Category Archives: Free Speech

Okay–Let’s Talk About Free Speech

I haven’t posted about the indictment filed against Donald Trump by Jack Smith, because everyone  else in the universe is contributing to that discussion. But one element of those analyses/debates sets my hair on fire.

Nothing about this prosecution is about Free Speech. Nothing!

I taught my classes in Law and Public Policy through a constitutional lens. I spent the first part of the semester on what I call the “constitutional architecture”–very much including the Bill of Rights. (I was always shocked by the number of students who came to class totally unaware that the First Amendment protects citizens against government censorship–not from other people’s negative responses.)

When we came to freedom of speech, I wanted students to understand the difference between speech–defined as the constitutionally-protected communication of an idea, no matter how wrong or stupid or hurtful–and action, including action effectuated through speech.

Some of the examples I used:

  • I tell you I’ll make you a great deal on a diamond ring. It turns out to be a cubic zirconium. My representations that it was a diamond aren’t protected “speech,” they are fraud–a criminal action.
  • I call you every 15 minutes and scream at you over the phone. You call the police. I protest that I am engaging in freedom of speech. I’m wrong–harassment is an action, and the government has a right to proscribe it.
  • I’m a police officer, and I’m sitting in a restaurant booth. I hear the people in the next booth planning to rob the local bank. One says, “okay, I have the car. You have the gun. I’ve cased the place, and if you are there promptly at two, when the security officers shift, you should be able to get in and out by ten after, and I’ll be waiting.” A conversation of this specificity (unless they are actors rehearsing a scene!) constitutes the initial steps–actions–of the commission of a crime. I need not wait until they are in the middle of that bank robbery–I’m entitled to arrest them now.
  • You are a MAGA fanatic, and you regularly post diatribes to social media about how horrible Joe Biden is, how government and the “deep state” cannot be trusted and how you regularly pray for the painful death of all Democrats. Aside from your social media screeds, you take no action to harm anyone. That’s free speech, and you’re home free–at least, when it comes to the criminal law. (If you accuse specific political foes of being pedophiles or Satanists or whatever, you will risk a civil suit for libel or defamation, but absent credible threats and/or concrete actions to harm someone, you will not face criminal prosecution.)

Bribery, Insider trading. Identity theft and selling state secrets to foreign governments are other examples of crimes committed via speech.

One of the reasons people get confused about what free speech is and what it isn’t is the fact that “speech”–that is, transmission of a message– can be accomplished without words. (The legalese is “symbolic speech.”)

Burning a flag (assuming you own that flag and you aren’t violating a dry weather “no burning” ordinance) is protected by the First Amendment, because the whole purpose of that act is to send a message that the burner disapproves of the country. It’s a message that angers a lot of people, but that doesn’t justify government punishing it.

Nazis marching in Skokie, Illinois or Charlottesville, Virginia are sending an equally clear message, even without the latter’s accompanying chants. We all know what that message is, and–again, absent violence, vandalism or other hooliganism–it’s protected by the First Amendment.

The text of the Trump Indictment acknowledged that his lies were protected speech. Whether he believed them or not is irrelevant–so long as he was only posting his crazed diatribes and screaming about the election being rigged, the First Amendment protected him. Once he took concrete actions to overturn the results of the election and remain in power, however, the Free Speech clause no longer applied.

I’ve read several columns by people who should know better, gravely opining that prosecutors will have to establish whether Trump actually believed the garbage he was spewing, and noting that making such a showing is difficult. Those writers need to re-take  high school civics. As a better-educated pundit noted, I may be genuinely convinced that I am entitled to your car, but stealing it is still a crime.

Trump’s MAGA defenders can scream about the Department of Justice “criminalizing” Free Speech,  but those protestations will only sound plausible to people who slept through their high school government class.

This whole debate proves my point about the deplorable level of Americans’ civic literacy.

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The Conundrum

In a discussion the other day with a friend and former legal colleague, we recalled the mantra of the law firm with which we’d once practiced: there is only one legal question, and it’s “what do we do?” What course of action do we advise the client to pursue?

I think about that mantra a lot these days, and most frequently in connection with the media.

I’m convinced that so many of the problems that bedevil American society today are exacerbated by a media landscape that is wildly fragmented. Not only are numerous media outlets–credible and not-so-credible– nakedly partisan, but thanks to the internet, they are all immediately accessible to citizens looking for “news” that confirms their world-views.

Partisan news organizations are nothing new–if you don’t believe me, read up on the vicious contemporaneous attacks on “ungodly” Thomas Jefferson. What is new is the sheer number of media outlets and the ease of accessing them.

The problem isn’t confined to out-and-out propaganda mills. Dubious stories from slanted outlets can and do get picked up by credible news organizations, and its a truism that later “corrections” are seldom as widely read as the initial misinformation.

Josh Marshall at Talking Points Memo recently reported on an example: the New York Post had run a “made-for-Fox News story” about veterans who, it reported, had been “booted out of hotels about an hour north of New York City to make way for migrants”.

As I said, it was a made-for-Fox News: Here are these disabled or impoverished American veterans getting kicked to the curb to make way for migrants with no permission to be in the country in the first place. Politicians jumped on the story. The Post ran it. It made the rounds of the wingnutosphere. Fox of course got on board.

But none of it was true. And I don’t just mean not true in the sense of being misleading or incomplete or embellished or sensationalized. It was a hoax. Sharon Toney-Finch, the founder and head of a small local nonprofit, the YIT Foundation, which focuses on veterans issue and premature births (?) was the source of the original story. But it turns out the she recruited a group of 15 homeless men from a local shelter to impersonate veterans and talk to the press about their tale of woe.

After a few of the homeless men admitted the truth to reporters, Toney-Finch confessed she’d made the whole thing up.

The hoax was apparently perpetrated with the aim of creating a media spectacle for  the right-wing press–to focus on the Biden administration’s terrible, awful, no-good  approach to immigration, and  the purported national immigration crisis. Even the Post has now been forced to recant and report on Toney-Finch’s hoax.

A local paper, The Mid-Hudson News, uncovered the truth with what Marshall notes was “a lot of shoe-leather reporting.”

This relatively minor story is a microcosm of our current dilemma. Today’s media environment is a Wild West of propaganda, spin, misinformation and outright lies. Along with the partisans peddling that propaganda and those lies are genuine reporters working for outlets that practice old-fashioned “shoe leather” journalism. And protecting them all are the Free Speech provisions of the First Amendment.

So–what do we do?

What we clearly cannot and should not do is eliminate or constrict those First Amendment protections. The result of that would be to hand over to government the power to censor communications.

In some cases, like the recent Dominion lawsuit against Fox, libel law can be employed to punish the most egregious behaviors, but this is a very slim reed: few of those who’ve been libeled have the means to bring such suits, and they are–quite properly–very difficult to win.

Unfortunately, new rules that would make it easier to sue over misinformation would end up constraining real journalists as well as the sloppy or dishonest ones–when you are creating the “first draft of history,” it can be easy for even good reporters to make mistakes, not to mention that in the multiple gray areas of modern life, one person’s truth is another person’s lie.

The only answer I can come up with is better education and a change in the information culture–both long-term projects. Teaching critical thinking and media literacy in the schools–although highly unlikely in those fundamentalist religious schools to which our legislature sends our tax dollars–would help. Organizations like the Society of Professional Journalists that issue codes of ethics might consider “rating” outlets based upon their observance of those ethical standards.

But as long as individuals can search for and locate “facts” they find congenial, Americans will continue to inhabit alternate realities. I just don’t have an answer to “what do we do?”

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They’re Coming For Those Subversive Librarians…

I regularly read Juanita Jean, The World’s Most Dangerous Beauty Shop, to keep up with the governmental insanities we’ve come to expect in the Lone Star State and elsewhere. A recent post reported that a Texas county has joined the battle against those dangerous librarians who are threating…something or other.

Poor Llano County. Some federal judge has just ordered the county to return twelve (yes, count ’em, 12) children’s books to their public library shelves. It seems that the books offended the sensibilities of some adults who object to the racial and LGBT+ issues that are raised in them.

So rather than complying with the judge’s order, Llano County Commissioners are considering an old and accepted recourse: the equivalent of filling in the swimming pool.

Rather than bend to the Feds, the Llano County Commission is studying on nose-thumbing (and nose-cutting/face-spiteing) by closing all of their county libraries.

It’s a really great solution, see. No one can blame them for depriving their children of learning about racism and gender issues if no one in the county can learn about anything at all.

The Commisioners later backed down in the face of ferocious public pushback.

Texas isn’t alone. Republicans all over the country are moving against these purveyors of books with language or ideas that the GOP finds unacceptable. In Missouri, House Republicans recently voted to defund all of the state’s public libraries.  The Republican chair of the budget committee was quoted as saying  that cutting the aid was retaliation for an ACLU lawsuit to overturn a new state law banning sexually explicit material in school libraries.

Apparently,  books and libraries are  “woke.”

Librarians are reeling from the onslaught.In one instance reported by the Guardian, library personnel who had planned to launch a bookmobile in a bus that would visit various sites across town, including three schools, abandoned that plan when a law criminalizing anybody “who makes visually explicit materials available at a school” went into effect. They decided to keep the bookmobile away from schools, noting that violators of the new, nebulously worded law would face up to one year in jail and a fine of up to $2,000. As one of the librarians explained, “We are unsure on what someone can interpret as sexually explicit.”

The quotation reminded me of a passage in Nadine Strossin’s 1996 book, Defending Pornography. Since “porn” is in the eye of the beholder,  Strossin wrote “If it turns you on, it’s pornography. If it turns me on, it’s erotica.”

Throwing around and misusing vague labels, of course, is what those who have appropriated and misused the label “conservatives” love to do.

Conservative parent groups that formed to oppose masks during the pandemic, only to pivot to the fight against “critical race theory”, have now begun to focus on scrutinizing books, often by and about queer and Black people, and lobbying for their removal from library shelves. Politicians have hopped on the bandwagon, drafting legislation to supposedly protect children against indoctrination and predation, calling out books by name and making it impossible for the people who run schools and libraries to do their jobs. Fringe activists and government officials are taking to social media, holding meet ups, and riling up their bases with reports of indoctrination, propaganda and the supposedly pornographic materials that lurk on the bookshelves of public institutions.

The culture warriors out to terrorize Marian the Librarian are seeing considerable success. In an Urban Library Trauma study conducted in 2022, more than two-thirds of respondents reported encountering violent or aggressive behavior from patrons at their library.

Conservative parent groups such as Moms for Liberty, No Left Turn in Education and Parents Defending Education aren’t the only ones invested in the fight against books by Black and LGBTQ+ authors. Rightwing extremist groups have also adopted the cause. Proud Boys have taken to storming into Drag Queen Story Hour events, for instance, causing serious fear for patrons and librarians.

Lest we give these censors the benefit of the doubt, thinking they are identifying mostly trashy books, it’s instructive to consult the AIA’s annual list of the most frequently challenged books. Among others, recent lists include Harper Lee’s To Kill a Mockingbird, John Steinbeck’s Of Mice and Men, and Toni Morrison’s The Bluest Eye.

The list as a whole is revealing: challenges are overwhelmingly aimed at books by or about LGBTQ+ people, and books critical of racism. According to Google, the most censored books of all times are 1984, The Adventures of Huckleberry Finn, The Catcher in the Rye, The Color Purple,The Great Gatsby, I Know Why the Caged Bird Sings and
Lord of the Flies.

Twentieth -century political philosopher Alexander Mieklejohn said it best: People afraid of an idea–any idea–are unfit for self-government. 

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The Challenges Of Modern Life

The Supreme Court’s docket this year has two cases that will require the Court to confront a thorny challenge of modern life–to adapt (or not) to the novel realities of today’s communication technologies.

Given the fact that at least five of the Justices cling to the fantasy that they are living in the 1800s, I’m not holding my breath.

The cases I’m referencing are two that challenge Section 230, social media’s “safe space.”

As Time Magazine explained on February 19th,

The future of the federal law that protects online platforms from liability for content uploaded on their site is up in the air as the Supreme Court is set to hear two cases that could change the internet this week.

The first case, Gonzalez v. Google, which is set to be heard on Tuesday, argues that YouTube’s algorithm helped ISIS post videos and recruit members —making online platforms directly and secondarily liable for the 2015 Paris attacks that killed 130 people, including 23-year-old American college student Nohemi Gonzalez. Gonzalez’s parents and other deceased victims’ families are seeking damages related to the Anti-Terrorism Act.

Oral arguments for Twitter v. Taamneh—a case that makes similar arguments against Google, Twitter, and Facebook—centers around another ISIS terrorist attack that killed 29 people in Istanbul, Turkey, will be heard on Wednesday.

The cases will decide whether online platforms can be held liable for the targeted advertisements or algorithmic content spread on their platforms.

Re-read that last sentence, because it accurately reports the question the Court must address. Much of the media coverage of these cases misstates that question. These cases  are not about determining whether the platforms can be held responsible for posts by the individuals who upload them. The issue is whether they can be held responsible for the algorithms that promote those posts–algorithms that the platforms themselves developed.

Section 230, which passed in 1996, is a part of the Communications Decency Act.

The law explicitly states, “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,” meaning online platforms are not responsible for the content a user may post.

Google argues that websites like YouTube cannot be held liable as the “publisher or speaker” of the content users created, because Google does not have the capacity to screen “all third-party content for illegal or tortious materia.l” The company also argues that “the threat of liability could prompt sweeping restrictions on online activity.”

It’s one thing to insulate tech platforms from liability for what users post–it’s another to allow them free reign to select and/or promote certain content–which is what their algorithms do. In recognition of that distinction, in 2021, Senators Amy Klobuchar and Ben Ray Lujan introduced a bill that would remove tech companies’ immunity from lawsuits if their algorithms promoted health misinformation.

As a tech journalist wrote in a NYT opinion essay,

The law, created when the number of websites could be counted in the thousands, was designed to protect early internet companies from libel lawsuits when their users inevitably slandered one another on online bulletin boards and chat rooms. But since then, as the technology evolved to billions of websites and services that are essential to our daily lives, courts and corporations have expanded it into an all-purpose legal shield that has acted similarly to the qualified immunity doctrine that often protects policeofficers from liability even for violence and killing.

As a journalist who has been covering the harms inflicted by technology for decades, I have watched how tech companies wield Section 230 to protect themselves against a wide array of allegations, including facilitating deadly drug sales, sexual harassment, illegal arms sales and human trafficking — behavior that they would have likely been held liable for in an offline context….

There is a way to keep internet content freewheeling while revoking tech’s get-out-of-jail-free card: drawing a distinction between speech and conduct.

In other words, continue to offer tech platforms immunity for the defamation cases that Congress had in mind when Section 230 passed, but impose liability for illegal conduct that their own technology enables and/or promotes. (For example, the author confirmed that advertisers could easily use Facebook’s ad targeting algorithms to violate the Fair Housing Act.)

Arguably, the creation of an algorithm is an action–not the expression or communication of an opinion or idea. When that algorithm demonstrably encourages and/or facilitates illegal behavior, its creator ought to be held liable.

It’s like that TV auto ad that proclaims “this isn’t your father’s Oldsmobile.” The Internet isn’t your mother’s newspaper, either. Some significant challenges come along with the multiple benefits of modernity– how to protect free speech without encouraging the barbarians at the gate is one of them.

 

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Speech Versus Action

A recent report on an upcoming Supreme Court case from the New Republic made me think–definitely not for the first time–about the widespread misconceptions around the First Amendment.

Most of the people who read this blog are aware of many of those misconceptions. Probably the most annoying is the most basic–it constantly amazes me (okay, irritates the heck out of me) how many Americans don’t know that the First Amendment, like the rest of the  Bill of Rights, protects only against government action.

I still remember a call I got when I was with Indiana’s ACLU; the caller had applied for a position with White Castle, and had been told that his extensive tattoos were incompatible with their customer service standards. He demanded we sue White Castle for infringing his Free Speech rights. I had to explain that–had the City Council passed an ordinance against tattoos, that would have violated his First Amendment rights, but White Castle is private–and has its own First Amendment right to determine the manner of its own communication.

The case described in the linked article isn’t that clear-cut. It  involves an often-contested “gray area.”

The Supreme Court will hear Counterman v. Colorado in April to decide whether prosecutors must prove that a defendant meant to threaten someone with harm, or if they can opt for the lower threshold of whether a reasonable person might interpret a defendant’s actions or statements as a threat. Where the high court ultimately comes down on this distinction could be consequential in an age when it’s easier than ever for Americans to threaten not just each other, but also election workers, FBI agents, members of Congress, and even Supreme Court justices. How far does the First Amendment go to protect them?

In my classes, I took a rather unorthodox approach to this question, and a number of similar issues. While you won’t find my distinction in legal treatises, it seemed to help students understand the purpose–and limits– of the Free Speech clause. The fundamental distinction I drew was between speech (defined as communication of a message) and action.

The distinction doesn’t rely on whether there was verbal communication.

If I tell you that this cubic zirconium ring I’m selling is really a diamond, and charge you accordingly, I have engaged in fraud–a behavior. The First Amendment won’t protect me.

If I text and telephone you every hour and call you names, that’s harassment–a behavior. The First Amendment won’t protect me.

If I burn an American flag, I am sending a message (we know it’s a message, because  most Americans understand it and find it offensive). That message is protected by the First Amendment.

The problem for law enforcement arises when it is unclear whether we’re dealing with behavior–a genuine threat–or the expression of an opinion. (As lawyers like to say, it’s a “fact-sensitive” inquiry.) Social media trolling has vastly complicated this determination.

At the heart of this case is a campaign of harassment that seems all too familiar. The plaintiff, Billy Counterman, used multiple Facebook accounts to send hostile messages to an unidentified local musician in Colorado. Among the numerous messages that Counterman sent her were ones that read, especially in the context of the years-long barrage, as threats. “Fuck off permanently,” Counterman said in one of the messages. “You’re not being good for human relations,” read another. “Die. Don’t need you.” The target, who never responded to him and blocked him multiple times, ultimately contacted Colorado police, who charged Counterman for violating the state’s anti-stalking statutes.

Colorado law defines the offense to describe anyone who “repeatedly follows, approaches, contacts, places under surveillance, or makes any form of communication with another person … in a manner that would cause a reasonable person to suffer serious emotional distress and does cause that person … to suffer serious emotional distress.” Notably, under the rulings of Colorado courts, prosecutors aren’t required to prove that the defendant intended to threaten a person. They instead must only show that a reasonable person would have taken the statements as threats, which is a much easier threshold to clear at trial.

In the lower courts, the troll was handed a sentence of four years under the state’s anti-stalking statute.

This is one of those “hard cases” that –as the saying goes– sometimes make bad law. Four years seems pretty excessive for being an online asshole; on the other hand, such trolling far too frequently becomes a “heckler’s veto”-defined as behavior that allows  people who disagrees with a speaker’s message to shut that message down.

It remains to be seen how the Court will treat online harassment, but it sure seems like it falls on the “behavior” side of my explanatory line…..

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