Category Archives: Free Speech

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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Free Speech

“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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Section 230

These are hard times for free speech advocates. The Internet–with its capacity for mass distribution of lies, misinformation, bigotry and incitement to violence–cries out for reform, but it is not apparent (certainly not to me) what sort of reforms might curb the dangers without also stifling free expression.

One approach is focused on a law that is older than Google: Section 230 of the Communications Decency Act. 

What is Section 230? Is it really broken? Can it be fixed without inadvertently doing more damage? 

The law is just 26 words that allow online platforms to make rules about what people can or can’t post without being held legally responsible for the content. (There are some exceptions, but not many. )As a recent newsletter on technology put it (sorry, for some reason link doesn’t work),

If I accuse you of murder on Facebook, you might be able to sue me, but you can’t sue Facebook. If you buy a defective toy from a merchant on Amazon, you might be able to take the seller to court, but not Amazon. (There is some legal debate about this, but you get the gist.)

The law created the conditions for Facebook, Yelp and Airbnb to give people a voice without being sued out of existence. But now Republicans and Democrats are asking whether the law gives tech companies either too much power or too little responsibility for what happens under their watch.


Republicans mostly worry that Section 230 gives internet companies too much power to suppress online debate and discussion, while Democrats mostly worry that it lets those companies ignore or even enable dangerous incitements and/or illegal transactions. 

The fight over Section 230 is really a fight over the lack of control exercised by Internet giants like Facebook and Twitter. In far too many situations, the law allows people to lie online without consequence–lets face it, that high school kid who is spreading lewd rumors about a girl who turned him down for a date isn’t likely to be sued, no matter how damaging, reprehensible and untrue his posts may be. The recent defamation suits brought by the voting machine manufacturers were salutary and satisfying, but most people harmed by the bigotry and disinformation online are not in a position to pursue such remedies.

The question being debated among techies and lawyers is whether Section 230 is too protective; whether it reduces incentives for platforms like Facebook and Twitter to make and enforce stronger measures that would be more effective in curtailing obviously harmful rhetoric and activities. 

Several proposed “fixes” are currently being considered. The Times article described them.


Fix-it Plan 1: Raise the bar. Some lawmakers want online companies to meet certain conditions before they get the legal protections of Section 230.

One example: A congressional proposal would require internet companies to report to law enforcement when they believe people might be plotting violent crimes or drug offenses. If the companies don’t do so, they might lose the legal protections of Section 230 and the floodgates could open to lawsuits.

Facebook this week backed a similar idea, which proposed that it and other big online companies would have to have systems in place for identifying and removing potentially illegal material.

Another proposed bill would require Facebook, Google and others to prove that they hadn’t exhibited political bias in removing a post. Some Republicans say that Section 230 requires websites to be politically neutral. That’s not true.

Fix-it Plan 2: Create more exceptions. One proposal would restrict internet companies from using Section 230 as a defense in legal cases involving activity like civil rights violations, harassment and wrongful death. Another proposes letting people sue internet companies if child sexual abuse imagery is spread on their sites.

Also in this category are legal questions about whether Section 230 applies to the involvement of an internet company’s own computer systems. When Facebook’s algorithms helped circulate propaganda from Hamas, as David detailed in an article, some legal experts and lawmakers said that Section 230 legal protections should not have applied and that the company should have been held complicit in terrorist acts.


Slate has an article describing all of the proposed changes to Section 230.

I don’t have a firm enough grasp of the issues involved–let alone the technology needed to accomplish some of the proposed changes–to have a favored “fix” to Section 230.

I do think that this debate foreshadows others that will arise in a world where massive international companies–online and not– in many cases wield more power than governments. Constraining these powerful entities will require new and very creative approaches.

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