Category Archives: Free Speech

What Can We Do About Fox?

I subscribe to a newsletter from Tom Nichols, a non-crazy conservative who writes for the Atlantic, among other outlets. Nichols recently addressed a problem that pretty much everyone who isn’t crazy recognizes: Fox “News.”

Nichols taught at the Naval War College for 25 years; he worked closely with many American military officers, and he has become increasingly worried about the danger of extremism in the ranks–a situation made worse, in his view, by the fact that Fox is the “default channel in so many military installations.

The overlap between Fox and even more-extreme outlets such as Newsmax and One America News Network, a slew of right-wing internet sites, and talk radio is part of a closed information ecosystem that affects the military no less than it does American society at large. Many years ago, I defended the emergence of Fox as an antidote to the politically homogeneous center-left tilt of the established American media. (Please spare me too much caviling here about media bias back in the Good Old Days; it was less of a menace than conservatives depicted it, but more of a reality than liberals were sometimes willing to admit.)

But things change: Fox is no longer an additional source of news and opinion. It is, instead, a steady stream of conspiracy theories and rage-bait, especially in prime time.

As Nichols explains, there is a significant and important difference between different views held by people who have reached opposing conclusions about various issues and people whose opinions aren’t derived from anything that might remotely be considered evidence or fact.

I am increasingly concerned, however, that what comes from Fox and similar outlets these days is not a “view” so much as an attack on reality itself. As Russian dissident Garry Kasparov has noted, modern propaganda isn’t designed “only to misinform or push an agenda”; it is meant to “exhaust your critical thinking, to annihilate truth,” a good description of how Fox and similar outlets now present their programming… …To watch Fox for an extended amount of time is to go on an excursion into an alternate reality of paranoia and fury, to plunge into a hurricane of anger that shapes views by defying logic and evidence.

I agree. So–I repeat the question with which I’ve been approaching most of the issues of our day: what can/should we do?

Nichols’ response echoes generations of First Amendment case law: the answer to bad speech is more and better speech. More openness, not censorship. Nichols insists that the  answer to an authoritarian challenge cannot be more authoritarianism. (He also dismisses the predictable calls to bring back the Fairness Doctrine–calls from people who clearly don’t understand what that doctrine did and didn’t do. The Fairness Doctrine was a  1949 rule, finally discarded in 1987, that applied ONLY to broadcast channels owned by the government. Ownership allowed government to attach conditions to the lease of those airwaves–attempting to apply it to cable or other privately owned means of communication would violate the First Amendment.)

I used to share with students something I called my “refrigerator theory of Free Speech”–like the forgotten leftover in the back of your refrigerator now covered in green fuzz, suppressed ideas will eventually smell the place up. Put those same leftovers in bright sunlight, and their stench is baked out.  The marketplace of ideas can’t function properly unless there’s verbal sunlight, and freedom of speech requires that We the People participate in that marketplace and produce that sunlight–in this case, more and better speech.

As Nichols says,

No matter how much you don’t like it, you cannot ban, censor, or silence Fox. It’s that simple. You can choose not to watch it and encourage others to do likewise—which can have more impact than you might think. Another possibility is for businesses and institutions to choose neutral programming in common areas such as sports or weather, as military exchanges (stores for military personnel) did in 2019.

He is absolutely right–and that’s what’s so incredibly frustrating. Bottom line, rescuing our democracy necessarily depends upon the efforts of millions of reasonable Americans to combat the hatreds, fears and racial grievances that motivate the members of today’s GOP cult and provide the content of its propaganda arms.

Ultimately, America’s survival as a democratic republic will come down to whether good people–including genuine conservatives–outnumber, outvote and occasionally out-yell the White Nationalists, theocrats and other angry, frightened people who are the target audience of outlets like Fox “News.”

There’s no guarantee those good people will prevail…..and that’s what is so terrifying….

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That Misunderstood First Amendment

I know that my constant yammering about the importance of civic education can seem pretty tiresome –especially in the abstract–so I was initially gratified to read a Brookings Institution article focusing on a very tangible example.

Emerging research confirms the damage being done by misinformation being disseminated by social media, and that research has led to a sometimes acrimonious debate over what can be done to ameliorate the problem. One especially troubling argument has been over content that isn’t, as the article recognizes, “per se illegal” but nevertheless likely to cause significant. harm.

Many on the left insist digital platforms haven’t done enough to combat hate speech, misinformation, and other potentially harmful material, while many on the right argue that platforms are doing far too much—to the point where “Big Tech” is censoring legitimate speech and effectively infringing on Americans’ fundamental rights.

There is considerable pressure on policymakers to pass laws addressing the ways in which social media platforms operate–and especially how those platforms moderate incendiary posts. As the article notes,  the electorate’s incorrect beliefs about the First Amendment add to “the political and economic challenges of building better online speech governance.”

What far too many Americans don’t understand about freedom of speech–and for that matter, not only the First Amendment but the entire Bill of Rights–is that the liberties being protected are freedom from government action. If the government isn’t involved, neither is the Constitution.

I still remember a telephone call I received when I directed Indiana’s ACLU. A young man wanted the ACLU to sue White Castle, which had refused to hire him because they found the tattoos covering him “unappetizing.” He was sure they couldn’t do that, because he had a First Amendment right to express himself. I had to explain to him that White Castle also had a First Amendment right to control its messages. Had the legislature or City-County Council forbid citizens to communicate via tattooing, that would be government censorship, and would violate the First Amendment.

That young man’s belief that the right to free speech is somehow a free-floating right against anyone trying to restrict his communication is a widespread and pernicious misunderstanding, and it complicates discussion of the available approaches to content moderation on social media platforms. Facebook, Twitter and the rest are, like newspaper and magazine publishers, private entities–like White Castle, they have their own speech rights. As the author of the Brookings article writes,

Nonetheless, many Americans erroneously believe that the content-moderation decisions of digital platforms violate ordinary people’s constitutionally guaranteed speech rights. With policymakers at all levels of government working to address a diverse set of harms associated with platforms, the electorate’s mistaken beliefs about the First Amendment could add to the political and economic challenges of building better online speech governance.

The author conducted research into three related questions: How common is this inaccurate belief? Does it correlate with lower support for content moderation? And if it does, does education about the actual scope of First Amendment speech protection increase support for platforms to engage in content moderation?

The results of that research were, as academics like to say, “mixed,” especially for proponents of more and better civic education.

Fifty-nine percent of participants answered the Constitutional question incorrectly, and were less likely to support decisions by platforms to ban particular users. As the author noted, misunderstanding of the First Amendment was both very common and linked to lower support for content moderation. Theoretically, then, educating about the First Amendment should increase support for content moderation.

However, it turned out that such training actually lowered support for content moderation-(interestingly, that  decrease in support was “linked to Republican identity.”)

Why might that be? The author speculated that respondents might reduce their support for content moderation once they realized that there is less legal recourse than expected when they find such moderation uncongenial to their political preferences.

In other words, it is reasonable to be more skeptical of private decisions about content moderation once one becomes aware that the legal protections for online speech rights are less than one had previously assumed. …

 Republican politicians and the American public alike express the belief that platform moderation practices favor liberal messaging, despite strong empirical evidence to the contrary. Many Americans likely hold such views at least in part due to strategically misleading claims by prominent politicians and media figures, a particularly worrying form of misinformation. Any effort to improve popular understandings of the First Amendment will therefore need to build on related strategies for countering widespread political misinformation.

Unfortunately, when Americans inhabit alternative realities, even civic education runs into a wall….

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Free Speech For Those Who Can Afford It

When John Roberts was elevated to the Supreme Court, my concerns weren’t focused on his likely conservative/ideological rigidity. (That was —and remains–my concern with subsequent Justices.) My “reading” of Justice Roberts was that he would instinctively side with power and authority–that he was likely to be pro-government and pro-business elite in situations calling for more searching inquiry into the equities involved.

I am not happy to report that my concerns were well-founded.

Roberts is solicitous when it comes to the rights of American elites. The defense of corporate “free speech” rights in Citizens United required an airy disregard of the foreseeable consequences of that decision for the electoral system. The opinion simply ignored the issue of disproportion, disingenuously equating the free speech rights of everyday citizens with the free speech rights of those who have massive resources at their disposal.

The problem began when the Court equated money with speech, and in Citizens United and several subsequent cases, it has steadily chipped away at McCain-Feingold restrictions meant to level the political playing field.

A few days ago, Len Farber reminded us of the quote from Anatole France that is perfectly applicable here: “The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.”

The most recent example of this sanctimonious and dishonest approach to the constitutional right of free speech came in a case brought by the odious Ted Cruz.

The case challenged a law limiting the amount of campaign funds that can be used to repay personal campaign loans to $250,000.  In a decision further weakening campaign finance regulations, the court held that a federal cap on candidates’ use of political contributions after an election to recoup personal loans made to their campaign was unconstitutional.

Roberts wrote the majority opinion, protecting the “free speech” rights of candidates with the resources to lend their campaigns enormous sums. Justice Elena Kagan cut through Roberts’ “free speech” pose to zero in on the real issue.

In her dissenting opinion, Kagan criticized the majority for ruling against a law that she said was meant to combat “a special danger of corruption” aimed at “political contributions that will line a candidate’s own pockets.”

In striking down the law today,” she wrote, “the Court greenlights all the sordid bargains Congress thought right to stop. . . . In allowing those payments to go forward unrestrained, today’s decision can only bring this country’s political system into further disrepute.”

Indeed, she explained, “Repaying a candidate’s loan after he has won election cannot serve the usual purposes of a contribution: The money comes too late to aid in any of his campaign activities. All the money does is enrich the candidate personally at a time when he can return the favor — by a vote, a contract, an appointment. It takes no political genius to see the heightened risk of corruption — the danger of ‘I’ll make you richer and you’ll make me richer’ arrangements between donors and officeholders.”

Even if we give Roberts the benefit of the doubt–if we assume that, from his lofty perch, he really doesn’t understand how the political “real world” works–it’s difficult to understand this decision. (Former Congressman Lee Hamilton used to say that the Supreme Court would benefit greatly from fewer Ivy League graduates and more Justices who had run for county sheriff–people who understood the gritty realities of political life.)

Cruz argued that “by substantially increasing the risk that any candidate loan will never be fully repaid,” the law forces a candidate to think twice before making those loans in the first place. The underlying assumption of his argument, of course, is that “serious”candidates for office are wealthy enough to self-finance their campaigns. This decision allows those wealthy candidates to do so without risking an actual loss of some portion of their funds, because they can now recoup the entire amount from post-election campaign fundraising.

As the Deputy Solicitor argued, the law “targets a practice that has significant corruptive potential.”

“A post-election contributor generally knows which candidate has won the election, and post-election contributions do not further the usual purposes of donating to electoral campaigns,” he said.

Campaign finance watchdogs supported the cap, arguing it is necessary to block undue influence by special interests, particularly because the fundraising would occur once the candidate has become a sitting member of Congress.

As one election law expert commented, “the Court has shown itself not to care very much about the danger of corruption, seeing protecting the First Amendment rights of big donors as more important.”

As an Atlantic  newsletter concluded: campaign-finance regulation in the U.S. has all but vanished.

This decision is more evidence–as if we needed it– of a Court that has lost its way.

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Keeping Americans “Mad As Hell” 24/7

I don’t regularly read Mother Jones, so I had missed a profoundly important analysis by Kevin Drum that ran in that publication last October. I’m indebted to Gerald Stinson for sharing it.

Drum asks: why are Americans so angry? He notes that the anger is almost entirely political (most of us aren’t mad at our families, friends, plumbers)…

Research suggests that our “national temper tantrum” began in 2000, and Drum methodically investigates–and discards– the usual explanations for that vitriol. He demonstrates that Americans are no more addicted to conspiracy theories than we ever were, for example. (Hofstadter wrote about American paranoia back in 1964, after all.)

He also discounts the role of social media, while acknowledging that–like all new forms of communication–it has had a political effect. When we examine how social media affects what we learn about politics, he writes:

This obviously depends on how much political news we get from social media in the first place, which turns out to be surprisingly little—at least when it comes to actual articles or broadcast segments, not hot takes from your Uncle Bob.

And then there’s that pesky timeline: social media can’t explain something that started 20 years ago.

Drum also makes short shrift of the argument that we’re all mad because everything has gotten worse. It hasn’t, and he shares data showing that Americans’ opinions on virtually every aspect of our communal lives has remained constant–albeit with two very troubling exceptions. One is the rise of White grievance:

White respondents believe that anti-white bias has been steadily increasing. And the American National Election Studies, among other polls, have showed this belief in so-called reverse racism is overwhelmingly driven by white Republicans. This trend starts before 2000, but it’s growing and is an obvious candidate to explain rising white anger—as long as there’s something around to keep it front and center in the minds of white people.

The other is a precipitous collapse of trust in government.

If the “usual suspects” don’t explain our current fears, hatreds and political divisions, what does? Drum’s conclusion: Fox News.

When it debuted in 1996, Fox News was an afterthought in Republican politics. But after switching to a more hardline conservatism in the late ’90s it quickly attracted viewership from more than a third of all Republicans by the early 2000s. And as anyone who’s watched Fox knows, its fundamental message is rage at what liberals are doing to our country. Over the years the specific message has changed with the times—from terrorism to open borders to Benghazi to Christian cake bakers to critical race theory—but it’s always about what liberal politicians are doing to cripple America, usually with a large dose of thinly veiled racism to give it emotional heft.

As Drum notes, rage toward Democrats means more votes for Republicans. Creating that rage is what Fox does.

As far back as 2007 researchers learned that the mere presence of Fox News on a cable system increased Republican vote share by nearly 1 percent. A more recent study estimates that a minuscule 150 seconds per week of watching Fox News can increase the Republican vote share. In a study of real-life impact, researchers found that this means the mere existence of Fox News on a cable system induced somewhere between 3 and 8 percent of non-Republicans to vote for the Republican Party in the 2000 presidential election. A more recent study estimates that Fox News produced a Republican increase of 3.59 points in the 2004 share of the two-party presidential vote and 6.34 points in 2008. That’s impact.

As we saw earlier, the past couple of decades have seen a steady increase in the belief among white people—particularly Republicans—that anti-white bias is a serious problem. Fox News has stoked this fear almost since the beginning, culminating this year in Tucker’s full-throated embrace of the white supremacist “replacement theory” and the seemingly 24/7 campaign against critical race theory and its alleged impact on white schoolkids. This is certainly not all that Fox News does, but it’s a big part of its pitch, and it fits hand in glove with Trump’s appeal to white racism…

Thanks to Fox News, conservative trust in government is so low that Republican partisans can easily believe Democrats have cheated on a mass scale, and white evangelicals in particular are willing to fight with the spirit of someone literally facing Armageddon.

You really need to read the whole, lengthy analysis.

Drum concludes “It is Fox News that has torched the American political system over the past two decades, and it is Fox News that we have to continue to fight.”

But he doesn’t tell us how.

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The Story Of Our Age

Jeffrey Goldberg is the editor of the Atlantic, one of the more credible and informative publications I read, and he recently transmitted an email to subscribers titled “Notes from the Editor-in-Chief.” I am going to take the liberty of quoting large portions of that message, because I entirely agree with him about the nature and extent of the danger we face.

Last week, a Michigan congresswoman whose existence had not yet entered the rest of the country’s consciousness credited Donald Trump with having “caught Osama bin Laden,” among other terrorists. It is difficult to forget that night in 2011 when Barack Obama told the world that, on his orders, a team of Navy commandos had killed the al-Qaeda leader. But Representative Lisa McClain, a first-term member of Congress, showed that, with effort, and with a desire to feed Trump’s delusions and maintain her standing among his supporters, anything is possible.

In ordinary times, McClain’s claim would have been mocked and then forgotten. But because these are not ordinary times—these are times in which citizens of the same country live in entirely different information realities—I put her assertion about bin Laden on a kind of watch list. In six months, I worry, we may learn that a provably false claim made by a single unserious congressional backbencher has spread into MAGA America, a place where Barack Obama is believed to be a Kenyan-born Muslim and Donald Trump is thought to be the victim of a coup.

Disinformation is the story of our age. We see it at work in Russia, whose citizens have been led to believe the lies that Ukraine is an aggressor nation and that the Russian army is winning a war against modern-day Nazis. We see it at work in Europe and the Middle East, where conspiracies about hidden hands and occult forces are adopted by those who, in the words of the historian Walter Russell Mead, lack the ability to “see the world clearly and discern cause and effect relations in complex social settings.” We see it weaponized by authoritarians around the globe, for whom democracy, accountability, and transparency pose mortal threats. And we see it, of course, in our own country, in which tens of millions of voters believe that Joe Biden is an illegitimate president because the man he beat in 2020 specializes in sabotaging reality for personal and political gain. This mass delusion has enormous consequences for the future of democracy. As my colleague Yoni Appelbaum has noted, “Democracy depends on the consent of the losers.” Sophisticated, richly funded, technology-enabled disinformation campaigns are providing losers with other options.

The Atlantic has joined with the Institute of Politics at the University of Chicago, and the two entities staged a conference focusing upon disinformation of all sorts. (The conference is available online.) The Institute of Politics was founded by David Axelrod, who has expressed his opinion that the “future of this country—and of our democratic allies around the world—depends on the ability and willingness of citizens to discern truth from falsehood.”

Goldberg was forthright in admitting to the nature of the challenge disinformation poses for “big-tent” magazines like the Atlantic.  He reiterated his belief that citizens of democracies require  a wide variety of views and opinions, and insisted that

We strive for nonpartisanship at The Atlantic, and we aim to publish independent thinkers and a wide variety of viewpoints. But this most recent period in American history has presented what might be called “both-sides journalism” with serious challenges—challenges that have prevented this magazine from publishing many pro-Trump articles. (After all, our articles must pass through a rigorous fact-checking process.)

Long-term, the emergence of our citizens from the Tower of Babel we currently inhabit will require a co-ordinated effort. My own repeated calls for more and better civics education–leading to greater levels of civic literacy– obviously point to an important part of that effort, but civics education alone cannot address the economic and psychological insecurities that make so many Americans receptive to the lies and hatreds being promoted by would-be autocrats and their enablers.

I don’t know what it would take–what policies could impose at least a minimum of coherence and integrity to the Wild West that is our current information environment without sacrificing the First Amendment– but as Goldberg  and Axelrod clearly understand, figuring that out is obviously job number one.

I’m on vacation without reliable Internet access, but when I get home, I intend to click through and watch that conference….

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