Category Archives: Free Speech

Fraud And Free Speech

A recent report from the Czech Republic made me think of Americans’ widespread misunderstandings about what constitutes the freedom of speech protected by the First Amendment.

The most widespread misunderstanding, of course, arises because too many Americans don’t realize that the Bill of Rights only limits actions by government. If Walmart refuses to carry your book, your private-sector boss forbids politicking on the job, or your racist Facebook diatribe causes people to unfriend you after characterizing you in unpleasant ways, those aren’t violations of the First Amendment. Those are examples of people exercising their free speech rights.

But about that Czech incident…

Prague Morning reported on the arrest of Jana Peterková. Peterkova became the first person to be convicted for spreading misinformation in the Czech Republic. According to court documents, she allegedly posted a false message claiming that several seniors died in a nursing home in Měšice after receiving COVID vaccinations.

Now, it is important to note that Peterkova posted a totally manufactured story. She wasn’t sharing an opinion, or weighing in on a disputed factual situation. She recounted a purportedly personal conversation with someone she identified as an employee of the nursing home in question, and she claimed that person had told her that “the ‘mainstream media’ were ‘silent’ after several elderly people died after receiving the Pfizer COVID-19 vaccine.”

However, the identified employee had not worked at the nursing home since May of 2020.

It is also important to acknowledge that the Czech Republic doesn’t have America’s First Amendment, although it has pretty robust protections for free speech. (Wikipedia says “Freedom of speech in the Czech Republic is guaranteed by the Czech Charter of Fundamental Rights and Basic Freedoms, which has the same legal standing as the Czech Constitution. It is the first freedom of the charter’s second division – political rights.”)

One of the conundrums of America’s free speech jurisprudence is locating the line between  speech–communication–and action. Government may not be able to censor my speech, but it definitely has the right to prohibit and punish a number of my possible actions.

And just as communication can occur through action–silent marches, ripping up draft cards, and burning a flag are all actions meant to send a message–wrongful or criminal behaviors can be accomplished via the spoken or written word.

If I call your telephone every fifteen minutes to berate you for something, that behavior is not protected by the First Amendment. It isn’t communication; it’s harassment–and government can punish harassment.

If I criticize you by publishing a book with manufactured accusations, I’ve committed libel. Government can prohibit libel and slander.

If I sell you a cubic zirconium for much more than it’s worth by convincing you it’s a diamond, I’m not exercising my right to free speech; I’m guilty of fraud. Government can punish fraud.

The problem in these situations isn’t that they’re protected speech; it’s evidentiary.

If a police officer overhears two people planning to rob a liquor store, he doesn’t need to wait until they’re at the store with weapons drawn to move against them–but he’d better be able to demonstrate to a court of law that he knew they were serious–that what he overheard was part of the illegal activity–that they weren’t just playing a game, or kidding around.

In the case from the Czech Republic, the evidence was evidently unambiguous. The information Peterkova transmitted was false and she clearly knew it was false, since she’d invented it.

Most of the propaganda being spewed in today’s U.S. is protected by the Free Speech Clause of the First Amendment. Opinions–no matter how nutty–are protected, and far too much of what passes for journalism in this country today, even in the most credible outlets,  is really the venting of opinions. Even though a number of Faux News pundits and their ilk likely know they are dealing in a manufactured reality, proving to a court that they know they are dealing in falsehoods–at least, in the absence of some inadvertent admission– would be impossible.

Overall, the protection offered by the First Amendment is immensely positive. That said, however, the reality of our time is that “censorship” is no longer accomplished by suppression; today, partisans and culture warriors flood the Information environment with enormous amounts of clickbait and propaganda, intended to “drown out” responsible fact-finding, then use the First Amendment as a shield.

it’s a situation that requires a citizenry able to separate wheat from chaff. Civic and news literacy have never been more important.

Unfortunately, the ideologies that motivate the propaganda in the first place also convince partisans that “truth” is information that confirms their initial biases–and increasingly, that illegal and/or illegitimate action–even insurrection– is protected “free speech.”

it isn’t.

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Sue The SOB’s

I’ve spent a lot of time–and pixels–on what sometimes seems like an insurmountable problem: how do we stop media outlets from blatant political  lying– out-and-out propaganda– without doing irreparable harm to the Free Speech clause of the First Amendment?

The problem is everywhere.

One recent example: a site called Big League Politics reported that Nancy Pelosi purchased a $25 million-dollar oceanfront mansion on Jupiter Island “an elite community with the distinction of its residents possessing the highest per capita income of any municipality in the United States.” Rightwing sites eagerly circulated the report, which actual reporters found to be demonstrably, patently false.

What to do? I’m beginning to think the answer is “sue their socks off!”

According to last Thursday’s New York Times,

Two Georgia election workers who were the targets of a right-wing campaign that falsely claimed they manipulated ballots filed a defamation lawsuit on Thursday against one of the nation’s leading sources of pro-Trump misinformation.

The suit against the right-wing conspiratorial website The Gateway Pundit was filed by Ruby Freeman and her daughter, Shaye Moss, both of whom processed ballots in Atlanta during the 2020 election for the Fulton County elections board. It follows a series of defamation claims filed by elections equipment operators against conservative television operators such as Fox News, Newsmax and One America News.

The allegations had been thoroughly investigated and found to be false, but that didn’t stop the pro-Trump disinformation campaign.The women received death threats and unending harassment from phone calls and text messages. Ms. Freeman and Ms. Moss, both of whom are Black, were also subjected to racial slurs.

A far more high-profile series of lawsuits has been filed by manufacturers of election technology.  Dominion Voting Systems has filed defamation lawsuits against Sidney Powell and Rudy Giuliani and against MyPillow CEO Mike Lindell. A federal judge recently ruled that those lawsuits can proceed. The court gave short shrift to claims that the defendants didn’t defame Dominion with their discredited allegations that the company was involved in election fraud that delivered the presidential election to Joe Biden.

Powell and Lindell claimed during a June hearing they could not be sued for defamation because they stood by their fraud claims and Dominion could not prove they made the allegations with “actual malice” knowing that they were false.

The judge noted that the claims were sufficiently fanciful that they demonstrated either knowing falsity or “reckless disregard for the truth”and said “a reasonable juror could conclude” Lindell’s claims of a “vast international conspiracy that is ignored by the government but proven by a spreadsheet on an internet blog is so inherently improbable that only a reckless man would believe it.”

The complaint filed by the two women suing The Gateway Pundit and other right-wing outlets did not specify a dollar amount that would compensate them, but Dominion is asking for billions of dollars in damages. In addition to the defendants listed above, it has also sued Fox News, Newsmax, One America News and former Overstock CEO Patrick Byrne.

Smartmatic, another election machine provider, has filed several suits as well.

The First Amendment protects citizens against government censorship. It does not protect purveyors of out-and-out lies from lawsuits charging libel or slander. And those lawsuits can be effective, as the New York Times reported in February.

In just a few weeks, lawsuits and legal threats from a pair of obscure election technology companies have achieved what years of advertising boycotts, public pressure campaigns and liberal outrage could not: curbing the flow of misinformation in right-wing media.

Fox Business canceled its highest rated show, “Lou Dobbs Tonight,” on Friday after its host was sued as part of a $2.7 billion defamation lawsuit. On Tuesday, the pro-Trump cable channel Newsmax cut off a guest’s rant about rigged voting machines. Fox News, which seldom bows to critics, has run fact-checking segments to debunk its own anchors’ false claims about electoral fraud.

These lawsuits hit propagandists where it counts–in their pocketbooks. Fox News had to pay millions last year to the family of a murdered Democratic National Committee staff member that Fox hosts had falsely accused of leaking emails to WikiLeaks.

Can the tactic be abused? Absolutely–just look at Donald Trump, who  routinely sued anyone who reported on him negatively. Defending against even spurious claims can be expensive; I don’t want to minimize the downside.

That said, I agree with Roberta Kaplan.

This shouldn’t be the way to govern speech in our country,” Ms. Kaplan said. “It’s not an efficient or productive way to promote truth-telling or quality journalistic standards through litigating in court. But I think it’s gotten to the point where the problem is so bad right now there’s virtually no other way to do it.”

Sue the liars.

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Who’s Talking?

I finally got around to reading an article about Facebook by a Professor Scott Galloway, sent to me by a reader. In it, Galloway was considering the various “fixes” that have been suggested in the wake of continuing revelations about the degree to which Facebook and other social media platforms have facilitated America’s divisions.

There have been a number of similar articles, but what Galloway did better than most was explain the origin of Section 230 of the Communications Act in language we non-techie people can understand.

In most industries, the most robust regulator is not a government agency, but a plaintiff’s attorney. If your factory dumps toxic chemicals in the river, you get sued. If the tires you make explode at highway speed, you get sued. Yes, it’s inefficient, but ultimately the threat of lawsuits reduces regulation; it’s a cop that covers a broad beat. Liability encourages businesses to make risk/reward calculations in ways that one-size-fits-all regulations don’t. It creates an algebra of deterrence.

Social media, however, is largely immunized from such suits. A 1996 law, known as “Section 230,” erects a fence around content that is online and provided by someone else. It means I’m not liable for the content of comments on the No Mercy website, Yelp isn’t liable for the content of its user reviews, and Facebook, well, Facebook can pretty much do whatever it wants.

There are increasing calls to repeal or reform 230. It’s instructive to understand this law, and why it remains valuable. When Congress passed it — again, in 1996 — it reasoned online companies were like bookstores or old-fashioned bulletin boards. They were mere distribution channels for other people’s content and shouldn’t be liable for it.

Seems reasonable. So–why the calls for its repeal? Galloway points to the multiple ways in which the information and communication environments have changed since 1996.

In 1996, 16% of Americans had access to the Internet, via a computer tethered to a phone cord. There was no Wi-Fi. No Google, Facebook, Twitter, Reddit, or YouTube — not even Friendster or MySpace had been birthed. Amazon sold only books. Section 230 was a fence protecting a garden plot of green shoots and untilled soil.

Today, as he points out, some 3 billion individuals use Facebook, and fifty-seven percent of the world population uses some sort of social media. Those are truly astonishing numbers.

I have previously posted about externalities–the ability of manufacturers and other providers to compete more successfully in the market by “offloading” certain of their costs to society at large. When it comes to social media, Galloway tells us that its externalities have grown as fast as the platforms’ revenues–and thanks to Section 230, society has borne the costs.

In sum, behind the law’s liability shield, tech platforms have morphed from Model UN members to Syria and North Korea. Only these Hermit Kingdoms have more warheads and submarines than all other nations combined.

As he points out, today’s social media has the resources to play by the same rules as other powerful media. Bottom line: We need a new fence. We need to redraw Section 230 so that it that protects society from the harms of social media companies without destroying  their  usefulness or economic vitality.

What we have learned since 1996 is that Facebook and other social media companies are not neutral platforms.  They aren’t bulletin boards. They are rigorously managed– personalized for each user, and actively boosting or suppressing certain content. Galloway calls that “algorithmic amplification” and it didn’t exist in 1996.

There are evidently several bills pending in Congress that purport to address the problem–aiming at the ways in which social media platforms weaponize these algorithms. Such approaches should avoid raising credible concerns about chilling free expression.

Reading the essay gave me some hope that we can deal–eventually–with the social damage being inflicted by social media. It didn’t, however, suggest a way to counter the propaganda spewed daily by Fox News or Sinclair or their clones…

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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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