Tag Archives: Free Speech

Elon Musk And The Public/Private Dilemma

Public Policy and Governance, , , ,

Alexandra Petri recently had a gloriously snarky opinion piece in the Washington Post,comparing Elon Musk to her toddler. Titled “Things both my toddler and Elon Musk do that are signs of genius, apparently” it included things like “Constantly yelling at people to change things that cannot be changed” and “When presented with slow, patient explanations of why things are not possible, just screams louder;” and “Likes to seize nice things and ruin them because of a fundamental misunderstanding of what they are for.”

And of course, “Wants to be center of attention at all times.”

It’s disturbing enough when a man-child (“man-toddler?”) has enough money to buy and control what had been a significant mode of communication, but its terrifying to discover that this petulant child has the power to interfere in matters of global war and peace. As multiple media outlets have reported, Musk’s SpaceX refused to allow Ukraine to use its Starlink internet services to launch an attack on Russia last September–a decision that undoubtedly prolonged the conflict and benefitted Russia.

Musk has defended his decision as an effort to prevent possible nuclear war. Whatever your opinion of that excuse, or his action, the episode raises a profound question: should a single private citizen–even one less mercurial and self-aggrandizing than Musk– have the power to decide such questions? 

We live in a very weird time. Government evidently gets to decide what I do with my uterus, but not how the U.S. will assist in the defense of its allies….

I know this will come as a shock to several self-satisfied “captains of industry,” but having a lot of money does not necessarily translate into superior knowledge or nuanced understanding. Musk is actually a poster boy for that disconnect–as David French (who spent years as a First Amendment lawyer) recently wrote in the New York Times,

Despite his loud and frequent protestations, Elon Musk may be the worst ambassador for free speech in America. To understand why, it’s necessary to look at X, the website formerly known as Twitter, which he owns and rules over like the generalissimo of a banana republic….

Instead of creating a platform for free speech, Musk created a platform for Musk’s speech — or, more precisely, Musk’s power. First, he has demonstrated that he’s perfectly willing to take action against people or entities that challenge him or challenge X. As my friends at the Foundation for Individual Rights and Expression (where I used to serve as president) have detailed, he has used his authority to suspend accounts, to throttle (or limit the traffic of) competitors and reportedly to boost his own voice.

As French quite accurately notes, rather than making Twitter (now X) into a free speech paradise, Musk has turned it into the generalissimo’s playpen, where the generalissimo’s values shape everything about the place.

X is Musk’s company, and he can set whatever speech rules he wishes. But do not be fooled. When Musk defends his decisions by shouting “free speech,” I’m reminded of the immortal words of Inigo Montoya in the movie “The Princess Bride”: “You keep using that word. I do not think it means what you think it means.” Musk isn’t promoting liberty; he’s using his power to privilege many of the worst voices in American life.

Power and privilege. Those two words are–or should be– at the heart of the public/private distinction. Once again, we come back to that fundamental question: what is government for? What functions are properly left to the private sector–to the individual, to the marketplace, or to the wide variety of nonprofit and voluntary organizations–and which must be exercised by a democratically-elected government? 

Right now, that essential inquiry is mired in a host of very serious concerns about the declining health of democratic decision-making, and the increasingly obvious effort of MAGA Republicans to turn America into an autocratic, White Christian Nationalist state. If they are successful, American government will no longer be legitimate under any definition of that term, and the allocation of power between those privileged by the regime and the rest of us will be moot.

If we do manage to salvage democratic governance–if voters come out in 2024 and deal a sufficiently robust defeat to the MAGA Confederates still fighting the Civil War–we will need to turn our attention to the necessary divisions between public and private power.

Governments can and do make grievous mistakes, but that is no reason to allow individuals–even individuals considerably more mature and informed than Elon Musk–to usurp decision-making in realms that must be subject to public accountability.

Okay–Let’s Talk About Free Speech

Free Speech, ,

I haven’t posted about the indictment filed against Donald Trump by Jack Smith, because everyone  else in the universe is contributing to that discussion. But one element of those analyses/debates sets my hair on fire.

Nothing about this prosecution is about Free Speech. Nothing!

I taught my classes in Law and Public Policy through a constitutional lens. I spent the first part of the semester on what I call the “constitutional architecture”–very much including the Bill of Rights. (I was always shocked by the number of students who came to class totally unaware that the First Amendment protects citizens against government censorship–not from other people’s negative responses.)

When we came to freedom of speech, I wanted students to understand the difference between speech–defined as the constitutionally-protected communication of an idea, no matter how wrong or stupid or hurtful–and action, including action effectuated through speech.

Some of the examples I used:

  • I tell you I’ll make you a great deal on a diamond ring. It turns out to be a cubic zirconium. My representations that it was a diamond aren’t protected “speech,” they are fraud–a criminal action.
  • I call you every 15 minutes and scream at you over the phone. You call the police. I protest that I am engaging in freedom of speech. I’m wrong–harassment is an action, and the government has a right to proscribe it.
  • I’m a police officer, and I’m sitting in a restaurant booth. I hear the people in the next booth planning to rob the local bank. One says, “okay, I have the car. You have the gun. I’ve cased the place, and if you are there promptly at two, when the security officers shift, you should be able to get in and out by ten after, and I’ll be waiting.” A conversation of this specificity (unless they are actors rehearsing a scene!) constitutes the initial steps–actions–of the commission of a crime. I need not wait until they are in the middle of that bank robbery–I’m entitled to arrest them now.
  • You are a MAGA fanatic, and you regularly post diatribes to social media about how horrible Joe Biden is, how government and the “deep state” cannot be trusted and how you regularly pray for the painful death of all Democrats. Aside from your social media screeds, you take no action to harm anyone. That’s free speech, and you’re home free–at least, when it comes to the criminal law. (If you accuse specific political foes of being pedophiles or Satanists or whatever, you will risk a civil suit for libel or defamation, but absent credible threats and/or concrete actions to harm someone, you will not face criminal prosecution.)

Bribery, Insider trading. Identity theft and selling state secrets to foreign governments are other examples of crimes committed via speech.

One of the reasons people get confused about what free speech is and what it isn’t is the fact that “speech”–that is, transmission of a message– can be accomplished without words. (The legalese is “symbolic speech.”)

Burning a flag (assuming you own that flag and you aren’t violating a dry weather “no burning” ordinance) is protected by the First Amendment, because the whole purpose of that act is to send a message that the burner disapproves of the country. It’s a message that angers a lot of people, but that doesn’t justify government punishing it.

Nazis marching in Skokie, Illinois or Charlottesville, Virginia are sending an equally clear message, even without the latter’s accompanying chants. We all know what that message is, and–again, absent violence, vandalism or other hooliganism–it’s protected by the First Amendment.

The text of the Trump Indictment acknowledged that his lies were protected speech. Whether he believed them or not is irrelevant–so long as he was only posting his crazed diatribes and screaming about the election being rigged, the First Amendment protected him. Once he took concrete actions to overturn the results of the election and remain in power, however, the Free Speech clause no longer applied.

I’ve read several columns by people who should know better, gravely opining that prosecutors will have to establish whether Trump actually believed the garbage he was spewing, and noting that making such a showing is difficult. Those writers need to re-take  high school civics. As a better-educated pundit noted, I may be genuinely convinced that I am entitled to your car, but stealing it is still a crime.

Trump’s MAGA defenders can scream about the Department of Justice “criminalizing” Free Speech,  but those protestations will only sound plausible to people who slept through their high school government class.

This whole debate proves my point about the deplorable level of Americans’ civic literacy.

 

 

The Challenges Of Modern Life

Constitution, Free Speech, , , ,

The Supreme Court’s docket this year has two cases that will require the Court to confront a thorny challenge of modern life–to adapt (or not) to the novel realities of today’s communication technologies.

Given the fact that at least five of the Justices cling to the fantasy that they are living in the 1800s, I’m not holding my breath.

The cases I’m referencing are two that challenge Section 230, social media’s “safe space.”

As Time Magazine explained on February 19th,

The future of the federal law that protects online platforms from liability for content uploaded on their site is up in the air as the Supreme Court is set to hear two cases that could change the internet this week.

The first case, Gonzalez v. Google, which is set to be heard on Tuesday, argues that YouTube’s algorithm helped ISIS post videos and recruit members —making online platforms directly and secondarily liable for the 2015 Paris attacks that killed 130 people, including 23-year-old American college student Nohemi Gonzalez. Gonzalez’s parents and other deceased victims’ families are seeking damages related to the Anti-Terrorism Act.

Oral arguments for Twitter v. Taamneh—a case that makes similar arguments against Google, Twitter, and Facebook—centers around another ISIS terrorist attack that killed 29 people in Istanbul, Turkey, will be heard on Wednesday.

The cases will decide whether online platforms can be held liable for the targeted advertisements or algorithmic content spread on their platforms.

Re-read that last sentence, because it accurately reports the question the Court must address. Much of the media coverage of these cases misstates that question. These cases  are not about determining whether the platforms can be held responsible for posts by the individuals who upload them. The issue is whether they can be held responsible for the algorithms that promote those posts–algorithms that the platforms themselves developed.

Section 230, which passed in 1996, is a part of the Communications Decency Act.

The law explicitly states, “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,” meaning online platforms are not responsible for the content a user may post.

Google argues that websites like YouTube cannot be held liable as the “publisher or speaker” of the content users created, because Google does not have the capacity to screen “all third-party content for illegal or tortious materia.l” The company also argues that “the threat of liability could prompt sweeping restrictions on online activity.”

It’s one thing to insulate tech platforms from liability for what users post–it’s another to allow them free reign to select and/or promote certain content–which is what their algorithms do. In recognition of that distinction, in 2021, Senators Amy Klobuchar and Ben Ray Lujan introduced a bill that would remove tech companies’ immunity from lawsuits if their algorithms promoted health misinformation.

As a tech journalist wrote in a NYT opinion essay,

The law, created when the number of websites could be counted in the thousands, was designed to protect early internet companies from libel lawsuits when their users inevitably slandered one another on online bulletin boards and chat rooms. But since then, as the technology evolved to billions of websites and services that are essential to our daily lives, courts and corporations have expanded it into an all-purpose legal shield that has acted similarly to the qualified immunity doctrine that often protects policeofficers from liability even for violence and killing.

As a journalist who has been covering the harms inflicted by technology for decades, I have watched how tech companies wield Section 230 to protect themselves against a wide array of allegations, including facilitating deadly drug sales, sexual harassment, illegal arms sales and human trafficking — behavior that they would have likely been held liable for in an offline context….

There is a way to keep internet content freewheeling while revoking tech’s get-out-of-jail-free card: drawing a distinction between speech and conduct.

In other words, continue to offer tech platforms immunity for the defamation cases that Congress had in mind when Section 230 passed, but impose liability for illegal conduct that their own technology enables and/or promotes. (For example, the author confirmed that advertisers could easily use Facebook’s ad targeting algorithms to violate the Fair Housing Act.)

Arguably, the creation of an algorithm is an action–not the expression or communication of an opinion or idea. When that algorithm demonstrably encourages and/or facilitates illegal behavior, its creator ought to be held liable.

It’s like that TV auto ad that proclaims “this isn’t your father’s Oldsmobile.” The Internet isn’t your mother’s newspaper, either. Some significant challenges come along with the multiple benefits of modernity– how to protect free speech without encouraging the barbarians at the gate is one of them.

 

 

Ron “Contempt For The Constitution” DeSantis

Constitution, Free Speech, , ,

Yesterday’s blog post noted that Florida man Ron DeSantis is a favorite of the New Right. A recent judicial opinion, striking down one of his many outrageous attacks on the Constitutional rights of Florida citizens explains why.

A federal judge on Thursday halted a key piece of the “Stop-WOKE” Act touted by Republican Gov. Ron DeSantis, blocking state officials from enforcing what he called a “positively dystopian” policy restricting how lessons on race and gender can be taught in colleges and universities.

The 138-page order from Chief U.S. District Judge Mark Walker is being heralded as a major win for campus free speech by the groups who challenged the state.

Among other “dystopian” provisions of DeSantis’ anti-woke law were rules about what university professors could–and could not–say in the classroom. As the Judge noted in his opinion, the law gave the state “unfettered authority to muzzle its professors in the name of ‘freedom.'”

Florida legislators passed DeSantis’ “Individual Freedom Act” earlier this year (a label reminiscent of George W. Bush’s anti-environmental “Blue Skies” Act..). The law prohibits schools and private companies from

leveling guilt or blame to students and employees based on race or sex, takes aim at lessons over issues like “white privilege” by creating new protections for students and workers, including that a person should not be instructed to “feel guilt, anguish, or any other form of psychological distress” due to their race, color, sex or national origin.

The judge ruled that such policies violate both First Amendment free speech protections and 14th Amendment due-process rights on college campuses.

The law officially bans professors from expressing disfavored viewpoints in university classrooms while permitting unfettered expression of the opposite viewpoints,” wrote Walker. “Defendants argue that, under this Act, professors enjoy ‘academic freedom’ so long as they express only those viewpoints of which the State approves. This is positively dystopian.”

This particular lawsuit challenged the application of the anti-Woke law to colleges and universities; other pending challenges assert that the law is illegal and unconstitutional when applied to  K-12 schools and to the workplace.

In a column discussing the law and the ruling, Jennifer Rubin noted,

The law, for example, bars discussion of the concept that a person “by virtue of his or her race, color, national origin, or sex should be discriminated against or receive adverse treatment to achieve diversity, equity, or inclusion.” During oral arguments, when asked if this would bar professors from supporting affirmative action in classroom settings, attorneys for the state government answered, “Your Honor, yes.”

Walker cited that admission, finding:

Thus, Defendants assert the idea of affirmative action is so “repugnant” that instructors can no longer express approval of affirmative action as an idea worthy of merit during class instruction. … What does this mean in practical terms? Assuming the University of Florida Levin College of Law decided to invite Supreme Court Justice Sonia Sotomayor to speak to a class of law students, she would be unable to offer this poignant reflection about her own lived experience, because it endorses affirmative action.

The law so blatantly violates the concept of free speech that one wonders if remedial constitutional education should be a requirement for Florida officeholders.

No wonder the so-called intellectuals of the New Right see DeSantis as one of their own. He has consistently used his position and the power of the state to suppress the expression of views he dislikes. Rubin reminds readers of DeSantis’ “don’t say gay” law, his statute banning “critical race theory” in schools and his attempt to fire an elected county prosecutor who criticized his abortion policies. To which I would add his attacks on voting rights and his (successful) gerrymandering efforts.

DeSantis has also regularly flexed his power as governor: excluding media from events, taking public proceedings behind closed doors (including the selection of the University of Florida’s president) and exacting revenge on supposedly woke corporations such as Disney.

DeSantis’s contempt for dissent and his crackdown on critics should not be discounted. This is the profile of a constitutional ignoramus, a bully and a strongman. Voters should be forewarned.

DeSantis, Trump and the New Right sure don’t look anything like the libertarian, limited-government GOP I once knew…The only part of Rubin’s critique with which I disagree is her labeling of DeSantis as a “constitutional ignoramus.” It’s much worse than that.

Unlike Trump, who is an ignoramus, DeSantis knows better. He just doesn’t care.

 

That Misunderstood First Amendment

Education / Youth, Free Speech, ,

I know that my constant yammering about the importance of civic education can seem pretty tiresome –especially in the abstract–so I was initially gratified to read a Brookings Institution article focusing on a very tangible example.

Emerging research confirms the damage being done by misinformation being disseminated by social media, and that research has led to a sometimes acrimonious debate over what can be done to ameliorate the problem. One especially troubling argument has been over content that isn’t, as the article recognizes, “per se illegal” but nevertheless likely to cause significant. harm.

Many on the left insist digital platforms haven’t done enough to combat hate speech, misinformation, and other potentially harmful material, while many on the right argue that platforms are doing far too much—to the point where “Big Tech” is censoring legitimate speech and effectively infringing on Americans’ fundamental rights.

There is considerable pressure on policymakers to pass laws addressing the ways in which social media platforms operate–and especially how those platforms moderate incendiary posts. As the article notes,  the electorate’s incorrect beliefs about the First Amendment add to “the political and economic challenges of building better online speech governance.”

What far too many Americans don’t understand about freedom of speech–and for that matter, not only the First Amendment but the entire Bill of Rights–is that the liberties being protected are freedom from government action. If the government isn’t involved, neither is the Constitution.

I still remember a telephone call I received when I directed Indiana’s ACLU. A young man wanted the ACLU to sue White Castle, which had refused to hire him because they found the tattoos covering him “unappetizing.” He was sure they couldn’t do that, because he had a First Amendment right to express himself. I had to explain to him that White Castle also had a First Amendment right to control its messages. Had the legislature or City-County Council forbid citizens to communicate via tattooing, that would be government censorship, and would violate the First Amendment.

That young man’s belief that the right to free speech is somehow a free-floating right against anyone trying to restrict his communication is a widespread and pernicious misunderstanding, and it complicates discussion of the available approaches to content moderation on social media platforms. Facebook, Twitter and the rest are, like newspaper and magazine publishers, private entities–like White Castle, they have their own speech rights. As the author of the Brookings article writes,

Nonetheless, many Americans erroneously believe that the content-moderation decisions of digital platforms violate ordinary people’s constitutionally guaranteed speech rights. With policymakers at all levels of government working to address a diverse set of harms associated with platforms, the electorate’s mistaken beliefs about the First Amendment could add to the political and economic challenges of building better online speech governance.

The author conducted research into three related questions: How common is this inaccurate belief? Does it correlate with lower support for content moderation? And if it does, does education about the actual scope of First Amendment speech protection increase support for platforms to engage in content moderation?

The results of that research were, as academics like to say, “mixed,” especially for proponents of more and better civic education.

Fifty-nine percent of participants answered the Constitutional question incorrectly, and were less likely to support decisions by platforms to ban particular users. As the author noted, misunderstanding of the First Amendment was both very common and linked to lower support for content moderation. Theoretically, then, educating about the First Amendment should increase support for content moderation.

However, it turned out that such training actually lowered support for content moderation-(interestingly, that  decrease in support was “linked to Republican identity.”)

Why might that be? The author speculated that respondents might reduce their support for content moderation once they realized that there is less legal recourse than expected when they find such moderation uncongenial to their political preferences.

In other words, it is reasonable to be more skeptical of private decisions about content moderation once one becomes aware that the legal protections for online speech rights are less than one had previously assumed. …

 Republican politicians and the American public alike express the belief that platform moderation practices favor liberal messaging, despite strong empirical evidence to the contrary. Many Americans likely hold such views at least in part due to strategically misleading claims by prominent politicians and media figures, a particularly worrying form of misinformation. Any effort to improve popular understandings of the First Amendment will therefore need to build on related strategies for countering widespread political misinformation.

Unfortunately, when Americans inhabit alternative realities, even civic education runs into a wall….