Category Archives: Free Speech

Rokita Again

I have wasted far too many pixels over the years on Todd Rokita, Indiana’s pathetic Attorney General. (I really should put quotation marks around “Attorney General,” because Rokita has shown scant interest in the actual job, preferring performative outreach to MAGA partisans.) But once again, he has done something I can’t simply ignore.

Rokita has filed suit against members of the Indiana Supreme Court Disciplinary Commission for “violating his First Amendment rights to free speech.” And how, you might ask, has the Disciplinary Commission done this? Evidently, by investigating the multiple disciplinary grievances filed against him–grievances that he lists in his complaint, and that the Commission has a duty to investigate. (He also included a grievance initiated by the Commission itself, an investigation into whether Rokita–in a very Trumpy move–had directed his staff to review the voting records and political-donation histories of people who had filed grievances against him.)

Rokita’s filing also revealed that Hoosier taxpayers have paid $491,508 to the private attorneys he has employed to defend against these charges.

I’ve been a First Amendment purist for a long time, but I was unaware that the First Amendment protects officials against inquiries into charges of ethical misconduct. John Krull–who, like yours truly, was once an Executive Director of Indiana’s ACLU–has also weighed in on the lawsuit, concluding that complaint “makes clear what his real grievance is. The commission hurt his feelings by examining his most questionable actions.” Krull writes that

Indiana Attorney General Todd Rokita has genuine gifts.

 He is spectacularly good at wasting time, squandering taxpayers’ money, starting silly fights and wallowing in self-pity.

On the negative side, though, he has no gift at all for exercising common sense. The poor fellow doesn’t seem to have the wisdom God gave a pet rock.

Krull points out that, by filing the suit, Rokita has publicized the significant number of times his fellow lawyers have filed complaints about his conduct, noting that “Our attorney general has been accused of unprofessional and unethical conduct almost as often as Al Capone was.” Krull also notes that Rokita has used his office to pursue complaints that are entirely personal, including an argument over the purchase of a jet ski. (Last time I looked, the position of Attorney General does not require use of jet skis…)

A lawyer friend of mine who is equally bemused by this recent, additional evidence of Rokita’s cluelessness, supplied me with case law suggesting that Rokita’s suit faces long odds–cases that strongly suggest that suing  the Commission is poor strategy–not to mention the blatant impropriety of using our tax dollars to sue the Commission. As he noted, Rokita should be doing that “on his own dime and on his own time.”

Here are a few quotes from the cases my friend supplied.

In the Matter of M. Daniel Friedland, the Court wrote ”

The evidence in this case also demonstrates that Respondent engaged in a pattern of litigation directed toward intimidating and influencing public officials and adverse witnesses. He attempted to use the lawsuit as a weapon against those who administered and prosecuted grievances against him. His motivation is evident from the fact that he directed this litigation at the individuals involved in the grievance process, only tangentially attacking the merits of the issues to be determined through this process. The Respondent wanted to punish the persons who filed grievances, and intimidate the persons who administered the process.

In In Re Terry,

After members of the Ripley County bar initiated a request for investigation of respondent by the Disciplinary Commission, respondent and his agents began a massive publicity campaign to abort the disciplinary proceedings. Petitions were prepared in support of respondent. On February 23, 1974, respondent, in response to a question from the pulpit during a worship service, stated that he had extra petitions in his car for anyone wishing to distribute them. Respondent knew, or should have known, that requests for disciplinary action are not terminated at the outset by publicity campaigns. Disciplinary proceedings will be terminated after initial investigation only if no substantial question of misconduct exists.

And in IN RE: Thomas M. Dixon the Court was directly on point, writing that the “First Amendment protects the societal interest of enabling robust public discourse on issues of public concern, and its protections are therefore necessarily very broad. However, this interest must be balanced against the societal interest in the public’s confidence in an impartial adjudicatory process, which unwarranted public accusations by an attorney against a judicial officer do nothing but weaken and erode.”

A competent lawyer would have researched these (and several similar) precedents before bringing a case that only serves to highlight his unfitness for public office.

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An Indecent Law

How many times have we seen efforts at censorship justified as “protecting the children”? This solicitous concern for children never seems to extend to feeding hungry children or clothing freezing children…instead, it is almost always focused on protecting them from what the concerned folks consider smut–which is pretty much anything of which they disapprove.

I’ve seen this show multiple times. Currently, it’s playing in Ohio, where Republican lawmakers are proposing to protect children by “updating” the state’s obscenity laws with an “Indecent Exposure Modernization Act.”

“Ohio has clear gaps in its indecent exposure and obscenity laws,” said Rep. Josh Williams, R-Sylvania Township, one of the bill’s sponsors. “The legislature has said time and time again that kids should not be exposed to obscene material. Now we are taking the step to ensure that the same type of obscene performances that they cannot watch online, they can’t watch in person.”

And what sort of “obscene performances” are these intrepid culture warriors seeking to ban? If you guessed drag shows, you win the prize….The legislation identifies “obscene performances” as those with “performers or entertainers who exhibit a gender identity that is different from the performer’s or entertainer’s biological sex using clothing, makeup, prosthetic or imitation genitals or breasts, or other physical markers.”

Mrs. Doubtfire, I presume…

The Ohio ACLU, among others, warned against the “chilling effect” such laws have on free speech, noting that for decades, these types of laws have been used to target unpopular speech and art.

“This bill takes regular, everyday activities and turns them into potential crimes, based on whether somebody else might be offended by what other people are wearing,” said Dwayne Steward, executive director and CEO of Equality Ohio and Equality Ohio Education Fund, in a statement. “This bill gives government the unacceptable power to police what people wear.”

In a nod to the very subjective nature of what constitutes “obscenity,” the legislation Includes exceptions for breastfeeding and “bona fide” artistic performances. The questions of who decides when an artistic performance is “bona fide,” and what criteria are to be applied in order to make that determination are not addressed. Several constitutional law professors, as well as the ACLU, explained that the bill is unconstitutionally vague, requires (already overburdened) police to act as art critics, and potentially criminalizes wearing a bikini or a T-shirt without a bra.

These efforts–piously defended as necessary to “protect children”– crop up with regularity, and just as regularly are struck down by the courts.

Remember when Congress passed the Communications Decency Act, criminalizing the sending of “indecent” or “patently offensive” material to minors over the internet? In ACLU vs. Reno, he Supreme court held that the terms of the Act were unconstitutionally vague and overly broad, and thus violated the First Amendment. The Court emphasized that phrases like “indecent” and “patently offensive” were not clearly defined–indeed, were in the eye of the beholder–and that senders would inevitably be uncertain about just what was being prohibited. That uncertainty would create a chilling effect on lawful speech. The Court also pointed out that vague laws encourage arbitrary enforcement.

The Court compared that measure to “protect children” to burning down a village to roast a pig. I loved that metaphor, because that’s exactly what these culture warriors would be doing if their persistent assaults on the Bill of Rights were successful.

If there is one principle that pervades the Bill of Rights– one principle that animates our constitutional “village”– it is “live and let live,” the principle that, so long as we are not harming the person or property of someone else, we are each free to live our lives as we see fit. I think the majority of Americans are willing to live by that credo, but throughout our history we have had to contend with numerous moral scolds intent upon preventing others from engaging in behaviors and making life choices of which they disapprove.  Insisting that other people’s choices are “harmful to children” is the strategy they employ to justify imposing their beliefs on others.

Meanwhile, what is really harmful to children is poverty. Not having enough to eat. Not having a warm coat in winter. Substandard housing. When Ohio’s legislature fixes those harms, I’ll believe they actually give a rat’s patoot about children.

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Montana And Citizens United

Just in time for some good news for a change, Montana–of all places–has come through. Citizens in that state are preparing to vote on a ballot measure that would neuter the effects of Citizens United in that state. If it passes–and the odds are good–it would encourage similar efforts in other states. And given the national “popularity” of Citizens United (some polls show 75% of Americans opposed to it), plenty of other states would follow.

According to a report in the Prospect, which calls the initiative “ingenious,” the measure wouldn’t legally overturn the ruling– but it would negate its consequences. The proposal is titled “the Transparent Election Initiative,” and according to the description, it “wouldn’t affect corporations’ rights—which Citizens United extended to buying elections—but rather their powers, which are created exclusively by the individual states.”

As Harold Meyerson writes,

This argument—which, to the best of my knowledge, has never been tried before—is laid out in a brilliant paper that the Center for American Progress published last month. The paper’s author is Tom Moore, a senior fellow at CAP who previously served as counsel and chief of staff to a longtime member of the Federal Election Commission. Moore’s paper is exhaustive and complex, but his argument can be boiled down to simply this: All American corporations are chartered and given their powers by state governments, which means that state governments (or voters in states where initiatives and referendums can enact or change laws) can rewrite their charters to deny corporations the power to involve themselves in elections.

The paper to which Meyerson refers contained copious citations, but evidently all of them were in furtherance and confirmation of an 1819 ruling written by then-Chief Justice John Marshall, who wrote:

A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law. Being the mere creature of law, it possesses only those properties which the charter of its creation confers upon it, either expressly, or as incidental to its very existence … The objects for which a corporation is created are universally such as the government wishes to promote. They are deemed beneficial to the country; and this benefit constitutes the consideration, and, in most cases, the sole consideration of the grant.

Multiple court rulings also confirm the “unchallenged principle” that the states, not the federal government, have the authority to grant corporations their powers. Meyerson notes that in his opinion in the intellectually indefensible Hobby Lobby case, which endowed corporations with religious scruples that allowed them to avoid providing contraception coverage to their employees, “none other than Samuel Alito wrote that ‘the objectives that may properly be pursued by the companies in these cases are governed by the laws of the States in which they were incorporated.’

Furthermore, states have taken advantage of their power to amend their charters and have limited specific powers. In 1876, Texas removed banks’ power to issue bills of credit; in 1913, New Jersey limited the power of holding companies.

My initial reaction was “great–but what about Delaware?” As every corporate lawyer knows, thanks to its very corporate friendly laws, lots of companies that do business elsewhere are chartered in Delaware, which would be unlikely to follow Montana’s example. Meyerson says the paper addressed that concern, pointing to multiple court decisions holding that “foreign corporations”—that is, corporations chartered in other states– must comply with the laws of the states in which they do business. 

The ballot initiative rests on the distinction between powers (which are created by the states) and rights (which are protected by the Bill of Rights, and were federalized by the 14th Amendment). In Citizens United, the Supreme Court held that corporations’ free speech rights included the right to participate financially in elections. 

Kudos to Montana and here’s hoping for passage of the Transparent Election Initiative!

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Pro-America?

Americans have engaged in a longstanding argument about the nature of patriotism–and how it differs from nationalism. I agree with those who argue that a true patriotism requires allegiance to the nation’s founding principles, and includes an obligation to protest official actions that violate those original commitments. Nationalism, on the other hand, requires belief in “my country right or wrong”–blind support for wherever the nation’s leaders take us.

It has become abundantly clear that the various members of the Trump administration fall into the second camp, which brings me to the nationalist idiocy of FCC Chair Brendan Carr.

As a Daily Beast headline accurately put it, “Trump Goon Demands ‘Pro-America’ Content from the Networks.” Among Carr’s suggestions: broadcasters should start each broadcast day with the ‘Star Spangled Banner’ or Pledge of Allegiance” and offer viewers daily “Today in American History” announcements that explain “significant events that took place on that day in history.” (Somehow, I doubt that those history lessons would include the My Lai massacre or Emmitt Till’s murder…) Carr wants “patriotic, pro-America content that celebrates the American journey and inspires its citizens.”

Evidently, truly “pro-American” material would exclude televised interviews with Democratic candidates, since the memo followed a widely-publicized episode in which Stephen Colbert was forbidden to air a segment with Texas Democrat James Talarico, who is running for the Senate. Colbert had been told by CBS lawyers that airing the interview would run afoul of Carr’s decision to enforce the FCC’s “equal time” rule for talk shows, which had traditionally been exempt from that rule. This was not a one-off; a couple of weeks before this incident, Carr had launched an investigation into The View after it broadcast an interview with Talarico.

Carr is evidently as stupid as the rest of Trump’s appointees: Colbert published the video on his YouTube channel, where it has garnered more than 8 million views to date–far more than most of his late-night interviews. (It also generated $2.5 million for Talarico’s campaign in a mere 24 hours.)

An article in The Independent also covered Carr’s request that broadcasters join his Pledge America Campaign–a promise to air “patriotic, pro-America content that celebrates the American journey and inspires its citizens by highlighting the historic accomplishments of this great nation from our founding through the Trump Administration today.”

Carr rather clearly doesn’t understand what it means to be a truly patriotic “pro American.” Anna Gomez–who is the only Democratic Commissioner at the FCC, took to X to school him, writing that “Nothing is more American than defending our constitutional rights against those who would erode our civil liberties. If broadcasters choose to participate in this FCC campaign, they can do so by defending their First Amendment rights and refusing government interference.”

Carr and his tone-deaf efforts to undermine the First Amendment are just one aspect of the Trump administration’s nationalism–a nationalism that is far from patriotic. Historians and political scientists define patriotism as affection, pride, and support for the shared values of one’s country, and a commitment to support national improvement. Nationalism, on the other hand, is a devotion to “blood and soil.” It emphasizes the superiority of the nation over others, and fosters exclusionary, competitive, and aggressive attitudes toward foreign nations.

There’s an excellent quote attributed to someone named Sydney Harris: “the patriot is proud of his country for what it does, and the nationalist is proud of his country no matter what it does.” Precisely.

After the close of the Olympics, the New York Times published an article titled “At the Olympics, I Saw the Difference Between Nationalism and Patriotism.” It traced that distinction with references to the conduct of both athletes and audiences, and strongly rebutted J.D. Vance’s insistence that America’s “distinct national culture is part of what makes international institutions suspect, immigration threatening and alliances based on shared principles unwise.” The essay concluded:

With our wallets, our attention, our time and our collective groans with every fall and cheers for every newly realized lifelong dream, the world’s citizens are sending a message: We proudly root for our countries, but we are more than just our countries. And in many cases we are better — much better — than the governments in charge of them.

To be “pro America” is to be patriotic–not nationalistic. Too bad Trump and Carr don’t understand the difference.

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Misinformation As A “Wicked Problem”

I continue to be a “when” person, not an “if” person. What I mean by that is that I become more convinced every day that America will emerge from the disaster that is Trump and MAGA, and that the pertinent questions we will face have to do with how we will repair things when that day comes and we have to repair not just the damage done by the mad would-be king, but the structural flaws that enabled his unfit occupancy in the Oval Office.

Political scientists, sociologists, lawyers, law professors and a wide variety of experts in other fields are already offering their perspectives on how to address the Supreme Court’s corruption, protect Americans’ voting rights, jettison (or at least alter) the filibuster, and neuter the Electoral College– proposals intended to fix the structural weaknesses that have become all too obvious.

In most of these areas, we’ll undoubtedly argue about the approaches and details, but fixes are possible.

There is, however, one truly enormous problem that has no simple answer. As I have repeatedly noted on this platform, we live today in an absolute ocean of mis- and dis-information. There are literally thousands of internet sites created to tell us untruths that we want to believe, technologies that were created to mislead, cable and streaming channels in the business of reinforcing our preferred biases–even psuedo-education organizations that exist solely to propagandize our children. There is no simple remedy, no policy prescription that can “fix” the Wild West of our “information” environment–and virtually any effort to shut down propaganda will run afoul of the First Amendment and its essential Free Speech guarantees.

The widespread availability of misinformation is what academics call a “wicked problem.” Wicked problems have a number of characteristics that make them difficult to manage and– practically speaking– impossible to actually solve. They can’t be fully defined because their components are constantly changing; there’s no one “right” solution– possible solutions aren’t true or false, but rather good or bad, and what’s good for one aspect of the problem might exacerbate another part (in other words, the interconnections mean that solving one part of the problem can easily aggravate other parts); and there’s no clear point at which you can say the problem is solved.

Misinformation is a whole set of wicked problems– on steroids.

As a Brookings Institution publication put it some time back, 

Disinformation and other online problems are not conventional problems that can be solved individually with traditional regulation. Instead, they are a web of interrelated “wicked” problems — problems that are highly complex, interdependent, and unstable — and can only be mitigated, managed, or minimized, not solved.

The Brookings paper recommended development of what it called “an architecture” that would “promote collaboration and build trust among stakeholders.” It noted the availability of several models that currently promote collaboration among a number of  stakeholders, including the Global Internet Forum to Counter Terrorism (GIFCT) and the Information Sharing and Analysis Centers (ISACs). These and similar successful organizations have learned how to adapt and innovate, and have focused on trust-building and information-sharing.

Any effective effort to counter misinformation and propaganda will need to go beyond the creation of other, similar organizations. If and when we re-institute a rational government and are gifted with a working Congress, there will be a role for (hopefully thoughtful) regulation. And of course, long term, the most effective mechanism must be education. Students need to be taught to recognize the difference between credible and non-credible sources, shown how to spot the markers of conspiracy theories and propaganda, and given tools to distinguish between deep fakes and actual photography.

The crux of the problem, of course, is that all-too-human desire to justify one’s particular beliefs and biases–the allure of “information” that confirms what that individual wants to believe. We all share that impulse, and its existence is what makes the manipulation of data and the creation of “alternative” facts so attractive. It’s also what feeds “othering,” bigotries and self-righteousness.

The persistence of that very human desire is what makes misinformation–also known as propaganda–such a wicked problem.

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