Author Archives: Sheila

Mandating Fairness

Whenever one of my posts addresses America’s problem with disinformation, at least one commenter will call for re-institution of the Fairness Doctrine–despite the fact that, each time, another commenter (usually a lawyer) will explain why that doctrine wouldn’t apply to social media or most other Internet sites causing contemporary mischief.

The Fairness Doctrine was contractual. Government owned the broadcast channels that were being auctioned for use by private media companies, and thus had the right to require certain undertakings from responsive bidders. In other words, in addition to the payments being tendered, bidders had to promise to operate “in the public interest,” and the public interest included an obligation to give contending voices a fair hearing.

The government couldn’t have passed a law requiring newspapers and magazines to be “fair,” and it cannot legally require fair and responsible behavior from cable channels and social media platforms, no matter how much we might wish it could.

So–in this era of QAnon and Fox News and Rush Limbaugh clones– where does that leave us?

The Brookings Institution, among others, has wrestled with the issue.

The violence of Jan. 6 made clear that the health of online communities and the spread of disinformation represents a major threat to U.S. democracy, and as the Biden administration takes office, it is time for policymakers to consider how to take a more active approach to counter disinformation and form a public-private partnership aimed at identifying and countering disinformation that poses a risk to society.

Brookings says that a non-partisan public-private effort is required because disinformation crosses platforms and transcends political boundaries. They recommend a “public trust” that would provide analysis and policy proposals intended to defend democracy against the constant stream of  disinformation and the illiberal forces at work disseminating it. 
It would identify emerging trends and methods of sharing disinformation, and would
support data-driven initiatives to improve digital media-literacy. 

Frankly, I found the Brookings proposal unsatisfactorily vague, but there are other, more concrete proposals for combatting online and cable propaganda. Dan Mullendore pointed to one promising tactic in a comment the other day. Fox News income isn’t–as we might suppose– dependent mostly on advertising; significant sums come from cable fees. And one reason those fees are so lucrative is that Fox gets bundled with other channels, meaning that many people pay for Fox who wouldn’t pay for it if it weren’t a package deal . A few days ago, on Twitter, a lawyer named Pam Keith pointed out that a simple regulatory change ending  bundling would force Fox and other channels to compete for customers’ eyes, ears and pocketbooks.

Then there’s the current debate over Section 230 of the Communications Decency Act, with many critics advocating its repeal, and others, like the Electronic Frontier Foundation, defending it.

Section 230 says that “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider” (47 U.S.C. § 230). In other words, online intermediaries that host or republish speech are protected against a range of laws that might otherwise be used to hold them legally responsible for what others say and do. The protected intermediaries include not only regular Internet Service Providers (ISPs), but also a range of “interactive computer service providers,” including basically any online service that publishes third-party content. Though there are important exceptions for certain criminal and intellectual property-based claims, CDA 230 creates a broad protection that has allowed innovation and free speech online to flourish.

Most observers believe that an outright repeal of Section 230 would destroy social networks as we know them (the linked article explains why, as do several others), but there is a middle ground between total repeal and naive calls for millions of users to voluntarily leave platforms that fail to block hateful and/or misleading posts.

Fast Company has suggested that middle ground.

One possibility is that the current version of Section 230 could be replaced with a requirement that platforms use a more clearly defined best-efforts approach, requiring them to use the best technology and establishing some kind of industry standard they would be held to for detecting and mediating violating content, fraud, and abuse. That would be analogous to standards already in place in the area of advertising fraud….

Another option could be to limit where Section 230 protections apply. For example, it might be restricted only to content that is unmonetized. In that scenario, you would have platforms displaying ads only next to content that had been sufficiently analyzed that they could take legal responsibility for it. 

A “one size fits all” reinvention of the Fairness Doctrine isn’t going to happen. But that doesn’t mean we can’t make meaningful, legal improvements that would make a real difference online.

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Tune In To These Presentations!

In lieu of a post today, I am indulging in some PR.

I will be participating in one of three upcoming, free Zoom presentations on gerrymandering, sponsored by the Indiana League of Women Voters. As longtime readers know, I have blogged repeatedly about the anti-democratic impacts of gerrymandering, and I’ve published a couple of articles about it in academic journals (you know, those journals that no one reads). This is your chance to hear from other voices, to see some illuminating films, and to benefit from the experiences of others.

Below is the information about the series, and a link at which to register. DO IT. (Please?)

Documentary Film Series with Panelists and Q&A on Voter Suppression, Gerrymandering, and the Need for Redistricting Reform

Thursday, Jan 28, 7:30-9:00 p.m. EST

Suppressed: The Fight to Vote by Robert Greenwald.
Produced by Brave New Films, this 35-minute documentary chronicles the 2018 midterm election in Georgia where people faced polling place closures, voter purges, missing absentee ballots and extreme wait times —disproportionately preventing students and people of color from voting.

Panelists: Sarah Ferraro (election official, Calumet LWV)
Olisa Humes (President of NAACP chapter, Columbus, IN)

Thursday, Feb 4, 7:30-9:00 p.m. EST

UnCivil War: U.S. Elections Under Siege Produced & directed by

Indiana native Tom Glynn
This 45-minute documentary exposes the web of threats facing our elections today. The film includes a segment on Indiana’s fight to reform redistricting, featuring interviews with Common Cause’s Julia Vaughn and Debbie Asberry of the Indiana League of Women Voters, co-founders of All IN for Democracy, Indiana’s Coalition for Redistricting Reform.

Panelists: Sheila Kennedy (Retired Professor of Law and Policy, School of Public and Environmental Affairs at IUPUI)
Paul Helmke (former Ft. Wayne Mayor, now Director of the Civic Leaders Center at IU).
Peggy Welch (IN State Rep. gerrymandered out of her district in 2011)

Thursday, Feb 11, 7:30-9:00 p.m. EST

Line in the Street Created by film makers Robert and Rachel Millman, this award-winning film on gerrymander reform is about citizen activists and a landmark win for voting rights in the 2018 Pennsylvania Supreme Court case, League of Women Voters Pennsylvania v. Commonwealth of Pennsylvania. This first of its kind lawsuit held that partisan gerrymandering violated Pennsylvania’s State Constitution, irrespective of federal law, or federal courts.

Panelists: Jesse Kharbanda (Hoosier Environmental Council)
Jennifer McCormick (Former IN State Superintendent of Public Instruction)

REGISTER HERE FOR ONE, TWO OR THREE FILMS: You will receive a registration confirmation email containing information & a unique link to attend the programs.

If you have wondered how on earth people like Jim Jordan and Louis Gohmert manage to hang onto their seats in the House of Representatives, this series will explain that phenomenon.

If you live in a state like Indiana, where the lines have been carefully drawn to ensure dominance by rural voters over urban ones, this series will explain why Indiana’s laws are so retrograde and why our state is so firmly located in the “Red” column when election results are being tabulated.

And P.S.While this series is focused on gerrymandering, don’t forget the anti-democratic Electoral College. The Electoral College is the reason that, in a Senate that is split 50-50, the 50 Democratic Senators represent 41.5 million more people than the 50 Republicans represent.

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Falsely Shouting “Fire” In The Digital Theater

Tom Wheeler is one of the savviest observers of the digital world.

Now at the Brookings Institution, Wheeler headed up the FCC during the Obama administration, and recently authored an essay titled “The Consequences of Social Media’s Giant Experiment.” That essay–like many of his other publications–considered the impact of legally-private enterprises that have had a huge public impact.

The “experiment” Wheeler considers is the shutdown of Trump’s disinformation megaphones: most consequential, of course, were the Facebook and Twitter bans of Donald Trump’s accounts, but it was also important that  Parler–a site for rightwing radicalization and conspiracy theories–was effectively shut down for a time by Amazon’s decision to cease hosting it, and decisions by both Android and Apple to remove it from their app stores. (I note that, since Wheeler’s essay, Parler has found a new hosting service–and it is Russian owned.)

These actions are better late than never. But the proverbial horse has left the barn. These editorial and business judgements do, however, demonstrate how companies have ample ability to act conscientiously to protect the responsible use of their platforms.

Wheeler addresses the conundrum that has been created by a subsection of the law that  insulates social media companies from responsibility for making the sorts of  editorial judgements that publishers of traditional media make every day. As he says, these 26 words are the heart of the issue: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”

As he points out,

If you are insulated from the consequences of your actions and make a great deal of money by exploiting that insulation, then what is the incentive to act responsibly?…

The social media companies have put us in the middle of a huge and explosive lab experiment where we see the toxic combination of digital technology, unmoderated content, lies and hate. We now have the answer to what happens when these features and large profits are blended together in a connected world. The result not only has been unproductive for civil discourse, it also represents a danger to democratic systems and effective problem-solving.

Wheeler repeats what most observers of our digital world have recognized: these platforms have the technological capacity to exercise the same sort of responsible moderation that  we expect of traditional media. What they lack is the will–because more responsible moderating algorithms would eat into their currently large–okay, obscene– profits.

The companies’ business model is built around holding a user’s attention so that they may display more paying messages. Delivering what the user wants to see, the more outrageous the better, holds that attention and rings the cash register.

Wheeler points out that we have mischaracterized these platforms–they are not, as they insist, tech enterprises. They are media, and should be required to conform to the rules and expectations that govern media sources. He has other suggestions for tweaking the rules that govern these platforms, and they are worth consideration.

That said, the rise of these digital giants creates a bigger question and implicates what is essentially a philosophical dilemma.

The U.S. Constitution was intended to limit the exercise of power; it was crafted at a time in human history when governments held a clear monopoly on that power. That is arguably no longer the case–and it isn’t simply social media giants. Today, multiple social and economic institutions have the power to pose credible threats both to individual liberty and to social cohesion. How we navigate the minefield created by that reality–how we restrain the power of theoretically “private” enterprises– will determine the life prospects of our children and grandchildren.

At the very least, we need rules that will limit the ability of miscreants to falsely shout fire in our digital environments.

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The Policing Conundrum

In the late 1970’s, I served three years as Indianapolis’ Corporation Counsel–the city’s chief lawyer. Defending police against charges of wrongdoing was one of the tasks of the legal department, and one of the lasting lessons I took away was the need to hire officers carefully.

As a police chief I worked with at the time was fond of saying, “We give these guys guns to carry and authority to use them–we have an obligation to select and train them so they won’t abuse that authority.” During my tenure, the City instituted psychological tests in an effort to weed out applicants who were attracted to policing for authoritarian or other dubious reasons, and made several efforts to improve training.

During last year’s Black Lives Matter protests, I often thought back to those City experiences. I knew many truly admirable officers–but City Legal also had to defend some indefensible ones. And the police union didn’t help–for them, it was all “us versus them,” and “our guys right or wrong.”

Because I knew there was truth to both “the policeman is your friend” and accusations of brutality and worse, I may have been less shocked by a headline in the Guardian after January 6th: “US Capitol riot: police have long history of aiding neo-Nazis and extremists.”

For years, domestic terrorism researchers have warned that there are police departments in every region of America counting white supremacist extremists and neo-Nazi sympathizers among their ranks.

To these experts, and the activists who have been targeted by law enforcement officers in past years, it came as no surprise that police officers were part of the mob that stormed the US Capitol on 6 January. In fact, the acceptance of far-right beliefs among law enforcement, they say, helped lay the groundwork for the extraordinary attacks in the American capital.

Criminal justice news sites have identified at least 30 sworn members of police agencies from some 12 different states who participated in the insurrection, and several on-duty Capitol police officers have been suspended for allegedly supporting, rather than resisting, the rioters. Scholars who study extremist movements and survivors of far-right violence have warned for years that there are close ties between some police and white supremacist groups. 

As news of the participation of police in the insurrection has emerged, some officers have abandoned the traditional “wall of silence..”According to the president of the Major Cities Chiefs Association, the behavior of those participants was so egregious, it prompted fellow officers to alert police chiefs and others to their colleagues’ participation in the mob attack on the Capitol.

Actively helping an effort to overthrow the government might have been a step too far, but the linked article recounts several exceedingly troubling events in which police actively protected Neo-Nazis rather than those they were attacking. One example:

In June 2016 in Sacramento at least ten people were stabbed and injured at a rally of the Traditionalist Workers Party (TWP), a group that extremism experts have classified as neo-Nazis.

The subsequent investigation, led by the California Highway Patrol (CHP), focused on the anti-fascist counter-protesters injured in the stabbings, with records showing that police worked with white supremacists to identify leftist activists and pursue criminal charges against the stabbing victims.

The lead CHP investigator, Donovan Ayres, repeatedly stated in police records that he viewed the neo-Nazis as victims and the anti-fascists as suspects.

Research continues to confirm that protestors on the Left  are far more likely to be arrested than those on the Right.

York University sociologist Lesley Wood analyzed 64 U.S. protests from 2017 and 2018 where counter-protesters were present and arrests were made. She found that right-leaning protesters accounted for 8% of total arrests, while left-leaning protesters accounted for 81%. (The ideology of the remaining arrestees — 38 of them at 14 events — couldn’t be identified from news reports.) Although Wood cautioned against drawing conclusions solely from the raw numbers–more people have attended protests by the Left than the Right–there is nevertheless consistent evidence that police will move far more aggressively against those on the Left.

And it will surprise absolutely no one that–as authors of a 2012 analysis found, “events initiated by African Americans remain a positive and robust predictor of the use of force…”

Part of the problem is that we currently  call on the police to address problems that should be shifted to other forms of public safety, such as social services, youth services, housing, education, healthcare and other community resources. “Defund the police” was one of the stupidest and most counter-productive slogans produced by Democrats (and that is saying something!), but the actual shifts of responsibility being proposed under that banner were mostly sensible.

It is long past time to improve the way we recruit, train and discipline officers, and modify what we ask them to do. 

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Trust Me

One of the approximately ten zillion critical tasks facing President Biden is the need to restore Americans’ trust in the integrity of their government. Biden is well-equipped to begin that restoration–he is a thoroughly decent and trustworthy man–but it won’t be easy.

Time Magazine recently began an article with some very concerning data:

After an unprecedented year of global pain, loss and uncertainty, a new report finds that 2020 marked “an epidemic of misinformation and widespread mistrust of societal institutions and leaders around the world.”

The 2021 Edelman Trust Barometer, a study published annually by global communications firm Edelman, unveiled its findings on Wednesday after conducting more than 33,000 online surveys in 28 countries between October and November 2020. The firm found that public trust had eroded even further in social institutions—which Edelman defines as government, business, non-governmental organizations (NGOs) and media—from 2019 due to the COVID-19 pandemic, global outcry against racial injustice and growing mistrust of what political leaders say and journalists report.

The research found that most people trust businesses– especially their own employers– over government and media. Trust in journalists is split along party lines. Among the consequences of this pervasive distrust is a particularly worrisome one:  only 1 in 3 people are “ready to take the [COVID-19] vaccine as soon as possible.”

Social trust is an essential and irreplaceable basis of a democratic society. Social capital–the bonding and bridging connections to others that make a society work–is defined as a combination of trust and reciprocity.

Social scientists warn that erosion of interpersonal trust has very negative implications for democratic self-government. When I was researching my 2009 book Distrust, American Style, that erosion was already visible. Some scholars suggested that the country’s growing diversity had led to a loss of the cohesion achievable in more homogeneous societies; my research suggested a different culprit. I became absolutely convinced that generalized social trust requires reliably trustworthy social and governing institutions.

In other words, fish rot from the head.

As I argued in that book, the nature of the trust we need is justifiable confidence in the integrity of government and civil society writ large. That confidence was being steadily undermined–not just by what seemed to be daily scandals in business (Enron, Worldcom, et al), sports (doping, dog fighting), religion (revelations about the Catholic Church’s inadequate response to child molestation), and the George W. Bush government (duplicities which seem almost innocent in contrast to the past four years)–but especially  by the Internet.

Suddenly, Americans were marinating in information. Publicity about each scandal and details about a seemingly pervasive lack of trustworthiness was impossible to avoid.

It has gotten considerably worse since 2009. Now we are swimming in a vast sea of information, disinformation, propaganda and conspiracy theories–and as a consequence, trust has continued its sharp decline.

The problem is, without widespread social trust, societies are impossible to maintain.

Think about our daily lives: we deposit our paychecks and trust that the amount will be reflected on our next bank statement. We put a deposit down with the local electric utility and trust that service will be forthcoming. We call the fire department and anticipate their speedy arrival. We drop our clothing off at the cleaners and trust it will be there, cleaned, to pick up. We buy goods online and trust they’ll arrive. We buy meat at the grocery and trust that it has been inspected and is fit to eat. We board an airplane and trust that it has passed a safety inspection and will travel in its assigned air lane..

I could go on and on, but you get the picture. And that picture is much broader–and social trust much more critical– than most of us realize.

An article in The Week had a relevant factoid: evidently, Twitter’s permanent ban of Trump has already made a huge difference. “One research firm found the amount of misinformation online dropped 73 percent in the week after the president and 70,000 QAnon aficionados were shut down by the platform.”

So–the solution to our trust deficit is obvious and simple (cough, cough); we just have to make government visibly trustworthy again, enforce regulations on the businesses and other institutions that are flouting rules with impunity, and figure out how to get online platforms to disallow misinformation and propaganda, without doing violence to the First Amendment.

Piece of cake!

I think I’m going to go pour myself a very stiff drink….

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