Tag Archives: Free Speech

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.

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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!

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The Triumph Of Quackery

We are seeing what happens when the “fringe” goes mainstream. (Well, perhaps not mainstream as in “mainstream American society” but mainstream as in “takes over a President and his political party.” Mainstream Republican, in other words.)

When belief in science threatens the bottom line, when those pesky things called “facts” are politically inconvenient, when the complexity of modern life requires an acknowledgement of uncertainty–people who are profoundly uncomfortable with those realities retreat to the conspiracy theories and bright lines that have long characterized beliefs of people we might refer to as “untethered to reality.”

As Richard Wolffe recently asked about one such “untethered” person in the Guardian, “What kind of buffoon brags about taking a drug that could kill him?”

Wolffe acknowledges that–among the many ailments Donald Trump has inflicted on his own country – there is one worse than hydroxycholoroquine, unsafe and ineffective as the FDA says it is for this use.

But it’s even worse that he is a one-man delivery vehicle for a dunce cult that denies science.He represents the nadir of a long tradition of conspiracy-loving wingnuts who used to populate the fringes of the American conservative movement. Over the last half-century they have moved steadily into the mainstream of the Republican party, where their fact-free fairytales about the evil establishment have found a natural home in the cranium of the 45th president.

In this age of hyper-connected ignorance, there are no independent experts and there are no true facts. Your scientific theories are equal to my Twitter theories, just as your FBI investigation into Russia is equal to Rudy’s supposed investigation into Ukraine. All opinions are equal, but some are more equal than others.

As Wolffe notes, slap a respectable-sounding name on groups espousing bizarre theories, and watch the desperate-to-be-believers lap it up: the staid-sounding Association of American Physicians & Surgeons, for example, has denied that HIV causes Aids (citing “official reports and the peer-reviewed literature”) and revealed that Barack Obama was using “mass hypnosis to bamboozle voters with his fancy speeches,” among other “scientific” discoveries.

According to recent surveys, most Republicans want scientists out of the policy process. Before the pandemic, just 43% of Republicans thought scientists should play an active role in policy debates, compared with 73% of Democrats. This at a time when so many policy issues–from auto emission standards to public health standards–require an understanding of what credible science tells us.

Even fewer Republicans – 34% – think scientists are any better at making decisions about science policy than you or me.

These opinions did not crawl out of the primordial soup on their own. They have evolved over time in a warm bath of fringe conspiracy groups that have spent decades fighting against the teaching of evolution, among other social evils. One of those groups was Phyllis Schlafly’s Eagle Forum, which worked to push evolution out of the classroom, almost as doggedly as Mrs America fought against women’s rights and the Equal Rights Amendment.

So it’s no surprise to find her son Andrew named as general counsel to the AAPS. Among other projects, Andrew Schlafly founded a conservative alternative to Wikipedia, to correct its “liberal bias” on things like evolution.

Fringe beliefs aren’t new. Stupidity isn’t new (although I doubt we’ve ever had a President as monumentally stupid as Trump, who recently responded to a question about per capita comparisons with Germany and Japan by saying “You know, when you say ‘per capita’ there’s many per capitas. It’s, like, per capita relative to what? But you can look at just about any category, and we’re really at the top, meaning positive on a per-capita basis too.”)

What is new is the Internet and especially social media. What is new is the chutzpah of a President complaining that fact-checking his obvious lie on Twitter somehow deprives him of “free speech.” What is new is our ability to occupy information bubbles of our own choosing–bubbles that reinforce our bigotries and reassure us that Q is real and the pointy-headed intellectuals who trust science are part of the “deep state.”

What is new–and most definitely not improved– is the devolution of an entire political party into an adolescent, anti-science, anti-evidence, anti-fact cult of quackery.

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Civility And The First Amendment

How many times have we heard someone defend a racist, belittling or otherwise nasty tweet or Facebook post by claiming that critics were attacking his or her  “First Amendment rights”?

The First Amendment may protect that person’s right to spew vitriol against government censorship, but it also protects the speaker’s critics–including, for that matter, decisions to fire the speaker from a private-sector position. Beyond that widespread misunderstanding of just what it is that Freedom of Speech protects, however, is a lack of appreciation of the important role of civility in America’s marketplace of ideas.

I recently participated in a “civility training” for Women4Change Indiana, and dug out a brief introduction to the topic that I had delivered a couple of years ago. Given how very un-civil American discourse has become, I thought it might be timely to share.

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Twenty-five years ago, when I was Executive Director of Indiana’s ACLU,  I mounted a campaign to promote civility and a more civil discourse. Several members let me know that they were upset, 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 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 dangerous–words and ideas could be. They protected free expression because they understood that giving government the authority to decide which ideas are acceptable—to decide what sort of speech should be permitted– was far more dangerous.

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, racial “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 is clearly an important contributor. 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.

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“No Brainer” Trump…

Several media outlets have reported on Trump’s enthusiastic embrace of a measure to outlaw flag burning. Congresscritters repeatedly introduce these bills, despite the fact that the Supreme Court ruled years ago that flag burning is protected under the First Amendment.

Ed Brayton commented on Trump’s history with the issue.

During the 2016 campaign, Trump said that anyone who burns an American flag — you know, all four of them in the entire country over the last few decades– should be stripped of their citizenship and be put in jail. Now two Republicans have proposed yet another bill to make flag burning illegal and he’s endorsing it on — where else — Twitter:

All in for Senator Steve Daines as he proposes an Amendment for a strong BAN on burning our American Flag. A no brainer!

Coincidentally, No Brainer is the Secret Service’s code name for him.

You would think that an administration’s Press Secretary would try to intercede to protect freedom of expression, since all media–even rightwing outlets–rely on First Amendment protections to do their jobs. But of course, this is the Trump Administration, which has hired spectacularly dishonest specimens to fill that post. (My favorite description of departing Sarah Huckabee Sanders was penned by Bret Stephens of the New York Times, who wrote that Sanders “combined the sincerity of Elmer Gantry with the moral outlook of Raskolnikov.”)

Since no one currently serving in this administration seems to “get it,” let me see if I can explain the way free speech jurisprudence works in language that thinking people  (a category that rather clearly excludes the current occupant of the White House) can understand.

The Free Speech clause of the First Amendment protects the exchange of ideas against government censorship. All ideas. Even awful ideas. Ideas that piss people off. Government doesn’t get to decide which ideas get transmitted, period. (Your mother, on the other hand, can censor you. So can your boss. The Bill of Rights only restrains government.)

Government can prohibit actions for a whole host of reasons, but it cannot pick and choose among messages. If there is an ordinance banning outdoor burning in dry weather, for example, or laws criminalizing the theft of a flag belonging to someone else, people violating those laws can be punished, because those measures don’t implicate an exchange of ideas. They are what lawyers call “content neutral.”

The rules are different for actions we call “symbolic speech.” These are actions that are clearly intended to communicate ideas. A silent march by Neo-Nazis–or any group of activists– doesn’t require verbal expression to send its message. We get it.

Flag burning offends us precisely because it sends an unmistakable message of disrespect for the country.

Brayton illuminated another common misunderstanding of what the First Amendment  does and does not protect, in a post about a Tennessee police officer who had advocated killing gay people.

Grayson Fritts, the Tennessee sheriff’s deputy/pastor who gave a sermon calling for LGBT people to be put to death, has been given a buyout and allowed to resign rather than be fired. And his boss says that’s because firing him would violate his First Amendment rights. I’m virtually a free speech absolutist, and I can say without hesitation that he is totally wrong….

If he was just a preacher who said that, I’d excoriate him for it but still support his constitutional right to say it. But as a government employee whose job is to administer justice fairly and equally, it’s a clear violation of his oath of office to think that some of the people he is charged with protecting and serving should be murdered by the state because he doesn’t approve of them. There is no free speech issue there.

A zoning administrator handing out religious tracts on the job is violating the terms of her employment, and a President trying to stifle views with which he disagrees is violating the terms of his. Free speech jurisprudence doesn’t protect them.

When elected officials–from the President on down–are abysmally ignorant of the constitution they swear to uphold, we’re in a world of hurt.

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