Tag Archives: Free Speech

That Misunderstood First Amendment

I know that my constant yammering about the importance of civic education can seem pretty tiresome –especially in the abstract–so I was initially gratified to read a Brookings Institution article focusing on a very tangible example.

Emerging research confirms the damage being done by misinformation being disseminated by social media, and that research has led to a sometimes acrimonious debate over what can be done to ameliorate the problem. One especially troubling argument has been over content that isn’t, as the article recognizes, “per se illegal” but nevertheless likely to cause significant. harm.

Many on the left insist digital platforms haven’t done enough to combat hate speech, misinformation, and other potentially harmful material, while many on the right argue that platforms are doing far too much—to the point where “Big Tech” is censoring legitimate speech and effectively infringing on Americans’ fundamental rights.

There is considerable pressure on policymakers to pass laws addressing the ways in which social media platforms operate–and especially how those platforms moderate incendiary posts. As the article notes,  the electorate’s incorrect beliefs about the First Amendment add to “the political and economic challenges of building better online speech governance.”

What far too many Americans don’t understand about freedom of speech–and for that matter, not only the First Amendment but the entire Bill of Rights–is that the liberties being protected are freedom from government action. If the government isn’t involved, neither is the Constitution.

I still remember a telephone call I received when I directed Indiana’s ACLU. A young man wanted the ACLU to sue White Castle, which had refused to hire him because they found the tattoos covering him “unappetizing.” He was sure they couldn’t do that, because he had a First Amendment right to express himself. I had to explain to him that White Castle also had a First Amendment right to control its messages. Had the legislature or City-County Council forbid citizens to communicate via tattooing, that would be government censorship, and would violate the First Amendment.

That young man’s belief that the right to free speech is somehow a free-floating right against anyone trying to restrict his communication is a widespread and pernicious misunderstanding, and it complicates discussion of the available approaches to content moderation on social media platforms. Facebook, Twitter and the rest are, like newspaper and magazine publishers, private entities–like White Castle, they have their own speech rights. As the author of the Brookings article writes,

Nonetheless, many Americans erroneously believe that the content-moderation decisions of digital platforms violate ordinary people’s constitutionally guaranteed speech rights. With policymakers at all levels of government working to address a diverse set of harms associated with platforms, the electorate’s mistaken beliefs about the First Amendment could add to the political and economic challenges of building better online speech governance.

The author conducted research into three related questions: How common is this inaccurate belief? Does it correlate with lower support for content moderation? And if it does, does education about the actual scope of First Amendment speech protection increase support for platforms to engage in content moderation?

The results of that research were, as academics like to say, “mixed,” especially for proponents of more and better civic education.

Fifty-nine percent of participants answered the Constitutional question incorrectly, and were less likely to support decisions by platforms to ban particular users. As the author noted, misunderstanding of the First Amendment was both very common and linked to lower support for content moderation. Theoretically, then, educating about the First Amendment should increase support for content moderation.

However, it turned out that such training actually lowered support for content moderation-(interestingly, that  decrease in support was “linked to Republican identity.”)

Why might that be? The author speculated that respondents might reduce their support for content moderation once they realized that there is less legal recourse than expected when they find such moderation uncongenial to their political preferences.

In other words, it is reasonable to be more skeptical of private decisions about content moderation once one becomes aware that the legal protections for online speech rights are less than one had previously assumed. …

 Republican politicians and the American public alike express the belief that platform moderation practices favor liberal messaging, despite strong empirical evidence to the contrary. Many Americans likely hold such views at least in part due to strategically misleading claims by prominent politicians and media figures, a particularly worrying form of misinformation. Any effort to improve popular understandings of the First Amendment will therefore need to build on related strategies for countering widespread political misinformation.

Unfortunately, when Americans inhabit alternative realities, even civic education runs into a wall….

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Free Speech And Online Propaganda

The recent revelations about Facebook have crystalized a growing–and perhaps insoluble– problem for free speech purists like yours truly. 

I have always been convinced by the arguments first advanced in John Stuart Mill’s On Liberty  and the considerable scholarship supporting the basic philosophy underlying the  First Amendment: yes, some ideas are dangerous, but allowing government to determine which ideas can be expressed would be far more dangerous.

I still believe that to be true when it comes to the exchange of ideas in what we like to call the “marketplace of ideas”–everything from private conversations, to public and/or political pronouncements, to the publication of books, pamphlets, newspapers and the like–even to broadcast “news.” 

But surely we are not without tools to regulate social media behemoths like Facebook–especially in the face of overwhelming evidence that its professed devotion to “free speech” is merely a smokescreen for the platform’s real devotion–to a business plan that monetizes anger and hate.

We currently occupy a legal free-speech landscape that I am finding increasingly uncomfortable: Citizens United and its ilk basically endorsed a theory of “free” speech that gave rich folks megaphones with which to drown out ordinary participants in that speech marketplace. Fox News and its clones–business enterprises that identified an “underserved market” of angry reactionaries–were already protected under traditional free speech doctrine. (My students would sometimes ask why outright lying couldn’t be banned, and I would respond by asking them how courts would distinguish between lying and wrongheadedness, and to consider just how chilling lawsuits for “lying” might be…They usually got the point.) 

Americans were already dealing–none too successfully– with politically-motivated distortions of our information environment before the advent of the Internet. Now we are facing what is truly an unprecedented challenge from a platform used by billions of people around the globe–a platform with an incredibly destructive business model. In brief, Facebook makes more money when users are more “engaged”–when we stay on the platform for longer periods of time. And that engagement is prompted by negative emotions–anger and hatred.

There is no historical precedent for the sheer scale of the damage being done. Yes, we have had popular books and magazines, propaganda films and the like in the past, and yes, they’ve been influential. Many people read or viewed them. But nothing in the past has been remotely as powerful as the (largely unseen and unrecognized) algorithms employed by Facebook–algorithms that aren’t even pushing a particular viewpoint, but simply stirring mankind’s emotional pot and setting tribe against tribe.

The question is: what do we do? (A further question is: have our political structures deteriorated to a point where government cannot do anything about anything…but I leave consideration of that morose possibility for another day.)

The Brookings Institution recently summarized legislative efforts to amend Section 230–the provision of communication law that provides platforms like Facebook with immunity for what users post. Whatever the merits or dangers of those proposals, none of them would seem to address the elephant in the room, which is the basic business model built into the algorithms employed. So long as the priority is engagement, and so long as engagement requires a degree of rage (unlikely with pictures of adorable babies and cute kittens), Facebook and other social media sites operating on the same business plan will continue to strengthen divisions and atomize communities.

The men who crafted America’s constitution were intent on preventing any one part of the new government from amassing too much power–hence separation of powers and federalism. They could not have imagined a time when private enterprises had the ability to exercise more power than government, but that is the time we occupy. 

If government should be prohibited from using its power to censor or mandate or otherwise control expression, shouldn’t Facebook be restrained from–in effect–preferring and amplifying intemperate speech?

I think the answer is yes, but I don’t have a clue how we do that while avoiding unanticipated negative consequences. 

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A Sword Or A Shield?

Religion has been in the news a lot lately, which probably shouldn’t surprise us. When the times we live in are tumultuous–and I certainly think this era qualifies–people cling to and defend their “eternal verities.”

Of course, that raises an interesting question: what, exactly, qualifies as religion? I think the “eternal verity” descriptor gets at something (excuse the phrase) fundamental: an unshakable belief system based largely on faith in matters that are not susceptible to scientific verification. Political ideologies–including tribal bigotries–fall within that definition.

Unshakable and unprovable beliefs, of course, are the source of a great deal of mischief–and often, tragedy. I’ve posted previously about the tensions within evangelical circles, about some Christians’ insistence that Muslims and Jews cannot be “real Americans,” about the ongoing religious debates over reproductive rights, and (more frequently) about the concerns of America’s founders that led to the religion clauses of the First Amendment. 

With respect to those concerns, an observation by Barney Frank during a recent interview comes to mind.(I’ve loved Barney Frank ever since he held a Town Hall during the fight over the Affordable Care Act, and responded to a looney-tune woman comparing Obama to Hitler and the ACA to Nazism by asking her “On what planet do you spend most of your time?”)

In the interview, Frank was asked the following question: “Some on the left have expressed concern that the 6-3 conservative supermajority on the Supreme Court could erode LGBTQ rights in the name of religious liberty. Are you concerned at all about this?”

Frank responded with his trademark rhetorical acuity. “Yes I am. They’re not going to undo marriage. But I do worry about entities that get public tax money to perform services—they should not in my judgment be allowed to exclude people because of some religious disapproval of their sexual practices. It’s the sword versus the shield. The shield, in legal terms, is a doctrine that prevents other people from intruding on you. A sword is used to intrude on others. And while religious liberty should be a shield, there are concerns that people might make it a sword.”

That verbal picture–a sword or a shield–is an excellent way to approach the First Amendment, and not simply the religion clauses. 

The Amendment was intended to protect an individual’s right to believe pretty much anything (not necessarily to act on those beliefs, however) and to try to convince others to believe those things too. It was also intended to prevent government from getting involved by putting a thumb on the scale, so to speak, or imposing the beliefs of some Americans on others. It was–in Frank’s felicitous phrase–intended to provide individual citizens with a shield and to prevent majorities from using government as a sword.

The problem is, we have millions of people who have “religion” in the sense I defined it above. We have cults, traditional religious affiliations, conspiracy theories, political ideologies of both the Left and Right…in short, we have veritable armies of people convinced of the superior righteousness of their own belief systems. If you need evidence, examine what has been called “cancel culture,” the effort to ostracize people who hold opposing views–not to enter into debate with them, but to shut them down, eject them from the public conversation. (That effort is most definitely not limited to the Left, despite Rightwing efforts to claim otherwise.) 

For numerous reasons, the law cannot classify all these systems as religions for purposes of the First Amendment. That practical reality means that the label “religious” does confer a considerable advantage on beliefs that define themselves in that more limited fashion.

When it comes to traditional religion, Pew recently shared a bit of positive news about the sword and shield finding a significant majority of Americans want government to enforce separation of Church and State. I wonder what a similar study would find about our current commitment to Free Speech–especially in light of recent revelations about Facebook and other social media platforms.

What’s that Chinese curse? “May you live in interesting times…” 

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Read This Book

Last week, I finished reading Jonathan Rauch’s The Constitution of Knowledge. I highly recommend it.

The book is an extraordinarily readable primer on epistemology –how we humans know what we know, and a defense of the proposition that knowledge is a product of collective and institutional effort–what we might call the scientific method writ large. (As Rauch points out, knowledge is “a conversation, not a destination,” and falsification is an essential element in the development of knowledge.)

He begins with the thesis that the open society is defined by three social systems: economic, political, and epistemic, and that each of those systems handles social decision-making about resources, power, and truth. The book goes on to compare and contrast those social systems, and to connect today’s challenges to the long history of philosophical and scientific inquiries about the nature of reality, the differences between faith and fact, and the social and governmental importance of occupying the same “reality-based” community.

The book is also a stirring defense of free speech against assaults from both the  right (censorship) and the left (cancel culture).

Rauch warns that the real danger in a culture where lying is ubiquitous isn’t simply misdirection; it is the undermining of our ability to distinguish between fact and falsehood. As others have noted, the methodology of censorship has changed; today, rather than efforts to simply suppress uncongenial ideas (virtually impossible in our digital age), the tactic is to “flood the information zone with shit”–to confuse, undermine and paralyze rather than brainwash.

In the digital age, Rauch shares a concern that regular readers of this blog will recognize as  a preoccupation of mine–a concern that  the marketplace of ideas is in danger of being supplanted by a marketplace of realities.

Perhaps the greatest virtue of the book is Rauch’s detailed explanation of why facts are–and must be– a social product.

Whether and where and how much of the time we think well thus depends not just on how biased we may be as individuals or even how we behave in unstructured groups; it also depends, crucially, on the design of the social environment in which we find ourselves. To phrase the point more bluntly: It’s the institutions, stupid.

As he says, our task is to create a” social environment which increases rightness and reduces wrongness.” Unlike our governmental constitution, the constitution of knowledge is unwritten, but no less important–it is a “social operating system” that aims to elicit co-operation and resolve differences on the “basis of rules rather than personal authority or tribal affiliation or brute force.” And he reminds us that information technology is very different from knowledge technology.

Information can be simply emitted, but knowledge, the product of a rich social interaction, must be achieved.

Rauch also reminds readers that all knowledge is necessarily provisional–that as we learn more, we revisit and refine what we “know” in light of new information and new knowledge, and that this inevitable impermanence can be very threatening to individuals who need bright lines and eternal truths.

Rauch concludes the discussion with advice on how the reality-based community can respond to and marginalize the trolls and virtue signalers and others who are using our new tools of communication to pollute the national discourse.

Speaking of that national discourse, I thought it was interesting to look at the ideological diversity of those who provided the inevitable jacket “blurbs” praising the book, because they represent a variety of (reality-based)political and social perspectives. Their range testifies to the objectivity of the content.

Bottom line, this is a truly important book, providing an essential overview of how humans know, how the “Constitution of Knowledge” overcomes individual errors and biases, allowing the collective “us” to distinguish between fact and fiction, and why that process is so essential to social construction and stability.

The foregoing description does a real disservice to the scope and richness of this book. You need to read it.

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The Pandemic And The Constitution

Several faculty at the O’Neill School of Public and Environmental Affairs, where I teach, collaborated on a special summer school course investigating the challenges posed by the pandemic to our particular fields–criminal justice, disaster preparedness, non-profit organizations…and in my case, civil liberties.

Here’s an abbreviated (but still pretty long) version of my lecture.

The Coronavirus pandemic has raised a number of issues that are new or even unprecedented. One is a fundamental governance issue: what is the proper balance between government’s obligation to protect and the individual’s right to autonomy, or self-governance?

The rights guaranteed to individuals under the U.S. Constitution are civil liberties; they are guarantees against governmental infringement of our fundamental, human rights. Civil rights, on the other hand, are statutory rights against discriminatory behavior by private entities. The question we’re going to explore in this class is limited to civil liberties—specifically, how much additional latitude the Constitution gives government to limit individual rights in order to discharge its duty to protect our health and lives—civil liberties in the time of a pandemic.

There are a multitude of issues raised by government’s efforts to keep us safe and control the pandemic.

·      One of the most visible—and contentious—issues involves federalism. Federalism, as you know, is the structure whereby government jurisdiction, or authority, is divided between federal, state and local units of government. What is the role of the federal government in a pandemic? What powers and decisions are reserved to the states? In previous situations involving threatened pandemics, there was much more co-ordination, and most of the questions we now face didn’t arise. This time, however, there has been a great deal of public confusion over where various responsibilities lie; the President has asserted his authority to over-rule governors on several matters, but he has also disclaimed responsibility for tasks that he says are state responsibilities. Several of those statements are inconsistent with the Constitution, which vests primary responsibility with the states. As you consider America’s response to the COVID-19 pandemic, and the very uneven experiences of the states, you might also consider where America should place primary responsibility for pandemic response.

·      Another issue that has been debated is: What are the limits of civil disobedience and the First Amendment right to assembly during a pandemic? This issue arises in several ways: some citizens have protested state orders requiring masks and social distancing (and some of those protestors have been armed, which is disquieting). Those protests pale, however, before the hundreds of thousands of citizens who have participated in the widespread Black Lives Matter demonstrations following the murder of George Floyd. The states did not move to curtail those demonstrations on the basis of the threat to public health, and the data we now have suggests that those protests were not, in fact, a triggering event. The lack of spread has been attributed to the fact that protestors were outdoors, and a significant percentage of them wore masks.

·      Requirements to wear masks have generated especially nasty confrontations, with people comparing the requirements to “communism” and “attacks on the Second Amendment.” My own reaction to these assertions is based less on the Constitution—which I think pretty clearly allows such measures –and more on logic, or more properly, the lack thereof. The government can and does require you to wear a seat-belt; ordinances require that we refrain from smoking in public places. For that matter, government requires us to wear clothing—at least enough to cover our genitals—in public. It is illogical to obey these and other common mandates and yet claim that wearing a mask in order to abate a pandemic is somehow a new and offensive invasion of personal liberty. I will say that what I find offensive is the unwillingness of these people to wear a mask intended to prevent them from infecting others. They are either unbelievably selfish, or perhaps they believe, with the President, that the pandemic is a “hoax.”

·      So much for masks. What about the shutdowns, the “stay-in-place” orders? Here, the law seems pretty clear; ever since a 1905 case—Jacobsin v. Massachusetts—the Supreme Court has upheld the right of government to impose quarantines and require vaccinations. Government does have to demonstrate the reasonableness of those measures, but assuming it meets that burden, requirements for quarantines and vaccinations are clearly allowed.

·      What about interstate travel, which the Supreme Court has long held to be a fundamental right? We’ve seen some governors restricting people from entering their states from so-called “hot spots.” I am unaware of cases testing those restrictions.

·      Using cellphones for “contact tracing” has been met with considerable alarm from privacy advocates and organizations concerned with the level of government surveillance. That’s another area of legal ambiguity.

·      The right to vote is a critically-important constitutional right, and cases have already challenged restrictions on the availability of absentee ballots. (A related issue is the evident inability of many states to handle increased voting by mail—situations that may deprive people of their constitutional rights by reason of inadequate capacity to perform, rather than by intent.)

·      Several states have used pandemic restrictions to justify denying women’s constitutionally-protected reproductive rights, spawning litigation about the degree to which those restrictions can be imposed.

·      Both the right of Assembly and the Free Exercise Clause of the First Amendment have been cited by religious organizations—primarily churches—that have objected to limitations on public gatherings. (Medical scientists tell us that singing in a confined space is particularly dangerous.)

·      Then there are incarcerated persons, and would-be immigrants who are being detained at particular risk. At what point do the conditions of confinement rise to the level of “cruel and unusual punishment”?

·      A fascinating case that has been filed raises an increasingly important First Amendment Free Speech/Free Press issue: can sources of disinformation be held liable? The case is Washington League for Increased Transparency and Ethics v. Fox News. The plaintiff alleges that Fox News violated the state’s Consumer Protection Act and acted in bad faith, both by disseminating false information about the novel coronavirus through its television news broadcasts and by minimizing the danger posed by the virus as COVID-19 began to explode into a pandemic.

The Executive Director of the non-profit was quoted as saying that they aren’t trying to chill free speech, but that they believe the public was endangered by false and deceptive communications in the stream of commerce. She emphasized that there are a lot of people who listen to Fox News, and that Fox is not taking the recommendations of public-health officials seriously. She has asserted that “This lawsuit is about making sure the public gets the message this is not a hoax.”

I think it is highly unlikely that the Washington League will prevail, but the lawsuit raises some profound questions about the nature of speech that might be considered the mirror-image of “falsely shouting fire in a crowded theater.” In this case, Fox is accused of shouting “There’s no fire; stay in your seats” when, in fact, there is a fire.

For a more scholarly exposition of these and other civil liberties issues, click here.

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