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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Repeating My Mantra…

People who have read this blog for any length of time are familiar with some of my preoccupations–civic literacy and civics education, climate change, competent governance, and job creation. (Admittedly, I have a lot of “hot buttons”…)

I have been fairly consistent in my approach to most of these issues over the years, but I’ve changed my tune when it comes to growing the economy and creating jobs. I used to be persuaded by the argument that significant raises in the minimum wage would lead to job losses–it seemed logical that forcing a business to pay more to worker A would leave that business with fewer dollars with which to hire worker B. What I didn’t understand was the unspoken caveat: all things being equal. In the real world, it turns out that all things aren’t equal.

What the real world evidence shows is that paying workers a living wage–and thus providing them with a modicum of disposable income–is what creates jobs. As I now understand, demand is what creates jobs, not the beneficence of the factory owner. The guy who owns the widget factory isn’t going to hire more workers to make widgets if no one has the money to buy them.

A recent article in The Week emphasized the point

For many years, rich oligarchs have posed as the engines of the economy — the entrepreneurs whose beneficence and wise decisions create economic prosperity. In a 2019 article for Fox News, Sally Pipes, president of the right-wing Pacific Research Institute, called for Americans to “celebrate America’s job creators” during Labor Day. “Let’s honor the people responsible for that grandeur — namely, the profit-seeking entrepreneurs and business people who make our economy hum,” she wrote.

This is bunk. The real engine of the economy is the dollars in the pocket of the humble average citizen.

The article goes further, however. Most economists now recognize that putting additional money in the hands of workers stimulates demand, but they tend to think of that demand in the context of a fixed economic capacity–as a mechanism for getting to full employment in existing factories and other enterprises.

In reality, as Skanda Amarnath and Alex Williams argue at Employ America, spending also affects overall capacity. A factory, for instance, is not some immortal thing — at a minimum, it must be continually maintained because of entropy and ordinary wear and tear on equipment. To remain competitive, it must be regularly upgraded with the latest production technologies. But businesses will logically invest in new capacity only if they see a market for the goods and services that capacity would produce. This is especially true with respect to high-tech manufacturing investment, which is very complex and expensive — taking over half a decade to pay off.

Amarnath and Williams argue that slack demand afflicted America’s economy well before the 2008 recession, and that it is only surging again now because of the huge boom in sales of computer products–a boom generated by two things; the pandemic surge in working from home, and government transfers to individuals, also due to the pandemic.

All of the available evidence confirms that giving poorer people more money generates economic growth. When you give rich people more money–through Republican policies like deregulation, union busting and especially the numerous, generous tax cuts so dear to GOP hearts–they disproportionately save it, rather than spending it and boosting the economy.

As the article says, cash in the pockets of the working poor isn’t just good in in a humanitarian sense (giving people money they need to live.) It’s good because spending those dollars is what will keep businesses humming, investment high, and the economy healthy.

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A Female Perspective

I was asked to make a (Zoom)presentation to a group of O’Neill women students, focused on “women and politics.” This is what I said.
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I think I have always been a “political” person, in the sense that the question that has always fascinated me is a question that most women wrestle with in one way or another: how should people live together? What sort of social and political arrangements are most likely to nourish our humanity and promote—in Aristotle’s term—human flourishing? If the old African proverb is right, if it “takes a village to raise a child,” what should that village look like, and how should its inhabitants behave? How do we build that kind of village? Politics is the process of turning our answers to those questions into policy—and since women’s answers have been shaped by our life experiences, it is important that women’s voices be part of the policy process.

You have asked me to share my experiences as a professional and political woman, so let me get the biography out of the way. I was born in 1941, and I am very much a product of the 1950s, way before any of you were born. It was a time when women went to college to find a husband, a time when we were expected to be decorative and submissive—or at the very least, quiet. (You can see why I had a problem.)

I grew up in Anderson, Indiana, where being Jewish was at best exotic and at worst, Satanic, and where I was usually the only Jew my classmates had ever encountered. Those experiences undoubtedly deepened my interest in social divisions and the effects of marginalization. They also kindled an ongoing fascination with the ways in which religions shape our worldviews.

I left Anderson for college when I was 16. I wanted to major in liberal arts, but my father insisted that I get a teaching degree, because if my eventual husband died, I would need something to fall back on. At the time, educated women were secretaries, teachers or nurses; I couldn’t type and the sight of blood made me queasy. That left teaching. Because I was so young, my parents sent me to Stephens College for Women, a two-year school that took very seriously its obligation to act in loco parentis. After Stephens, I briefly attended the University of North Carolina, where the most indelible lesson I learned was that when you pay Full Professors 3000/year, you get what you pay for. (Even in the 1950s, 3000 wasn’t much.) I transferred to IU Bloomington to finish my undergraduate degree, got married and divorced, and later did a semester at Butler, pursuing an MA in literature that I never finished.

I married a second time and took my first job (well, first if you don’t count the summer I worked for my father’s friend at his—no kidding—Cadillac-Rambler agency, where I was billed as Anderson’s first female used car salesman.) I began my adult work life as a high school English teacher. When I became pregnant with my first child, however, I could no longer teach—Even though I was married, those days, once women teachers “showed,” we could no longer be in the classroom. The theory evidently was that the kids would know what we’d been up to…

I went to law school when I was 30 and had three small children (four if you count the husband I had at the time). There were very few women in law school then, and my most important epiphany revolved around the need for potty parity… the few women’s restrooms were for the secretarial staff and inconvenient for students. After graduating law school, I was the first female lawyer hired at what was then Baker and Daniels.

To give you a flavor of the time—serial interviews with prospective associates were conducted by several of the partners, and I was in conversation with two who were being very careful not to ask improper questions—this was barely ten years after creation of the EEOC. Since I had three children, I thought it reasonable to volunteer my childcare arrangements. One of the partners was so obviously relieved that I wasn’t acting like some sort of radical bra-burning feminist, he blurted out: “It isn’t that there’s anything wrong with being a woman. We hired a man with a glass eye once!”

I practiced corporate law for three years, until Bill Hudnut asked me to take charge of the City’s legal department. I was the first woman to serve as Corporation Counsel in Indianapolis–or, to the best of my knowledge, in any major metropolitan area. At the time, Indianapolis had two newspapers. The afternoon paper, the Indianapolis News, had a front-page “gossip” blurb, and I still recall its juicy little item after my appointment was announced: “What high-ranking city official appointed his most recent honey to a prominent position…” I guess it was inconceivable that I’d been appointed because I was a decent lawyer, or even because I represented a constituency Bill was reaching out to. Gotta sell papers…

I left City Hall to be the Republican candidate for Congress in 1980, running against Andy Jacobs, Jr., in what was then Indiana’s 11th Congressional district. That was back when Republicans were still rational, and political campaigns less toxic. I was pro-choice and pro-gay rights, and I won a Republican primary. The worst name I called Andy was Democrat. My youngest son later served as his Congressional page, and after Andy retired, he and I would occasionally have lunch. As I say, things were different then….
I also remarried during that campaign and I’m happy to report that the third time was the charm—it’s been 41 years and counting.

After losing the election, I practiced law, started a Real Estate Development Company that went broke during the recession of the late 1980s, and served six years as the Executive Director of Indiana’s ACLU. I joined IUPUI’s faculty in 1998.

I’ve lived through the women’s movement, the Civil Rights movement, the 60s, the sexual revolution (I missed it by 6 years!), the gay rights movement, the decades of religious zealotry that a friend calls “America’s most recent Great Awakening,” and a dizzying explosion of new technologies. As George Burns once said, I’m so old I remember when the air was clean and sex was dirty.

I became politically active at nineteen, as a Republican. I was persuaded—and remain persuaded—by what has been called the “libertarian principle,” the belief that the best society is one in which individuals are free to set and pursue our own life goals, determine our own telos, so long as we don’t harm the person or property of a non-consenting other, and so long as we are willing to grant an equal right to others. Back then, with some notable exceptions, the GOP understood the importance of “so long as” in those last two caveats. Times, obviously, have changed. The political party to which I belonged no longer exists, except in name.

For those who begin with the libertarian principle as I just shared it, good faith political arguments tend to revolve around the nature and severity of the “harms” that government can legitimately prohibit or regulate, and the extent of government’s obligation to provide a physical and social infrastructure to be paid for through citizens’ “dues,” called taxes. Needless to say, we are not having those good faith arguments today—instead, we are in a culture war– what may well be an existential struggle between science and reason on the one hand, and a variety of fundamentalisms on the other.

Women do not do well in culture wars.

Of the nine books I’ve written, the two that taught me the most—the ones that required the “deepest dives” into our philosophy of government and suggested some answers to Aristotle’s question—were God and Country: America in Red and Blue and my small textbook Talking Politics? What You Need to Know Before You Open Your Mouth.

The research I did for God and Country provided me with a lens through which I’ve come to understand so much of our current political environment. Policymaking has become a power struggle between Puritans who believe government should make the rest of us live “godly” lives, based upon their particular version of what’s godly, and those of us who demand that government act on what John Rawls called “public reasons,” based upon logical persuasion and scientific and empirical understandings. Contemporary Puritans remain deeply antagonistic to the Enlightenment and to secular ways of knowing—especially science—and they utterly reject the notion that each of us gets to define our own morality. Scroll down a Facebook page, or read the comments section of an online newspaper, and you’ll come across posts from fundamentalists of various stripes who wrap themselves in victimhood whenever government fails to impose their preferred worldviews on everyone else. And as most women understand, those preferred worldviews almost always include a “biblically-mandated” submission of women.

Another example is the effort—in Indiana and elsewhere—to exempt so-called “bible-believing Christians” from compliance with otherwise applicable civil rights laws. In our system, religious citizens have absolute liberty to believe whatever they want—that’s the individual rights pole of the continuum. But religious or political beliefs, no matter how sincere, don’t entitle people to sacrifice newborns or bomb abortion clinics, and they don’t entitle them to engage in behavior that is contrary to America’s cultural and legal commitment to civic equality. That’s the public good end of the continuum. There’s no religious privilege to behave in ways that we collectively deem destructive to America’s social health.

Let me just share a final observation: Social justice is a term we don’t hear very often these days. Social justice is aspirational, and its elements are subject to debate, but at its heart, the concept is concerned with mutual obligation and the common good. In its broadest outlines, a just society is one that meets the basic human needs of its members, without regard to their identities, genders or social status—a society that doesn’t draw invidious distinctions between male and female, black and white, gay and straight, religious and atheist, Republican and Democrat, or any of the other categories into which we like to sort our fellow humans. It is a society that recognizes and respects the inherent dignity and value of each person.

We should want to make our society more just for many reasons, practical as well as moral: for one thing, a more equitable society is in the long-term best interests of even those people who don’t feel any obligation to feed hungry children or find jobs for ex-offenders or make health care accessible to poor people. That’s because in order to remain competitive in the global economy, America needs to make use of all its talent. Social systems that prevent people from contributing their talents cost all of us in lost opportunities and unrealized promise.

I’m painfully aware that cultural institutions, folkways and intellectual paradigms influence people far more than logic and reason, and I also know that culture is incredibly difficult to change. Systemic barriers and ingrained privilege don’t disappear without significant upheavals or outright revolutions.

Even more daunting, when I look at today’s politics, I’m reminded of a 1999 movie called “The Sixth Sense.” The young boy in that movie saw dead people. I see crazy people.

If I had to guess why so many of our fellow-citizens appear to have gone off the deep end—why they are trying to stockpile guns, roll back women’s rights, put gays back in the closet, stigmatize African-Americans and stereotype Muslims—I think the answer is fear. Change is creating a very different world from the one most of us grew up in, and the pace of that change continues to accelerate. As a result, we have a lot of bewildered and disoriented people who find themselves in an increasingly ambiguous world; they are frantic for bright lines, clear rules, simple answers to complicated issues, and especially, for someone to blame. People who are unhappy or dissatisfied with their lives evidently need to attribute their problems and disappointments to some nefarious “other.” Black and brown people and “uppity women” are obvious targets.

I have hopes that your generation will be able to reverse this retreat into anti-intellectualism, bigotry and various kinds of fundamentalism. We humans flourish through constant learning, by opening ourselves to new perspectives, by reaching out and learning from those who are different.

And women only flourish in a society that understands that.

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Beyond Left And Right

Bret Stephens–the New York Times columnist– is too conservative for my taste, by which I mean I tend to disagree with his positions on issues. But he is conservative within a traditional American liberal democratic framework.

If that observation seems odd to our contemporary American ears, it is because the language of politics has been debased. Years of Rush Limbaugh and his clones turned “liberal” into an epithet devoid of meaningful content, and the radicalization of the GOP has confused “conservative” with Neanderthal.

Which brings me back to a recent Stephens column with which I do agree.Mostly.

Stephens says the U.S. needs a Liberal Party. He dutifully recites the reasons third parties routinely fail in a system that is set around a two-party duopoly, but he also argues that both the GOP and the Democratic Party are historically weak. I’m unconvinced that things have changed enough to make a third party viable, but in the process of his discussion, he makes a very important–and very under-appreciated–point.

By “liberal,” I don’t mean big-state welfarism. I mean the tenets and spirit of liberal democracy. Respect for the outcome of elections, the rule of law, freedom of speech, and the principle (in courts of law and public opinion alike) of innocent until proven guilty. Respect for the free market, bracketed by sensible regulation and cushioned by social support. Deference to personal autonomy but skepticism of identity politics. A commitment to equality of opportunity, not “equity” in outcomes. A well-grounded faith in the benefits of immigration, free trade, new technology, new ideas, experiments in living. Fidelity to the ideals and shared interests of the free world in the face of dictators and demagogues.

All of this used to be the more-or-less common ground of American politics, inhabited by Ronald Reagan and the two Bushes as much as by Barack Obama and the two Clintons. The debates that used to divide the parties — the proper scope of government, the mechanics of trade — amounted to parochial quarrels within a shared liberal faith. That faith steadied America in the face of domestic and global challenges from the far right and far left alike.

But now the basic division in politics isn’t between liberals and conservatives, as the terms used to be understood. It’s between liberals and illiberals.

Stephens points to the illiberalism of both the Right and the far Left, pointing on the right to  “Stephen Miller on immigration, Steve Bannon on trade, Josh Hawley on elections and Marjorie Taylor Greene on every manner of lunatic and bigoted conspiracy theory.” On the Left, he excoriates excesses of the “Me too” movement and the so-called “cancel culture.” He says that the illiberal Right is by far the most dangerous, because it is capable of winning elections and, when it loses, willing to subvert them.

Whether you agree with his specific critiques or not, I think he is absolutely correct about the need to reinforce and restore the underlying liberal consensus that democracy requires-what he describes as the “capacious” liberal faith within which we can argue in good faith about what “sensible” regulations look like, and the extent of the “social supports” that cushion the vagaries of a market economy.

Today, we characterize those debates over specific policies as “liberal” or “conservative,” but they can only occur within a larger, widely accepted liberal democratic framework that embraces a government protective of individual autonomy, based upon consent of the governed (as reflected by the votes of the citizenry)and committed to equality before the law.

Specific policy debates are, as Stephens says, parochial quarrels within that shared liberal faith.

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The Senate Is Broken

Much as I hate to give credit to the Trump Administration for anything, I will (grudgingly) admit that its prolonged insult to the rule of law and simple competence made it impossible for the majority of Americans to continue ignoring the structural failures that facilitated its numerous offenses. Among those structural failures is the U.S. Senate.

As a report from the Guardian recently explained:

Critics of the US Senate say that for years now, the chamber has not been a field of fair democratic play, paralyzed by its own internal rules and insulated from the popular will by a 230-year-old formula for unequal representation.

Instead, its critics say, the Senate has become a firewall for a shrinking minority of mostly white, conservative voters across the country to block policies they don’t agree with and safeguard the voter suppression tactics that shore up Republican power.

The numbers are staggering.  Democratic senators represent approximately 40 million more voters than Republican senators–a disproportion hardly reflected in the Senate’s 50-50 split, a split that depends upon Kamala Harris to wield a tie-breaking vote.

By 2040, 70% of Americans are expected to live in the 15 largest states, and to be represented by only 30 senators, while 30% of Americans will have 70 senators voting on their behalf, according to analysis by David Birdsell of Baruch College’s School Of Public And International Affairs. The Senate has counted only 11 African American members in its history, out of almost 2,000 total.

The article provides several graphs that show the growth of disproportion, and they are visually stunning.

More than two centuries ago, to incentivize small states to join the union, the framers of the US constitution gave every state two senators, an arrangement that has always left some citizens vastly overrepresented in the body. But not until recent decades did a clear partisan split emerge in which Democrats were far more likely to represent bigger states, while Republicans represented many small states.

The trend has created an immense discrepancy in the influence that voters from less populous, mostly rural – and white, and Republican – states wield in the Senate, compared with voters from states with big cities and more voters of color.

A favorite example of how undemocratic things have gotten is a comparison between the state of California with the state of Wyoming. California has 70 times as many people as   Wyoming – but each state still gets two senators. As the article points out, that gives a small, conservative state the ability to counterbalance a giant, liberal state in any vote on energy policy, taxation, immigration, gun control or criminal justice reform.

America is unlikely to change from two-senators-per-state, but there are other reforms that would make it at least marginally more difficult for a minority to constantly thwart the will of the majority. The current effort to eliminate the filibuster–or at the very least, return it to its former operation–is one. As it is currently used, it allows–even encourages– the Senate minority to block almost anything favored by the majority.

The filibuster has historically been used by both parties in different ways, but it “has always been used to block measures that would lead to racial equity and justice”, said Erika Maye, deputy senior director of criminal justice and democracy campaigns for Color of Change, a racial justice advocacy group.

“It’s been used to stop anti-lynching bills, to uphold the racist poll tax, to delay civil rights legislation – and more recently healthcare, immigration and gun violence reform,” Maye said.

The bottom line is that the disproportionate power exercised by rural states translates to disproportionate power for white voters. In a 2018 column, David Leonhardt calculated  that there are 0.35 senators for every million White people, versus 0.26 senators for every million African Americans and 0.19 for Hispanic Americans–a calculation that prompted Times opinion editors to brand the Senate “affirmative action for white people.”

There’s a reason the federal legislature fails to pass even measures that are popular with all voters–Republicans and Democrats alike. The absence of “one person, one vote,” and America’s current failure to deliver even remotely democratic self-government, leaves policy firmly in the hands of the plutocrats and their GOP supplicants.

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