Category Archives: Free Speech

Beating That Dead Horse

I’m still mulling over that screenshot I referenced a few days ago–the one from the pro-Trump website showing the names and pictures of four people identified as Democratic Senators who were switching to the GOP in protest of the President’s Impeachment.

As you’ll recall, none of them were real Senators–or, probably, real people.

Whoever created that website clearly operated on the assumption that visitors would be  partisans so civically-ignorant that the phony names and stock photos wouldn’t trigger doubts or send them to a fact-checking site.

It was probably a well-founded assumption.

We occupy a fragmented media environment that increasingly caters to confirmation bias.  As I’ve frequently noted, Americans no longer listen to the same three network news shows and read the same daily newspapers; the ensuing intense competition for eyes, ears and clicks has spawned a treacherous information terrain.

A post at The World’s Most Dangerous Beauty Salon, Inc. is enough to curl your hair. (Sorry–couldn’t resist.) It even has graphs showing how Right-wing hoaxes and Trump’s tweeted lies proliferate.

Yesterday I talked about how Trumpists flocked to their latest article of faith that Trump isn’t really impeached because the House hasn’t transmitted the articles of impeachment to the Senate.  There is no basis in law or fact for that belief, but it’s there anyway, virally spreading throughout Trumpland.

Another profoundly stupid message that has evidently convinced those who want to believe: now that Trump is impeached, he’s automatically eligible to run 2 more times.

With rampant propaganda proliferated over social media facts or truth no longer matter.  Worse, Trump’s Twitter account amplifies these lies.  Every time he tweets one of his insults, childish taunts, threats, or lies,  it goes out to millions or users, retweeted thousands of times.  In the hands of an immoral politician like Trump, social media is weaponized for the dark side.  You can see it, but can also measure it.

The above-referenced graphs of Google trend lines show searches for these “facts.”

When I first practiced law, an older lawyer in my firm told me that there is really only one legal question, and that’s “what should we do?” That maxim applies more broadly; it absolutely applies to the absence of what has come to be called “news literacy.”

Every so often, one of my more naïve students asks why the government can’t just pass a law requiring media outlets to tell the truth. As I try to explain, truth and fact are often honestly contested—and of course, there’s the First Amendment. But we aren’t powerless just because government is prohibited from censoring us.

There’s no reason the private sector cannot develop tools to help citizens determine who they can reasonably rely on—and who they can’t. (The current criticism of Facebook for allowing campaigns to post dishonest political ads is based upon that company’s legal and technical ability to eliminate them.)

What if a nonpartisan, respected nonprofit—say the Society for Professional Journalists—developed an analog to the “Good Housekeeping Seal of Approval,” attesting to the legitimacy of a media source? The award of that seal wouldn’t indicate the truth or falsity of any particular article, but would confirm that the organization was one that adhered to the procedures required of ethical, reputable journalists.

It would take substantial funding, of course, to develop and maintain the capacity to monitor the practices and procedures of media outlets claiming to be “news.” And that “seal of approval” wouldn’t mean that any given report wasn’t flawed in some way—genuine reporters are human and make mistakes. But it would allow citizens who actually care about accuracy and evidence-based reporting to be reassured about the journalistic bona fides of sources they encounter.

Those bona fides are important, because in the new information world we all must navigate, each of us is our own “gatekeeper.” The days when editors and reporters decided what constituted verifiable news are long gone.

And that brings me back to the screen shot shared by my friend.

I know I’m beating a dead horse, but propaganda flourishes when only 26% of adults can name the three branches of government, fewer than half of 12th graders can define federalism and only 35% of teenagers know that “We the People” are the first three words of the Constitution. When politicians make claims that are blatantly inconsistent with America’s history and form of government, widespread civic ignorance virtually guarantees the uncritical acceptance of those claims by partisans who desperately want to believe them.

Adequate civic knowledge can’t guarantee that visitors to a website will know fake Senators when they see them–but it’s an essential first step.

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Book Burning As “Symbolic Speech”

The First Amendment protects the transmission of ideas–all ideas, good or bad–including messages conveyed through what the courts call “symbolic speech.” Flag burning and Nazi marches, among other examples, are offensive precisely because they send messages with which other people strongly disagree.

So much for legal analysis. Symbolic speech can also tell us a great deal about the health of a society and the nature and significance of its cultural conflicts .

In the 1930s, university students in college towns across Germany burned thousands of books they considered to be “un-German”–by which they meant inconsistent with the country’s growing Nazi ideology.

Last week, students at Georgia Southern University burned books written by a Latina author who spoke about white privilege. According to the Washington Post,

In response to Jennine Capó Crucet’s talk on the Statesboro, Ga., campus Wednesday, where she focused her discussion on white privilege, students gathered at a grill and torched her novel “Make Your Home Among Strangers” — about a first-generation Cuban American woman struggling to navigate a mostly white elite college.

Jennifer Wise, a university spokeswoman, issued a statement:

“While it’s within the students’ First Amendment rights, book burning does not align with Georgia Southern’s values nor does it encourage the civil discourse and debate of ideas.”

A subsequent event was canceled, according to Crucet, “because the administration said they could not guarantee my safety or the safety of its students on campus because of open-carry laws.”

A Time Magazine report about the episode had this added–chilling–information:

The university decided to relocate Crucet to a different hotel outside of town after a crowd began to form outside her original lodging. Photos and videos of her book being burned also began to appear on social media, including by many who tagged Crucet in tweets. (Some of these messages have since been deleted.)

This is what happens when prominent people–like the President of the United States– trash the most basic norms of civility in furtherance of racial and religious intolerance, creating an environment in which denigrating the “other” replaces respectful debate, and unwelcome perspectives are met with rage and threats of violence rather than with contending arguments.

This is what happens when people fear the loss of hegemony and yes, privilege. It’s what happens when a President and his political party appeal to those fears and intentionally inflame racial animosities in order to win votes.

We don’t know how many of the students at Georgia Southern University participated in this orgy of resentment and anti-intellectualism. We can only hope they are not representative of either the institution’s student body or the population of Georgia.

I think it was the political philosopher Alexander Meiklejohn who said “People who are afraid of an idea–any idea–are unfit for self-government.” Meiklejohn was right.

I don’t remember who said “It can’t happen here,” but I’m very much afraid that whoever it was, was wrong.

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The Era Of Disinformation

I know I’ve shared this story before, but it seems more relevant than ever. After publication of my first book (What’s a Nice Republican Girl Like Me Doing at the ACLU?), I was interviewed on a South Carolina radio call-in show. It turned out to be the Rush Limbaugh station, so listeners weren’t exactly sympathetic.

A caller challenged the ACLU’s opposition to the then-rampant efforts to post the Ten Commandments on government buildings. He informed me that James Madison had said “We are giving the Bill of Rights to people who follow the Ten Commandments.” When I responded that Madison scholars had debunked that “quotation” (a fabrication that had been circulating in rightwing echo chambers), and that, by the way, it was contrary to everything we knew Madison had said, he yelled “Well, I choose to believe it!” and hung up.

That caller’s misinformation–and his ability to indulge his confirmation bias–have been amplified enormously by the propaganda mills that litter the Internet. The New York Times recently ran articles about one such outlet, and the details are enough to chill your bones.

It may not be a household name, but few publications have had the reach, and potentially the influence, in American politics as The Western Journal.

Even the right-wing publication’s audience of more than 36 million people, eclipsing many of the nation’s largest news organizations, doesn’t know much about the company, or who’s behind it.

Thirty-six million readers–prresumably, a lot like the caller who chose to believe what he wanted to believe.

The “good news”–sort of–is that the Silicon Valley is making an effort to lessen its reach.

The site has struggled to maintain its audience through Facebook’s and Google’s algorithmic changes aimed at reducing disinformation — actions the site’s leaders see as evidence of political bias.

This is the question for our “Information Age”–what is the difference between an effort to protect fact-based information and political bias ? And who should have the power to decide? As repulsive as this particular site appears to be, the line between legitimate information and “curated reality” is hard to define.

Here’s the lede for the Times investigative report on the site:

Each day, in an office outside Phoenix, a team of young writers and editors curates reality.

In the America presented on their news and opinion website, WesternJournal.com, tradition-minded patriots face ceaseless assault by anti-Christian bigots, diseased migrants and race hustlers concocting hate crimes. Danger and outrages loom. A Mexican politician threatens the “takeover”of several American states. Police officers are kicked out of an Arizona Starbucks. Kamala Harris, the Democratic presidential candidate, proposesa “$100 billion handout” for black families.

The report notes that the publication doesn’t bother with reporters. Nevertheless, it shapes the political beliefs of those 36 million readers– and in the last three years, its Facebook posts earned three-quarters of a billion shares, likes and comments, “almost as many as the combined tally of 10 leading American news organizations that together employ thousands of reporters and editors.”

The Western Journal rose on the forces that have remade — and warped — American politics, as activists, publishers and politicians harnessed social media’s power and reach to serve fine-tuned ideological content to an ever-agitated audience. Founded by the veteran conservative provocateur Floyd G. Brown, who began his career with the race-baiting “Willie Horton” ad during the 1988 presidential campaign, and run by his younger son, Patrick, The Western Journal uses misleading headlines and sensationalized stories to attract partisans, then profit from their anger.

But Silicon Valley’s efforts to crack down on clickbait and disinformation have pummeled traffic to The Western Journal and other partisan news sites. Some leading far-right figures have been kicked off social media platforms entirely, after violating rules against hate speech and incitement. Republican politicians and activists have alleged that the tech companies are unfairly censoring the right, threatening conservatives’ ability to sway public opinion and win elections.

In the U.S., only government can “censor” in violation of the First Amendment. But tech platforms have vast power to determine what Americans see, whether the exercise of that power is legally considered censorship or not, and they will increasingly determine what Americans see and read.

Most of my students get their news from social media. To say that the outcome (not to mention the sincerity) of Silicon Valley’s efforts to clean up cyberspace will determine what kind of world we inhabit isn’t hyperbole.

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Civility And The First Amendment

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

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

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

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Twenty-five years ago, when I was Executive Director of Indiana’s ACLU,  I mounted a campaign to promote civility and a more civil discourse. Several members let me know that they were upset, because they were convinced that an emphasis on civility somehow undermined, or was evidence of less than robust support for, Free Speech.

That misunderstanding is evidently shared by the Neo-Nazis who marched in Charlottesville, the creators of racist, homophobic and anti-Semitic websites, and participants in proliferating Facebook confrontations and Twitter wars. They defend vitriol as “Free Speech;” and disparage and dismiss civility as “political correctness.”

They couldn’t be more wrong.

This nation’s Founders understood that all ideas, no matter how noxious, should be available for discussion.They didn’t protect speech because they underestimated the danger bad ideas could pose; they knew how powerful –and dangerous–words and ideas could be. They protected free expression because they understood that giving government the authority to decide which ideas are acceptable—to decide what sort of speech should be permitted– was far more dangerous.

But that’s where civility comes in. If free speech is to achieve its purpose—if it is meant to facilitate a process in which citizens consider and vet all ideas, consider all perspectives—we need to listen to each other. Insults, labeling, dismissing, racial “dog whistles”—all those hallmarks of incivility—make it impossible to have the kinds of genuine conversations and productive disagreements that the First Amendment is intended to foster.

Screaming invective across political or religious divides actually undermines the purpose of the First Amendment’s Free Speech provisions. Is such speech protected? Absolutely. Is it useful? Absolutely not.

There are multiple reasons for the recent rise in incivility, but the anonymity and distance afforded by the internet and social media is clearly an important contributor. As many of you know, I have a daily blog, and I’ve found it necessary to impose standards of conduct for commenters. Civil disagreements are encouraged; ad hominem attacks, personal nastiness and unrepentant bigotry are not welcome and will not be tolerated– not just because they are unpleasant and hurtful, but because people engaging in those behaviors derail the substantive and instructive disagreements that people with different perspectives need to explore if we are going to live and work together.

Responding to a Facebook argument or Twitter blast with an insult may make you feel better, but it doesn’t advance the conversation, and it certainly doesn’t count as participation in the marketplace of ideas.

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“No Brainer” Trump…

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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