amendment was an effort to keep those with power from controlling information. In today’s information environment, platforms like Twitter, Facebook, etc. are as powerful and influential as government. Our challenge is to somehow rein in intentional propaganda and misinformation without throwing the baby out with the bathwater.

Any ideas how we do that?

 

 

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?

 

News And Political Polarization

A couple of days ago, in a comment to that day’s post, Paul Ogden placed considerable blame for America’s current polarization on the media environment we inhabit. He’s right (although I don’t think the “bubble” of rightwing news sources is incompatible with the research showing that  racial animosity motivates many, if not most, Trump supporters.)

Here’s the problem: Thanks to Fox News, Sinclair, Breitbart and thousands of others on and off the web, we don’t have a “marketplace of ideas.” A marketplace contains a wide variety of “goods” openly competing against each other. But research has shown that  those on the right, especially, get almost all of their news from sources that confirm their pre-existing biases. That ideological loyalty, and the decimation of local newspapers (the vestigial Indianapolis Star just announced yet another round of newsroom cuts), has prompted political propagandists to pretend to be local news outlets. The New York Times recently reported on one such effort: a nationwide operation of 1,300 supposedly local sites publishing articles produced by Republican groups and corporate P.R. firms.

The rise of a media ecosystem devoted to active disinformation poses a huge dilemma for people who–like me–tend to be First Amendment purists. I agree with the value judgment implicit in free speech jurisprudence: the circulation of  bad ideas is certainly dangerous, but allowing government to decide which ideas may be circulated would be even more dangerous.

The First Amendment requires government to be content neutral. It forbids government from censoring points of view–as Justice Holmes memorably put it, the Amendment “protects the idea we hate.” But that doesn’t preclude any and all government action.

Last Sunday, in a profoundly important cover story for the Times Magazine, Emily Bazelon considered the problem and some potential solutions. 

Bazelon began with an example, showing how one remark was twisted from its original context into an absolutely false accusation of wrongdoing. She followed that with an important observation: the spewing of falsehoods isn’t meant to win the battle of ideas; it is meant to prevent that battle from being fought.

This takes us back to Paul’s observation about closed media ecosystems. There is no battle between ideas, because they aren’t expressed in the same marketplace. They aren’t contending against contrary opinions–they’re hermetically sealed against them. Scholars at Harvard analyzed hyperlinks of four million articles, and found that the conservative media did not counter lies and distortions, but actively recycled them through other like-minded  outlets.

Bazelon points out the fatal flaw of Citizens United and preceding cases equating money with speech. “By requiring the state to treat alike categories of speakers — corporations and individuals — the Supreme Court began to go far beyond preventing discrimination based on viewpoint or the identity of an individual speaker.”

Bazelon’s article is a lengthy tour de force. I really urge you to click through and read it in its entirety, because it is not limited to a series of examples of disinformation and the damage  caused–she tackles the all-important question: what can we do about it? Are there measures consistent with the First Amendment that can help restore a genuine marketplace of ideas?

Several of the rules currently imposed by European countries would pass constitutional muster here, and regulations we’ve jettisoned could be revived; she points to former rules on diversity of ownership (until the 1980s, FCC rules barred a single entity from owning a TV station and newspaper in the same local market). We can–and should–beef up anti-trust enforcement.

Online, government could require additional disclosures–identifying the producers and funders of election advertisements. And as she notes, there is no legal barrier to increasing the delivery of reliable information. Government could fund nonprofit journalism or create additional public radio and television outlets. At the least, government could condition the existing legal immunity of social media platforms on more effective efforts to counter disinformation.

In her final paragraph, she explains what is at stake.

As we hurtle toward the November election with a president who has trapped the country in a web of lies, with the sole purpose, it seems, of remaining in office, it’s time to ask whether the American way of protecting free speech is actually keeping us free. Hannah Arendt finished her classic work on totalitarianism in the early 1950s, after barely escaping Germany with her life, leaving friends and homeland behind. She was a Jewish intellectual who saw the Nazis rise to power by demonizing and blaming Jews and other groups with mockery and scorn. The ideal subject of fascist ideology was the person “for whom the distinction between fact and fiction (i.e. the reality of experience),” Arendt wrote, “and the distinction between true and false (i.e. the standards of thought) no longer exist.” An information war may seem to simply be about speech. But Arendt understood that what was at stake was far more.

Read it. It’s important.

“Meanwhile”–Mike Pence Version

While we are transfixed by the latest “shiny object”–the latest betrayal of long-time allies, the emergence of emails documenting the White Nationalism of the White House, Trump’s approval of war crimes, the daily evidence that our President is quite insane, and of course the Impeachment hearings–the current administration stays busy behind the scenes destroying both democratic norms and constitutional barriers.

I have previously posted about a number of these assaults–generally, they are being led by the unqualified and ethically compromised individuals currently ensconced in cabinet and other administrative positions. Recent reporting, however, locates one such offensive in the White House itself: efforts by wannabe theocrat Mike Pence to further erode the First Amendment’s separation of church and state.

As ProPublica reports

Last November, a top Trump appointee at the U.S. Agency for International Development wrote a candid email to colleagues about pressure from the White House to reroute Middle East aid to religious minorities, particularly Christian groups.

“Sometimes this decision will be made for us by the White House (see… Iraq! And, increasingly, Syria),” said Hallam Ferguson, a senior official in USAID’s Middle East bureau, in an email seen by ProPublica. “We need to stay ahead of this curve everywhere lest our interventions be dictated to us.”

The email underscored what had become a stark reality under the Trump White House. Decisions about U.S. aid are often no longer being governed by career professionals applying a rigorous review of applicants and their capabilities. Over the last two years, political pressure, particularly from the office of Vice President Mike Pence, had seeped into aid deliberations and convinced key decision-makers that unless they fell in line, their jobs could be at stake.

Some five months before this email was sent, Ferguson’s former boss had been fired. The action followed a communication from Pence’s chief of staff, in which recipients were told that Pence was “displeased” with USAID’s work in Iraq, especially the agency’s decision to turn down Christian groups for aid.

The administration’s efforts to influence USAID funding worried professionals within the agency. Not only did it risk violating First Amendment prohibitions on favoring one religion over another, but there were practical concerns: if the U.S. was perceived as favoring Christians, that perception could–indeed, it probably would– worsen Iraq’s sectarian divides.

USAID regulations state that awards “must be free from political interference or even the appearance of such interference and must be made on the basis of merit, not on the basis of the religious affiliation of a recipient organization, or lack thereof.”

Despite the clear language of the regulations, USAID recently announced two grants to Iraqi organizations that had previously been rejected. According to the Pro Publica article, political appointees, rather than professionals charged with making these determinations, “significantly impacted” the awards.

Typically, such appointees have little to no involvement in USAID grants, to avoid perceptions of undue political influence on procurement.

One of the groups selected for the newest awards has no full-time paid staff, no experience with government grants and a financial tie that would typically raise questions in an intense competition for limited funds. The second organization received its first USAID direct grant after extensive public comments by its leader and allies highlighting what they described as a lack of U.S. assistance to Christians. The two groups — a charity that primarily serves Christian Iraqis and a Catholic university — were not originally listed as front-runners, according to a document seen by ProPublica.

The remainder of the lengthy article documents the measures taken by the administration–especially Pence’s office–to change the criteria by which funds would be awarded in order to benefit Christian organizations. It also reports on Pence’s “pushback” to warnings that favoritism to Christian organizations would run afoul of both the First Amendment and agency regulations.

Just more evidence that while we are transfixed by Trump’s bizarre behaviors and ungrammatical tweets, lobbyists are running federal agencies for the benefit of their former clients, faux Christians are undermining the Constitution and distorting foreign policy, the entire administration is undermining the rule of law…

And today’s GOP is fiercely defending all of it.