Author Archives: Sheila

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?

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Two Cheers For The Deep State

I spent the past 22 years teaching students how to become members of the “deep state.”

Of course, we didn’t call it that, or see it as the negative that phrase suggests. Our faculty taught students who planned to enter public service–or civil society–the skills, knowledge and especially the specific ethical principles such service requires.

I even co-authored a textbook: American Public Service: Constitutional and Ethical Foundations. 

What the neanderthals sneeringly call “the deep state” is a bureaucracy devoted to those principles–government employees who understand that their loyalty is not to transient political authorities, but to a constitutionally-grounded ethic of public service. Every time civil servants have thwarted Trump, they have demonstrated a commitment to those principles.

A recent post to Juanita Jean described how a principled government workforce–the  ethical denizens of that “deep state”–acted to “preserve and protect” the operations of one government agency: Radio Free Europe.

Trump had installed one of his loyalists, a typical Trump sycophant named Michael Pack, to manage the agency.  Pack proceeded to replace members of the board and senior staff with Trumpers, ideologues, and conservative activists. He also dissolved all of the boards of agencies under his authority and packed those boards and the staffs of those agencies with what has been described as “a rogue’s gallery of religious fanatics, activists, ideologues and weirdos.”

Biden has already signaled a housecleaning once he assumes office, but according to reports, Pack is not planning on going quietly–he secretly began entering into binding employment contracts with his handpicked staff–the terms of which would block any Biden firings for two years.

The linked post tells what happened next.

When the career staff found out what Pack was doing, they said not no, but hell no, and blew the whistle.  Day before yesterday, they sent a four page letter to McConnell, Pelosi, and Senate and House leaders, the Inspector General, and the presidential transition team.  The letter was signed by over two dozen staffers including the editorial board, the editor in chief, and all the heads of the global regional operations.  In the letter, they made this statement:

“These actions include your recent distribution of a revised grant agreement with RFE/RL that has been unilaterally prepared by your office and is intended to revoke RFE/RL’s financial autonomy and embed your appointees within both RFE/RL and its Board of Directors for a period of two years – an unprecedented departure from RFE/RL’s tradition of working in a bipartisan manner with changing U.S. administrations. This conflicts with the appointment process enshrined in law and in our bylaws, and is precisely the kind of political power maneuver that RFE/RL regularly witnesses in places like Russia, Hungary, Belarus, and Tajikistan. We never thought we’d see it from our own oversight agency.”

What’s particularly galling is that in October a Superior Court Judge in DC ruled that Pack had acted illegally in dissolving the board and seizing control of the Open Technology Fund which was established to help areas of the world access to open and secure internet access.  Pack has ignored the court order and refused to reestablish the boards he dissolved.

Lawyers and political scientists talk a lot about the importance of the rule of law. What Pack attempted at Radio Free Europe is a perfect example of what happens when people in positions of authority ignore their ethical/constitutional obligations and make a mockery of the rule of law.

It took the courageous revolt by those much-reviled bureaucrats of the “deep state” to prevent the thugs and mobsters of the Trump Administration from eviscerating constitutional controls on agency operations.

Similar scenarios have undoubtedly played out in other parts of the federal government. We owe the much-maligned “deep state” our respect and our gratitude.

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Vaccines??

One lesson Americans should have learned from the past four years is that competent governance matters.

I understand that most Americans don’t follow the “inside baseball” of agency regulations, don’t realize the ways in which EPA rules, for example, affect the air they breathe and the water they drink, or how the disaster named Betsy DeVos has undermined their children’s education.But every sentient American should be able to appreciate the consequences of federal ineptitude in the face of COVID-19.

Perhaps it’s true that America was always going to bungle the vaccine rollout, as Ryan Cooper recently wrote in The Week, but if there was any doubt, the last couple of weeks should have dispelled it. Throughout the last, ghastly year, we’ve been treated to a do-nothing federal government–an administration unwilling and unable to provide coherent leadership or even accurate information. The effort to develop a vaccine was successful thanks to international cooperation and the allocation of a lot of money (although I should point out that the first vaccine “past the gate” didn’t even participate in Operation Warp Speed.)

The rollout has been equally unfocused, with the federal government shipping vaccine to the states and telling them to figure out how to distribute it. According to Bloomberg, as of January 2d, something like 12.5 million doses had been sent out, but just over 3 million shots had actually been administered. If efforts continued at this rate, it would take  seven years to inoculate the whole country

President Trump, of course, has completely failed to organize anything at the federal level. For all his manic shattering of political norms, his most characteristic behavior is simply not doing anything in a moment of crisis. Since early November, over a thousand people a day have died of COVID, steadily increasing to nearly 4,000 on some recent days, but Trump has done virtually nothing except try to overturn the election with tweets, play golf, watch television, and pardon his criminal friends…

That of course is making things exponentially more difficult for those lower levels of government. The federal government has always played a central role in previous mass vaccination efforts, because it is the only entity that can coordinate the whole country. States and cities have already endured brutal austerity, laying off millions of employees and cutting back services. Now they are trying to organize a massive logistical operation during a murderous pandemic by the seat of their pants.

It isn’t simply a lack of experience with this level of responsibility. As public health officials have repeatedly pointed out, the state-level public health departments that suddenly find themselves responsible for distribution of the vaccine have been starved of resources for decades.

Here in Indiana, that lack of experience and resources has sent the 80-and-up cohort who have finally been told they can now get vaccinated to a website that wouldn’t be considered “user friendly” even by tech-savvy youngsters. Their alternative is a telephone number that takes callers to an automated phone tree and an interminable wait. (As an aside, whoever designed that website should be tarred and feathered…)

Cooper notes that the utter incompetence that has characterized America’s response to the pandemic means that the task facing the incoming Biden Administration will be enormous.

Frankly I do not believe [Biden] will get very close to the standard of other wealthy countries, but on the other hand he could not possibly do any worse than Trump. Let’s hope when the void at the center of the American state is filled by something, the pace of vaccination can be drastically accelerated, and 2021 isn’t the nightmare that 2020 was.

Meanwhile, as Americans continue to die in horrific numbers, our insane President has taken up full-time residence in la la land, entirely absorbed in his delusional effort to overturn the election and hang onto a job he has shown absolutely no interest in doing.

As the old saying goes, this is no way to run a railroad–or a country.

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Contemplating The Mob

It’s difficult–no, impossible–to describe my reaction to what happened at the nation’s capitol on Wednesday. I gave myself an extra day to process it, but I’m still unable to adequately convey my reaction.

Earlier in the day, my husband listened to the disconnected, angry “speech” delivered by soon-to-be-former President Donald Trump, so I couldn’t help hearing most of it–despite the fact that the sound of his voice makes me physically ill. If I had to characterize what I heard, I would use words like “incoherent” “self-pitying” and “delusional.” 

Trump’s interminable rant finally ended just before 1 p.m.,with his offer to lead a march to the Capitol, where Congress was assembled for the entirely ceremonial acceptance of Electoral College votes. He didn’t lead the march, of course–he went back to the White House–but a large number of those in his audience proceeded to march to the Capitol, where they toppled the barricades that had been erected, broke windows and breached the Capitol building.

Speaking of those barricades, there were fewer than usual, raising some ugly questions made even more concerning by the scarcity and restraint–and in some cases, what looked like participation– of Capitol police. Numerous people have noted that the slim police presence was in stark contrast to security during Black Lives Matter demonstrations last year, when more than 5,000 officers were deployed. There were only 115 on duty at any one time on Wednesday–even though police had ample warning; right-wingers had been engaged in online planning for weeks.

For the next four hours, as my husband and I switched between C-SPAN, NBC and CBS, we saw an attempted coup–and not a bloodless one. One person was taken to a hospital in critical condition and later died. Three others apparently died as well.

From what the television cameras showed, the mob was composed of Trump’s typical supporters– Proud Boys, QAnon conspirators, “good old boys” waving Confederate and Trump flags and toting guns, Neo-Nazis in MAGA hats. One shirtless thug displayed a Ku Klux Klan tattoo on his abdomen, another wore a “Camp Auschwitz” sweatshirt. We watched, astonished, as they took selfies and ransacked Congressional offices.

The Governors of Virginia and Maryland belatedly activated their National Guard units–reportedly, Trump had earlier refused a request to do so– and the Mayor of DC imposed a 6:00 pm curfew. 

An hour or more into the mayhem, in response to pleas from several Senators, Trump issued a statement that the mob should “go home”–but only after repeating his election falsehoods, telling them that he “loved them” and assuring them that he considered them “very special.” 

This riot (on behalf of the “law and order” party) can be directly attributed to Trump and the cynical and deeply dishonorable members of the House and Senate–including Indiana Senator Mike Braun– who had announced their intent to “object” to the receipt of Electoral College votes. Their unprecedented betrayal of their oaths of office finally drew bipartisan condemnation.

I was no fan of former President George W. Bush, but I applaud his statement that he had been “appalled by the reckless behavior of some political leaders since the election.” Even Mitch McConnell–aka Mr. Evil–excoriated those who participated in what can only be considered a frontal attack on American democracy. And for the first time in four years, Mike Pence (reluctantly) declined to enable and defend one of Donald Trump’s multiple assaults on the Constitution.

As for Hawley, Cruz (and Braun), conservative columnist George Will said it best:

The Trump-Hawley-Cruz insurrection against constitutional government will be an indelible stain on the nation. They, however, will not be so permanent. In 14 days, one of them will be removed from office by the constitutional processes he neither fathoms nor favors. It will take longer to scrub the other two from public life. Until that hygienic outcome is accomplished, from this day forward, everything they say or do or advocate should be disregarded as patent attempts to distract attention from the lurid fact of what they have become. Each will wear a scarlet “S” as a seditionist.

It’s too soon to predict what the ultimate fallout from this appalling insurrection will be. For now, I’ll just share a message posted to Facebook by my friend Kevin Osborn–a message with which I entirely agree:

As the sun sets on this momentous day, I am thankful for Stacey Abrams and others in Georgia for their phenomenal work in getting out the vote. I refuse to let the actions of a relatively small group of treasonous domestic terrorists and their addled, unfit leader ruin the historic event that took place last night and that so many have fought and died for over many years. We will move forward from this treachery and those that cannot will be left behind in history’s trash bin.

Amen to that.

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Lessons From Georgia

If Jews recognized saints, I’d lobby for Stacy Abrams.

Readers of this blog undoubtedly know the impetus for “Fair Fight,” her organization dedicated to combatting vote suppression and increasing registration of previously unregistered/unmotivated citizens. Abrams ran for Governor against Brian Kemp, who was then the Secretary of State administering that same election, a glaring conflict of interest. Kemp threw out some fifty-thousand registrations–most of which were from Black voters–on what observers called thin pretexts, which helped him win that election.

Abrams, formerly minority leader of the Georgia Statehouse, did what far too few of us do in such circumstances. She didn’t retreat to lick her wounds; instead, she created a movement to challenge vote suppression, engage the previously disengaged, and make the system work properly.

As an article in the New York Times yesterday put it, Abrams is currently one of the most influential American politicians not in elected office.

Abrams conceived the strategy and built the political infrastructure its implementation required. As a result, turnout among the state’s Black, Latino and Asian voters increased substantially. Her work was pivotal to Biden’s presidential win in Georgia, and in yesterday’s Senate run-offs.

Of course, yesterday’s stunning results also owed a debt to our insane President, whose illegal, embarrassing and unhinged attacks on the Republicans running Georgia’s election apparatus evidently depressed turnout in areas that were previously heavily pro-Trump. (As one Republican official reportedly noted, the GOP had to overcome the burdens of unappealing candidates and a maniac President..)

So–improbable as it may seem, the very southern State of Georgia will send a Black man and a Jewish man to the U.S. Senate. (File under “Miracles Happen.”)

Aside from the depressing fact that some 70 million Americans cast  ballots for the maniac, and the even more horrifying sight of a mob of goons, thugs and White Supremacists storming the Capitol yesterday in an attempted coup to support that maniac (more about that tomorrow), what lessons can we take from the ways in which this election cycle has played out thus far? 

The most obvious lesson–courtesy of Stacy Abrams–is the importance of grass-roots organizing. Whether a similar effort in Indiana would be effective is debatable, since our state lacks the substantial minority population on which Abrams built. But it certainly seems worth a try.

There is also a less obvious, but equally important lesson, and it is the extreme damage done by the way the electoral college operates today,and gives oxygen to the Trumpian mobs.

The linked op-ed, co-authored by Trevor Potter and Charles Fried, makes that case. Potter is a former chairman of the Federal Election Commission, appointed by George H.W. Bush.  Fried was solicitor general under President Ronald Reagan. (Hint: They aren’t among those “socialists” that Republicans see everywhere.)

Potter and Fried argue that the 2020 presidential election has been a disaster for people who think the Electoral College is still a good idea.

The presidential election is really 51 elections, each conducted and certified by its jurisdiction. Those who support the continued use of the Electoral College system say that the states “speak” to one another through it and so it performs a vital role in promoting national unity and the constitutional system…

But the multiple challenges to the votes of the people this year — expressed through the states and their votes in the Electoral College — teach us that the Electoral College is a fragile institution, with the potential for inflicting great damage on the country when norms are broken. Many of the attempts to subvert the presidential election outcome this year are made possible by the arcane structure and working of the Electoral College process and illustrate the potential for the current Electoral College to promote instability rather than the stability the framers sought.

Actually, I agree with the historians and constitutional scholars like Akhil Reed Amar, who argue “stability” had nothing to do with it–that the Electoral College was the price paid to keep slave states in the newly formed union. But Potter and Fried are certainly correct when they assert that this election cycle has provided a roadmap to politicians of either party who want to change an election’s outcome through postelection manipulation of the Electoral College, and that the mere existence of such a roadmap is destabilizing.

All of this will, and should, propel calls for modernization of the Electoral College. Many will seek its abolition and replacement by a single nationwide poll. But at the very least, the irrational intricacies of the 1887 Electoral Count Act should be replaced by a uniform system guaranteeing that the popular vote in each state controls the ultimate allocation of that state’s electors. The 2020 election has highlighted the destabilizing tendencies in the current system and the need for reform.

Americans have a lot of work to do. In the interim, I plan to light a candle to Stacy Abrams…

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