Indiana’s Fools Aren’t Just For April…

When it comes to politics in Indiana, one of the savviest observers is Jack Colwell, who writes for the South Bend Tribune. A recent column documenting reasons the Indiana General Assembly still deserves to be called the World’s Worst Legislature is a good  example.

After reading it, I decided that a discussion of our legislature would be appropriate for April Fool’s Day.

Colwell’s list–while not exhaustive–is illustrative. He began by noting that Indiana’s legislature has historically been ridiculous.

Indiana’s legislature long has been the subject of ridicule, going back historically to a time 134 years ago when violence among members forced the end of a session.

Later came influence of the Klan, influence of money that brought scandals and prison and decades of influence by naysayers who found progress too risky.

Sometimes it became a national joke, as with a bill to establish the state’s own definition of pi. Not pie, as in apple, cherry or pumpkin, but Indiana’s own mathematical value of pi.
 
In 2015, there were all those jokes by comedians on national TV about Indiana’s Freedom to Discriminate Act.

Colwell then enumerates the disaster that is the 2021 session: in the face of Governor Holcomb’s largely effective measures to contain the pandemic (whatever your “take” on the Governor’s efforts, it is undeniable that he has been more decisive–and effective–than most Republican Governors), the legislature has moved to remove his authority to act in a future emergency.

Colwell notes that “pressure from the Freedom to Infect Caucus” also has pushed Holcomb to end the statewide mask mandate a bit prematurely.

Speaking of the pandemic, some businesses have acted in ways that endangered the health–and lives– of their workers and others. Our General Assembly to the rescue–of the businesses, not the victims. It passed a. bill awarding COVID-19 civil immunity for businesses and prohibiting class action lawsuits against them. 

Is climate change a looming danger? The General Assembly–especially members who  develop real estate–  wants further limits on the protection of wetlands. (Who cares about the world their grandkids will inhabit? Or the purity of the water we’re all drinking now?)

Speaking of the environment, replacing  a significant amount of emissions by encouraging and enabling mass transit is one of the many, many reasons such systems are important. So our legislature is trying to destroy Indianapolis’ belated effort to create a workable and environmentally-friendly mass transit system. 

Has the nation recently been stunned by still more mass shootings? Indiana’s General Assembly wants to eliminate the need for a license to carry a gun. As Colwell says,

Why require unnecessary cost and bureaucratic delay for someone wanting a gun? Some law-abiding citizen might want a gun quickly for a visit to a spa. A new recruit of the Proud Boys should not be inconvenienced.

And then, of course, there’s the persistence of the “White Legislative Caucus.” Colwell notes the ugly episode during the current session, where Republican legislators booed their Black colleagues.

Coincidentally, the same day his column ran, the Indianapolis Star had a front-page report about Representative Jim Lucas, Republican from Seymour whose Facebook page has been the subject of numerous accusations of blatant racism. (Our daughter has previously told us that she had visited that page, and was horrified by the “out and proud” bigotry she saw.)

The Star article reported on a conversation between Lucas and a Black surgeon, which the surgeon experienced as racist. Lucas evidently feels that any rhetoric or action short of lynching isn’t really racist, but as the newspaper noted

Lucas has a history of making troubling comments. The Indiana State Conference of the NAACP has called for his resignation after past actions.

Last year, Huston removed him from two committees as punishment for other controversial Facebook posts. On Twitter there’s a hashtag used by some critics, “#LucasMustGo.”

I’m clearly not the only Hoosier who is mortified by the people elected to “represent” me.

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It’s All Connected

Americans today face an unprecedented challenge. The Internet, which has brought us undeniable benefits and conveniences, also allows us to occupy “filter bubbles”—to inhabit different realities. One result has been a dramatic loss of trust, as people of good will, inundated with misinformation, spin, and propaganda, don’t know how to determine which sources are credible.

Fact-checking sites can be helpful, but only for those who seek them out. The average American scrolling through her Facebook feed during a lunch break is unlikely to stop and check the veracity of most of what her friends post.

There is general agreement that Americans need to develop media literacy. But before we can teach media literacy in the schools or consider policy interventions to address propaganda, we need clarity about our goals.

Think about that fictional person scrolling through her Facebook or Twitter feed. She comes across a post berating her Congressman for failing to block the zoning of a liquor store in her neighborhood. If our person is civically literate—if she understands federalism and separation of powers– she knows that her Congressman has no authority in such matters, and that the argument is bogus.

In other words, basic knowledge of government is a critical component of media literacy. It isn’t just civic knowledge, of course. People who lack a basic understanding of the difference between a scientific theory and the way we use the term “theory” in casual conversation are much more likely to dismiss evolution and climate change as “just theories,” and to be taken in by efforts to discredit both.

In other words, people fortified with basic civic and scientific knowledge are far more likely to recognize disinformation when they encounter it. That knowledge is just as important as information on how to detect “deep fakes” and similar counterfeits.

There are also policy steps we can take to diminish the power of propaganda without doing violence to the First Amendment. I’ve previously noted the Brookings Institution’s suggested establishment of a “public trust” to provide analysis and generate policy proposals that would defend democracy “against the constant stream of disinformation and the illiberal forces at work disseminating it.”

Of course, we don’t encounter disinformation only on line. Cable news has long been a culprit. (One study found that Americans who got their news exclusively from Fox knew less about current events that people who didn’t follow news at all.)  Fox is one of several channels that benefit significantly from “bundling” arrangements favored by cable companies. A regulatory change ending bundling would force cable channels to compete for the eyes, ears and pocketbooks of Americans who haven’t yet abandoned cable for streaming. There are other proposals that would address misinformation without implicating the First Amendment; many address the social media protections offered by Section 230 of the Communications Decency Act.

A couple of days ago, I blogged about Section 230, which says that “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” In other words, online platforms that host or republish speech are protected against a range of laws that might otherwise be used to hold them legally responsible for what others say and do.

Most observers believe that an outright repeal of Section 230 would destroy social networks as we know them, but there is a middle ground between total repeal and pinning our hopes on the willingness of millions of users to voluntarily leave platforms that fail to block misleading posts. Section 230 could be amended by adding a requirement that social media platforms establish an industry standard for detecting and mediating violence, fraud, and abuse. (Such a standard already exists for advertising fraud.) Regulation could also limit Section 230 protections to content that is unmonetized.

Bottom line: we can walk and chew gum at the same time.

America’s classrooms must be given the resources—curricular and financial—to teach civic, scientific and media literacy. And policymakers must devise regulations that will deter propaganda without eviscerating the First Amendment.

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The EPA Is Back!

A recent headline from the New York Times warmed my heart. It announced “EPA to Review Attacks on science Under Trump.”

One of the most damaging aspects of the four years in which America experienced crime-syndicate-as-government was the ruthless attack on facts. From Kellyanne Conway’s “alternative facts” to the elimination of scientific advisory panels, the only consistent agenda of the Trump administration was its persistent attention to its donors’ bottom lines, and disregard of the human need for clean air and water–not to mention a habitable planet and non-toxic foods.

The Biden administration is taking the unusual step of making a public accounting of the Trump administration’s political interference in science, drawing up a list of dozens of regulatory decisions that may have been warped by political interference in objective research.

The effort could buttress efforts to unwind pro-business regulations of the past four years, while uplifting science staff battered by four years of disregard. It is particularly explicit at the Environmental Protection Agency, where President Biden’s political appointees said they felt that an honest accounting of past problems was necessary to assure career scientists that their findings would no longer be buried or manipulated.

In a blunt memo this month, one senior Biden appointee said political tampering under the Trump administration had “compromised the integrity” of some agency science. She cited specific examples, such as political leaders discounting studies that showed the harm of dicamba, a popular weedkiller that has been linked to cancer and subsequently ruling that its effectiveness outweighed its risks.

The list of suspect decisions and disregard for settled science is expected to reach at least 90 items.

The current E.P.A. administrator, Michael Regan, sent out an email message in which he emphasized the danger of allowing politics  to drive science,  and the likelihood that making politics the priority would end by sacrificing the health of the “most vulnerable among us.”

President Donald J. Trump’s well-documented attacks on science include doctoring a map with a black Sharpie to avoid acknowledging that he was wrong about the path of a hurricane and then pressuring scientists to back his false claim; meddling in federal coronavirus research; and pressuring regulators to approve Covid 19 vaccines and treatments. Those actions provoked bipartisan concern during his administration.

Those actions may have received the most media coverage, but what really alarmed me was the less noted elimination of scientific panels and the appointment of fossil fuel lobbyists to positions of authority in both the EPA and the Department of the Interior.

Trump’s first choice for the EPA, Scott Pruitt, removed the agency’s web page on climate change and fired and barred any independent scientific advisers who had been awarded grants from the E.P.A. The courts found that latter policy to be illegal. Pruitt also rolled back several scientifically-supported policies after holding meetings with executives and lobbyists.

Andrew Wheeler, who succeeded Pruitt,  repeatedly ignored the advice of scientists: he  curbed but refused to ban asbestos; insisted that the health effects of a widely-used pesticide were “unresolved” despite years of agency research proving its danger to infants; and pushing through a policy (which has also died in the courts) to limit the type of health and epidemiological studies that could be used to justify regulations.

The incoming staff has uncovered multiple instances in which agency personnel were told to disregard scientific consensus, and to help favored businesses avoid “problems.”

Competence and integrity in government is incredibly important in the development of environmental policy, just as it is in management of a pandemic. Peoples lives–and the livability of the planet–are at stake. The willingness of the Biden Administration to commit to science, fact and empirical knowledge is incredibly welcome.

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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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Testing The Current Court

The worst “hangover” from four years of Trump is undoubtedly the composition of the country’s federal courts–including but not limited to the Supreme Court. Granted, Trump–who wouldn’t know a legal principle if he fell over one–wouldn’t have known how to stuff the courts with rightwing ideologues; Mitch McConnell is the villain. But Trump enabled him.

In a recent column for the New York Times, Linda Greenhouse explained the troubling implications–and predictive value– of an upcoming Supreme Court case.

The case that the Supreme Court heard this week about a California law granting union organizers access to private farms has been described as a labor case, which it marginally is. It has also been described as a case about property rights, which it definitely is. But what makes Cedar Point Nursery v. Hassid one of the most important cases of the current term is the question it presents for the newly configured court: whether, after years of disappointment, the political right may finally be able to take the Supreme Court for granted.

The case is being brought by the Pacific Legal Foundation, and as Greenhouse reports, Pacific group is using Cedar Point–a company that grows strawberries– and another employer that packs and ships citrus fruit and grapes, as “stalking horses for its long-running project to elevate property rights.”

The case involved union access to agricultural workers. The California law being challenged had been passed during Cesar Chavez’s drive to organize the state’s farmworkers. It limited the ability of the union to approach workers in the field to periods before and after the working day and to three hours on 120 days of a year.

Greenhouse focused in on an illuminating–and to lawyers, startling–exchange between the lawyer and Justice Kavanaugh. Kavanaugh referred to a 1956 case that balanced employers’ property rights agains union organizing rights, and noted that–under that test–Pacific would “prevail”–it would win its case. The lawyer for Pacific “rejected out of hand” that potential path to victory.

Pacific isn’t interested in just winning its case. It wants to change the law.

The Pacific Legal Foundation doesn’t want a balancing test. It wants a categorical rule — referred to throughout the argument as a “per se rule” — that any entry by a union onto private land, if authorized by the state, is a “taking” of private property in violation of the Fifth Amendment’s Takings Clause (“nor shall private property by taken for public use, without just compensation”). Any entry at all.

So let me ask you this,” Justice Amy Coney Barrett said to Mr. Thompson. “What if California had a regulation that permitted union organizers to go onto the property of your clients one hour a day, one day a year. Is that a taking subject to the per se rule?”

Yes, the lawyer replied.

Barrett clerked for former Justice Scalia, who championed an expansion of the categories of government action that count as a “taking.”  The Fifth Amendment requires government to compensate property owners for takings, and there has long been an effort to turn regulations–especially environmental regulations–into compensable takings subject to that Amendment.

If you have a wetland on your property and regulations impede your ability to develop it, for example, the government would have to “compensate” you.

Until a 1992 case, Lucas v. South Carolina,  courts had defined takings as the physical occupation of private property, usually via eminent domain.

Government actions that didn’t “take” private property in the literal sense, but simply limited its use in certain ways, were regarded as “regulatory takings,” with the private and governmental interests being weighed against one another to determine whether compensation was required…

When a regulation “declares ‘off-limits’ all economically productive or beneficial uses of land,” Justice Scalia wrote for the court, “compensation must be paid to sustain it.”

Ever since, the Pacific Legal Foundation has argued for the adoption of what Scalia called a “categorical” taking.

That was the war that resumed at the Supreme Court this week, and that history explains why, from the Pacific Legal Foundation’s point of view, anything short of total victory is beside the point.

Greenhouse notes that whether the court buys Pacific’s theory will tell us a great deal about the success of McConnell’s effort to refashion the courts.

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