Free Speech

Free Speech And Online Propaganda

The recent revelations about Facebook have crystalized a growing–and perhaps insoluble– problem for free speech purists like yours truly.

I have always been convinced by the arguments first advanced in John Stuart Mill’s On Liberty and the considerable scholarship supporting the basic philosophy underlying the First Amendment: yes, some ideas are dangerous, but allowing government to determine which ideas can be expressed would be far more dangerous.

I still believe that to be true when it comes to the exchange of ideas in what we like to call the “marketplace of ideas”–everything from private conversations, to public and/or political pronouncements, to the publication of books, pamphlets, newspapers and the like–even to broadcast “news.”

But surely we are not without tools to regulate social media behemoths like Facebook–especially in the face of overwhelming evidence that its professed devotion to “free speech” is merely a smokescreen for the platform’s real devotion–to a business plan that monetizes anger and hate.

We currently occupy a legal free-speech landscape that I am finding increasingly uncomfortable: Citizens United and its ilk basically endorsed a theory of “free” speech that gave rich folks megaphones with which to drown out ordinary participants in that speech marketplace. Fox News and its clones–business enterprises that identified an “underserved market” of angry reactionaries–were already protected under traditional free speech doctrine. (My students would sometimes ask why outright lying couldn’t be banned, and I would respond by asking them how courts would distinguish between lying and wrongheadedness, and to consider just how chilling lawsuits for “lying” might be…They usually got the point.)

Americans were already dealing–none too successfully– with politically-motivated distortions of our information environment before the advent of the Internet. Now we are facing what is truly an unprecedented challenge from a platform used by billions of people around the globe–a platform with an incredibly destructive business model. In brief, Facebook makes more money when users are more “engaged”–when we stay on the platform for longer periods of time. And that engagement is prompted by negative emotions–anger and hatred.

There is no historical precedent for the sheer scale of the damage being done. Yes, we have had popular books and magazines, propaganda films and the like in the past, and yes, they’ve been influential. Many people read or viewed them. But nothing in the past has been remotely as powerful as the (largely unseen and unrecognized) algorithms employed by Facebook–algorithms that aren’t even pushing a particular viewpoint, but simply stirring mankind’s emotional pot and setting tribe against tribe.

The question is: what do we do? (A further question is: have our political structures deteriorated to a point where government cannot do anything about anything…but I leave consideration of that morose possibility for another day.)

The Brookings Institution recently summarized legislative efforts to amend Section 230–the provision of communication law that provides platforms like Facebook with immunity for what users post. Whatever the merits or dangers of those proposals, none of them would seem to address the elephant in the room, which is the basic business model built into the algorithms employed. So long as the priority is engagement, and so long as engagement requires a degree of rage (unlikely with pictures of adorable babies and cute kittens), Facebook and other social media sites operating on the same business plan will continue to strengthen divisions and atomize communities.

The men who crafted America’s constitution were intent on preventing any one part of the new government from amassing too much power–hence separation of powers and federalism. They could not have imagined a time when private enterprises had the ability to exercise more power than government, but that is the time we occupy.

If government should be prohibited from using its power to censor or mandate or otherwise control expression, shouldn’t Facebook be restrained from–in effect–preferring and amplifying intemperate speech?

I think the answer is yes, but I don’t have a clue how we do that while avoiding unanticipated negative consequences.

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A Sword Or A Shield?

Religion has been in the news a lot lately, which probably shouldn’t surprise us. When the times we live in are tumultuous–and I certainly think this era qualifies–people cling to and defend their “eternal verities.”

Of course, that raises an interesting question: what, exactly, qualifies as religion? I think the “eternal verity” descriptor gets at something (excuse the phrase) fundamental: an unshakable belief system based largely on faith in matters that are not susceptible to scientific verification. Political ideologies–including tribal bigotries–fall within that definition.

Unshakable and unprovable beliefs, of course, are the source of a great deal of mischief–and often, tragedy. I’ve posted previously about the tensions within evangelical circles, about some Christians’ insistence that Muslims and Jews cannot be “real Americans,” about the ongoing religious debates over reproductive rights, and (more frequently) about the concerns of America’s founders that led to the religion clauses of the First Amendment.

With respect to those concerns, an observation by Barney Frank during a recent interview comes to mind.(I’ve loved Barney Frank ever since he held a Town Hall during the fight over the Affordable Care Act, and responded to a looney-tune woman comparing Obama to Hitler and the ACA to Nazism by asking her “On what planet do you spend most of your time?”)

In the interview, Frank was asked the following question: “Some on the left have expressed concern that the 6-3 conservative supermajority on the Supreme Court could erode LGBTQ rights in the name of religious liberty. Are you concerned at all about this?”

Frank responded with his trademark rhetorical acuity. “Yes I am. They’re not going to undo marriage. But I do worry about entities that get public tax money to perform services—they should not in my judgment be allowed to exclude people because of some religious disapproval of their sexual practices. It’s the sword versus the shield. The shield, in legal terms, is a doctrine that prevents other people from intruding on you. A sword is used to intrude on others. And while religious liberty should be a shield, there are concerns that people might make it a sword.”

That verbal picture–a sword or a shield–is an excellent way to approach the First Amendment, and not simply the religion clauses.

The Amendment was intended to protect an individual’s right to believe pretty much anything (not necessarily to act on those beliefs, however) and to try to convince others to believe those things too. It was also intended to prevent government from getting involved by putting a thumb on the scale, so to speak, or imposing the beliefs of some Americans on others. It was–in Frank’s felicitous phrase–intended to provide individual citizens with a shield and to prevent majorities from using government as a sword.

The problem is, we have millions of people who have “religion” in the sense I defined it above. We have cults, traditional religious affiliations, conspiracy theories, political ideologies of both the Left and Right…in short, we have veritable armies of people convinced of the superior righteousness of their own belief systems. If you need evidence, examine what has been called “cancel culture,” the effort to ostracize people who hold opposing views–not to enter into debate with them, but to shut them down, eject them from the public conversation. (That effort is most definitely not limited to the Left, despite Rightwing efforts to claim otherwise.)

For numerous reasons, the law cannot classify all these systems as religions for purposes of the First Amendment. That practical reality means that the label “religious” does confer a considerable advantage on beliefs that define themselves in that more limited fashion.

When it comes to traditional religion, Pew recently shared a bit of positive news about the sword and shield finding a significant majority of Americans want government to enforce separation of Church and State. I wonder what a similar study would find about our current commitment to Free Speech–especially in light of recent revelations about Facebook and other social media platforms.

What’s that Chinese curse? “May you live in interesting times…”

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Laugh? Or Cry??

To pick up a newspaper today is to enter wacko world, where right-wingers’ fears (those “Others” are voting! That means the election is rigged!!) and their obsessions with sex (it’s dirty! protect the children!) are bursting out all over.

I recently stumbled across this report from the Daily Beast, and you really need to read it to believe it. An essay from The Guardian by Arwa Mahdawi captured my reaction:

The latest absurd example of conservative cancel culture comes to us courtesy of Moms for Liberty, a rightwing advocacy group who are trying to dictate what books Tennessee public school kids can read. I don’t know if any of these moms own a dictionary, but they might want to look up the definition of “liberty”. And then they might want to change their name to Moms for Thought Control.

The moms have been very methodical: they’ve sent the Tennessee Department of Education a detailed spreadsheet outlining their complaints about the books being foisted on their children. It makes for unintentionally hilarious reading. A book about Galileo is “anti-church.” A book about seahorses contains too many details about the mating rituals of seahorses. A book about Native Americans is “divisive” and “paints white people in negative light.” A book about Ruby Bridges, the first Black child to integrate an all-white public elementary school, is “divisive.” (Racists love using the word “divisive”, have you noticed? How dare you bring up slavery and segregation! You’re being divisive!) A book about Greek mythology is a little too “graphic and scary”. A book about Martin Luther King contains “photographs of political violence”. The whole thing reads like the unhinged ravings of a book club from hell.

It’s hard not to laugh at this exercise of attempted “cancellation”–especially since one of the many accusations leveled at liberals is that it is the Left that has developed “cancellation culture.” But ultimately, it isn’t funny. It actually is representative of what passes for today’s right wing philosophy.

As Mahdawi points out, this attempts to dictate (okay, censor) the Tennessee curriculum is part of the Right’s frantic effort to rewrite American history. You can see that obsession in the sudden discovery of and opposition to Critical Race Theory (which none of its opponents can define. To them it just means anything that is less than complimentary about white people). Mahdawi notes that at least eight Republican states (including Tennessee) have introduced laws restricting how race can be taught in public schools this year and nearly 20 additional states have introduced or plan to introduce similar legislation

Far from being a kooky fringe group, Moms for Liberty are part of a very well-coordinated culture war. Whether it’s abortion or CRT, the playbook is always the same. The rightwing media whips up outrage; deliberately vague laws are passed off the back of that outrage; advocacy groups diligently weaponize these laws at a local level. “We are seeing what appear to be coordinated efforts to challenge books, not purely based on the content of the individual book, but based on the fact that they teach history from a particular viewpoint,” an executive from the National Coalition Against Censorship, told The Daily Beast. “We’re also seeing entire lists of books being challenged, as opposed to individual titles.”

So what’s the moral to this story? Essentially, it’s that you shouldn’t underestimate the right. It’s very easy to laugh at a bunch of rightwing moms clutching their pearls over sexy seahorses – but there’s nothing funny about the systemic, organised way in which conservatives are trying to rewrite history and restrict freedom of speech.

The real threat comes from the tendency of rational folks to dismiss these efforts–to chuckle, shake our heads and ignore it, because “it can’t happen here.” Depending upon your definition of “it,” it can happen here–as we learn more about the Trump effort to overturn the election, we learn how close that effort came and how much lasting damage it did to America’s democratic norms. We may not be quite ready to sew Hester Prynne’s “A” on women’s shirts, but we keep edging closer, and there are active movements to deny LGBTQ citizens a lot more than bakery products, among other efforts to return us to the 1950s. Or before.

These people may be nuts, but in the absence of a robust and determined protection of our rights, lunatics can be very effective.

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Read This Book

Last week, I finished reading Jonathan Rauch’s The Constitution of Knowledge. I highly recommend it.

The book is an extraordinarily readable primer on epistemology –how we humans know what we know, and a defense of the proposition that knowledge is a product of collective and institutional effort–what we might call the scientific method writ large. (As Rauch points out, knowledge is “a conversation, not a destination,” and falsification is an essential element in the development of knowledge.)

He begins with the thesis that the open society is defined by three social systems: economic, political, and epistemic, and that each of those systems handles social decision-making about resources, power, and truth. The book goes on to compare and contrast those social systems, and to connect today’s challenges to the long history of philosophical and scientific inquiries about the nature of reality, the differences between faith and fact, and the social and governmental importance of occupying the same “reality-based” community.

The book is also a stirring defense of free speech against assaults from both the right (censorship) and the left (cancel culture).

Rauch warns that the real danger in a culture where lying is ubiquitous isn’t simply misdirection; it is the undermining of our ability to distinguish between fact and falsehood. As others have noted, the methodology of censorship has changed; today, rather than efforts to simply suppress uncongenial ideas (virtually impossible in our digital age), the tactic is to “flood the information zone with shit”–to confuse, undermine and paralyze rather than brainwash.

In the digital age, Rauch shares a concern that regular readers of this blog will recognize as a preoccupation of mine–a concern that the marketplace of ideas is in danger of being supplanted by a marketplace of realities.

Perhaps the greatest virtue of the book is Rauch’s detailed explanation of why facts are–and must be– a social product.

Whether and where and how much of the time we think well thus depends not just on how biased we may be as individuals or even how we behave in unstructured groups; it also depends, crucially, on the design of the social environment in which we find ourselves. To phrase the point more bluntly: It’s the institutions, stupid.

As he says, our task is to create a” social environment which increases rightness and reduces wrongness.” Unlike our governmental constitution, the constitution of knowledge is unwritten, but no less important–it is a “social operating system” that aims to elicit co-operation and resolve differences on the “basis of rules rather than personal authority or tribal affiliation or brute force.” And he reminds us that information technology is very different from knowledge technology.

Information can be simply emitted, but knowledge, the product of a rich social interaction, must be achieved.

Rauch also reminds readers that all knowledge is necessarily provisional–that as we learn more, we revisit and refine what we “know” in light of new information and new knowledge, and that this inevitable impermanence can be very threatening to individuals who need bright lines and eternal truths.

Rauch concludes the discussion with advice on how the reality-based community can respond to and marginalize the trolls and virtue signalers and others who are using our new tools of communication to pollute the national discourse.

Speaking of that national discourse, I thought it was interesting to look at the ideological diversity of those who provided the inevitable jacket “blurbs” praising the book, because they represent a variety of (reality-based)political and social perspectives. Their range testifies to the objectivity of the content.

Bottom line, this is a truly important book, providing an essential overview of how humans know, how the “Constitution of Knowledge” overcomes individual errors and biases, allowing the collective “us” to distinguish between fact and fiction, and why that process is so essential to social construction and stability.

The foregoing description does a real disservice to the scope and richness of this book. You need to read it.

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“Cancel culture.” “Political correctness.” “Hate speech.” Americans have been arguing about free speech since passage of the Alien and Sedition Acts. Recently, there have even been reports of disagreement within that bastion of free-speech defense, the ACLU.

As we all know, no one is trying to shut up people with whom they agree. The First Amendment was designed, as Justice Holmes memorably put it, to “protect the idea we hate.” In an effort to explain why that insight is so important, I often shared with my students a personal experience from “back in the day”– early in my long-ago tenure as Executive Director of Indiana’s ACLU.

Members of the KKK had applied to use the steps of the Indiana Statehouse for a rally. Then-Governor Evan Bayh (who surely knew better) refused to allow it. The Statehouse steps had routinely been used by other organizations, and despite Bayh’s posturing, the law clearly forbid the government from allowing or disallowing such use based on the content of the message to be delivered.

So the Klan came to the ACLU.

At the time, the people who ended up representing the rights of these odious people included the Jewish Executive Director (me), the affiliate’s one secretary, who was Black, and a co-operating attorney, who was gay.

Each of us knew that if the Klan ever achieved power, we’d be among the first to be marginalized or even eliminated–so why on earth would we protect the organization’s right to spew its bigotry? Because we also knew that– in a system where government can pick and choose who has rights– no one really has rights. The government that can muzzle the KKK today can muzzle me tomorrow–and as we have (painfully) learned, we can’t assume that good people will always be in charge of that government.

As one ACLU leader put it, poison gas is a great weapon until the wind shifts.

As with so many other misunderstood elements of the Bill of Rights, the issue isn’t what you may say or do– it is who gets to decide what you say or do? And right now, at the same time state-level Republican legislators are accusing the left of “canceling” their messages and “censoring” Dr. Seuss, they are waging a determined war on protesters’ and educators’ right to say things with which they disagree.

As Michelle Goldberg recently reported,

In a number of states, Republicans have responded to last year’s racial justice uprising by cracking down on demonstrators. As The Times reported in April, during 2021 legislative sessions, lawmakers in 34 states have introduced 81 anti-protest bills. An Indiana bill would bar people convicted of unlawful assembly from state employment. A Minnesota proposal would prohibit people convicted of unlawful protesting from getting student loans, unemployment benefits or housing assistance. Florida passed a law protecting drivers from civil liability if they crash their cars into people protesting in the streets.

Meanwhile, the right-wing moral panic about critical race theory has led to a rash of statewide bills barring schools — including colleges and universities — from teaching what are often called “divisive concepts,” including the idea that the United States is fundamentally racist or sexist. Even where such laws haven’t been passed, the campaign has had a chilling effect; the Kansas Board of Regents recently asked state universities for a list of courses that include critical race theory.

As Goldberg says, there’s nothing new about the left growing weary of sticking up for the rights of reactionaries. Personally, I would find it really satisfying to shut down Faux News, or to tell the My Pillow Guy to go stuff a sock in it. The problem is, satisfying that urge won’t take us where we need to go. Goldberg’s last sentence is worth contemplating.

Maybe every generation has to learn for itself that censorship isn’t a shortcut to justice.

To which I would just add: and criticism of your position by people who aren’t using the power of government to shut you up isn’t censorship.

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