Published: Fri, 02 Dec 2016 00:00:00 -0500
Last Build Date: Fri, 02 Dec 2016 21:41:13 -0500
Fri, 02 Dec 2016 10:40:00 -0500Note: If you live in the Washington, D.C. area, please come to this event about "free speech in the age of Trump" at the Cato Institute featuring me and Flemming Rose, publisher of the "Mohammad cartoons," on Tuesday, December 6 at 6 P.M. Scroll down for more details and RSVP information. President-elect Donald Trump was pretty damn awful on the campaign trail when it came to free-speech issues. He said he wanted to "open up" libel laws so he would have an easier time going after newspapers that he claimed wrote "wrong" things about him. In a particularly disturbing 24-hour period last December, both he and Hillary Clinton not only called for Internet censorship as a means of combating radical Islam, they specifically gave the stink-eye to anyone talking about constitutional rights. "You are going to hear all the familiar complaints: 'Freedom of speech,'" said Clinton. "Somebody will say, 'Oh freedom of speech, freedom of speech.' These are foolish people," said Donald Trump. More recently, of course, Trump has inveighed against flag burners, saying they should not only be put in jail for a year but stripped of their citizenship. Although his supporters routinely claim he doesn't mean what he says (don't take him literals, lulz!), he's about to become the goddamn president of the United States and words—like ideas and eating dessert every night—have consequences. So I share Robby Soave's concern that Trump, who introduced his presidential campaign by invoking the stultifying effects of political correctness, might well be worse on a range of free-speech issues than campus leftoids. (True to form of many people who invoke the horrors of PC, Trump then immediately proceeded to call Mexicans rapists, drug-and-disease carriers, etc.) The irony of all this is that Trump has benefited mightily from the much-and-unfairly maligned Citizens United decision, which involved advertising a documentary critical of Hillary Clinton and dates back to a previous election cycle. That decision and others related to it have loosened the amount of government control over specifically political speech, weakening the ability of the political establishment to direct the flow of money and messages. Social media (can we just start calling it media already?) and othr technological innovations have helped blowhards everywhere to speak often and effectively. Trump's willingeness to literally and figuratively shut down speech and expression with which he disagrees is of a piece with a lot of his thinking: He's for whatever works for him but he's not necessarily willing to extend the same rules or policies to other people. Or, perhaps worse, he doesn't think in terms of broad principles and general rules. Like an aristocrat at a king's court, he likes a world in which special deals are constantly being made and remade based on proximity to power, money, and so on. From his first foray into Manhattan real estate, which involved a massive and historic tax-abatement from the city of New York to his unabashed love of eminent-domain abuse for the benefit of private developers, that's how he rolls. Let's assume Trump is true to his campaign blurts when it comes to speech. Fact is, as president he can't really do much about libel laws, even as he can roll an always-already pliant press, and he's so clueless about the Internet that he suggested tapping Bill Gates, head of a company that struggled to shift into online space, as the man for the job of locking down cyberspace. Even if he tries to suppress speech and expression he doesn't like, the real question is whether he or anyone else will be effective. My short answer? There are many serious and important threats to free speech in America but by and large they emanate not from politics or policy per se but from cultural attitudes and social mores. In any society, individuals consciously and unconsciously subscribe to norms that limit acceptable behavior. Actual free expression, especially in the cultural sphere, is relatively recent—it didn't really come online until the 1960s. With the advent of the [...]
Fri, 02 Dec 2016 09:20:00 -0500
(image) Mark Twain's The Adventures of Huckleberry Finn was first published in 1884 and first banned in 1885 by authorities in Concord, Mass., who called it "trash and suitable only for the slums."
Harper Lee's To Kill a Mockingbird was first published in 1960 and first pulled from shelves in 1966, when the Hanover, Va. school board, still struggling with the concept of racially integrated schools, objected to the use of rape as a plot device.
In 2016, both classics—long staples of school curriculuums—are one again too hot for youthful consumption, at least in one school Virginia school district.
Accomack County Public Schools have temporarily pulled both novels from their libraries in accordance with the school district's policy after a parent files a formal complaint using a "Request for Reconsideration of Learning Resources" form. In this case, one parent objected to both books' combined 250 uses of a racial slur, according to WTVR-TV.
Delmarva Daily Times reports Marie Rothstein-Williams, a white parent of a biracial high school student first raised objections to the books' presence in school libraries and classrooms at a school board meeting last month, saying:
I keep hearing 'This is a classic, this is a classic.' I understand this is a literature classic but at some point I feel the children will not or do not truly get the classic part, the literature part — which I'm not disputing this is great literature — but there is so much racial slurs in there and offensive wording that you can't get past that.
WTVR also quotes Rothstein-Williams as saying, "Right now, we are a nation divided as it is." Another Accomack County parent reportedly worried that because the slur can be found at a book in their school, students will "feel that they are able to say that to anybody" and thus the books should be removed.
Once a formal complaint is lodged, the review process convenes as follows:
A review committee consisting of the principal, the library media specialist, the classroom teacher (if involved), a parent and/or student, and the complainant will convene. Materials cited in the complaint will be temporarily suspended for use pending determination by the committee.
No date has been set to begin the review. In the meantime, Accomack County students will not be subjected to reading two books containing language deliberately meant to provoke strong feelings in readers by challenging the racial oppression of their times, and thus unable to engage in the critical thinking great literature demands.
Thu, 01 Dec 2016 11:20:00 -0500Sen. Bob Casey (D-PA) and Sen. Tim Scott (R-SC) have introduced the Anti-Semitism Awareness Act which according to a statement on Casey's website is meant to "to ensure the U.S. Department of Education (DOE) has the necessary statutory tools at their disposal to investigate anti-Jewish incidents" on college campuses. Citing a recent FBI report stating over half of all reported hate crimes in 2015 were of an anti-Semitic nature, the senators claim their bill is necessary to provide the DOE with the "firm guidance" it needs to determine "what constitutes anti-Semitism." Seemingly shoe-horned into the end of the senators' statement is this line: This act is not meant to infringe on any individual right protected under the First Amendment of the Constitution. That's a relief, because someone reading the details of the bill who possesses a basic understanding of constitutionally protected speech would likely see it differently. Although prosecuting offensive ideas and retrograde views as "hate crimes" doesn't eradicate bigotry but merely adds a component of vengeance and contributes to identity tribalism, the bill's inclusion of "calling for, aiding, or justifying the killing or harming of Jews" is difficult to argue against (although "calling for" and "aiding" the killing or harming of anyone is already illegal). The bill's definition of "anti-Semitism" is directly culled from a 2010 State Department memo, which The University of California Board of Regents considered adopting as official policy, before ultimately agreeing to a softer condemnation of "Anti-Semitism, anti-semitic forms of anti-Zionism," but not a blanket ban on anti-Zionist expression itself. There was also a push by New York state lawmakers to ban anti-Zionist speech on City University of New York (CUNY) campuses, but the bill died in the legislature before it could be voted on. Unfortunately, the bill also proposes the following as examples of hate crimes: Accusing the Jews as a people, or Israel as a state, of inventing or exaggerating the Holocaust Demonizing Israel by blaming it for all inter-religious or political tensions Judge Israel by a double standard that one would not apply to any other democratic nation While holding such a view is stupid and objectionable, Holocaust denial is legal in the United States. Likewise, politically "demonizing" Israel and unfairly holding Israel to a "double standard" are thankfully legal, just as a pro-Israel speaker expressing an opinion blaming all of the tumult in the Middle East on Arab Muslims would be. That's how free speech works. The government doesn't get to judge the validity of thought, no matter how offensive it is to certain sensibilities. NOTE: This post was updated to clarify the University of California's statement.[...]
Thu, 01 Dec 2016 00:01:00 -0500"If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion." — U.S. Supreme Court Justice Robert H. Jackson Is flag burning protected speech? This old issue returned front and center earlier this week after President-Elect Donald Trump tweeted that he found it so reprehensible, it should be criminal. He even suggested a punishment — loss of citizenship or one year in jail. Is the president-elect correct? Can the government punish acts that accompany the expression of opinions because the government, or the public generally, hates or fears the opinions? Here is the backstory. Last weekend, in a series of continued emotional responses to the election of Donald Trump as president of the United States, and prodded by the death of Fidel Castro — the long-time, brutal, profoundly anti-American dictator of Cuba — students on a few American college campuses publicly burned American flags. These acts regenerated the generation-old debate about the lawfulness of this practice, with the president-elect decidedly on the side of those who condemn it. For the sake of this analysis, like the U.S. Supreme Court, which has addressed this twice in the past 17 years, I am addressing whether you can burn your own American flag. The short answer is: Yes. You can burn your flag and I can burn mine, so long as public safety is not impaired by the fires. But you cannot burn my flag against my will, nor can you burn a flag owned by the government. Before the Supreme Court ruled that burning your own flag in public is lawful, federal law and numerous state laws had made it criminal to do so. In analyzing those laws before it declared them to be unconstitutional, the Court looked at the original public understanding of those laws and concluded that they were intended not as fire safety regulations — the same statutes permitted other public fires — but rather as prophylactics intended to coerce reverence for the American flag by criminalizing the burning of privately owned pieces of cloth that were recognizable as American flags. That is where the former statutes ran into trouble. Had they banned all public fires in given locations, for public safety sake, they probably would have withstood a constitutional challenge. But since these statutes were intended to suppress the ideas manifested by the public flag burning, by making the public expression of those ideas criminal, the statutes ran afoul of the First Amendment. The First Amendment, which prohibits Congress from enacting laws infringing upon the freedom of speech, has consistently been interpreted in the modern era so as to insulate the public manifestation of political ideas from any government interference, whether the manifestation is by word or deed or both. This protection applies even to ideas that are hateful, offensive, unorthodox, and outright un-American. Not a few judges and constitutional scholars have argued that the First Amendment was written for the very purpose of protecting the expression of hateful ideas, as lovable or popular ideas need no protection. The Amendment was also written for two additional purposes. One was, as Justice Jackson wrote as quoted above, to keep the government out of the business of passing judgment on ideas and deciding what we may read, speak about or otherwise express in public. The corollary to this is that individuals should decide for themselves what ideas to embrace or reject, free from government interference. In the colonial era, the Founding Fathers had endured a British system of law enforcement that punished ideas that the King thought dangerous. As much as we revere the Declaration of Independence for its elevation of personal liberty over governmental orthodoxy, we are free today to reject those ideas. The Declaration and its values were surely rejected by King George III, who would have hanged its aut[...]
Wed, 30 Nov 2016 17:00:00 -0500Remember last year, when Reason got slammed with a subpoena and subsequent gag order from the U.S. attorney's office in the Southern District of New York? Yeah, well the guy whose John Hancock is on that grand jury subpoena—Preet Bharara—was hanging out with President-elect Donald Trump today. Bharara has "agreed to stay on" as Manhattan U.S. attorney under the Trump administration after kicking it with the future POTUS for 40 minutes in Trump Tower. "I expect that I will be continuing to work at the southern district," he told reporters. That's...just great. Here's what Reason wrote about the legal assault after the gag order was lifted: U.S. Attorney Preet Bharara subpoenaed all of the identifying information we had about the authors of such comments as, "Its (sic) judges like these that should be taken out back and shot." And, "Why waste ammunition? Wood chippers get the message across clearly. Especially if you feed them in feet first." This last comment is a well-known Internet reference to the Coen brothers' movie Fargo. The subpoena also covered such obviously harmless comments as: "I hope there is a special place in hell reserved for that horrible woman," and "I'd prefer a hellish place on Earth be reserved for her as well."... Reason's unmoderated comment space is rare among comparable publications and has, over the years, developed into a forum that is by turns exciting, intellectually advanced, outlandish, cringe-inducing, and more foul-mouthed than any locker room this side of the Crab Nebula. It is something to be celebrated as a voluntary community that can be engaged or ignored as the spirit moves you (we say that as writers whose work and physical shortcomings rarely escape unscathed from any thread). However trollish many of our commenters can be, they have created a sphere of free speech that delivers on one of the great promises of the Internet, which is unbridled expression, dialogue, and argument. We took risks by creating an autonomous zone in which our readers are left to their own devices. Some of the risk is reputational—how many other serious outlets allow anonymous commenters to run riot as we do? Some of the risk is legal, as in the current situation. Since the last webathon, over the past year alone, we have run 844,000 comments (just shy of 100 per hour). Suffice it to say, our speech—and our willingness to host yours—remains unchilled. That's because when it comes to defending the right of American citizens to say what we believe, Reason has no chill (as the kids say). At a time when sites from National Public Radio to News24 are closing down their comments sections—and some (cough, Vox, cough) never had them at all—Reason remains a glorious free-for-all. As Voltaire almost certainly did not say: We may not like what you say, but we will defend to the death Fist of Etiquette's "firsts," Heroic Mulatto's staunch pining for former Reason staffer Lucy Steigerwald, and everyone's frankly unhealthy interest in Robby Soave's grooming habits. But commenter freedom isn't free, is what I'm saying here. Given that The Donald and Bharara are besties now, maybe we need to bulk up our legal defense fund. So what better time to do your part to defray the (wildly outsized, utterly infuriating) costs of ill-advised Fargo references with a donation to our webathon? And if all that isn't enough, we brought back your nemesis/crush/former Reason Editor in Chief/famous commenter skeptic Virginia Postrel as a columnist in the dead tree magazine. (Subscribers get first crack at commenting on her stories. Just saying.) You're welcome.[...]
Tue, 29 Nov 2016 10:15:00 -0500As Jesse Walker noted this morning, Donald Trump thinks flag burning should be criminalized, notwithstanding two Supreme Court decisions saying such expressive activity is protected by the First Amendment. Both rulings were joined by Antonin Scalia, the late justice whom Trump says he wants to replace with someone similar. "Nobody should be allowed to burn the American flag," Trump tweeted. "If they do, there must be consequences—perhaps loss of citizenship or [a] year in jail!" Asked about the comment on CNN, Trump spokesman Jason Miller denied that such a policy would be unconstitutional. Flag burning "is terrible and it's despicable," Miller said. "It absolutely should be illegal." The idea that an act of protest could be offensive but nevertheless legal is apparently beyond Trump's limited understanding of the Constitution. But in the 1989 decision Texas v. Johnson, five members of the Supreme Court, including Scalia and Anthony Kennedy as well William Brennan, Thurgood Marshall, and Harry Blackmun, ruled that the First Amendment precluded criminal punishment of Gregory Lee Johnson for burning a U.S. flag during the 1984 Republican National Convention in Dallas. "Johnson was convicted for engaging in expressive conduct," Brennan wrote for the majority. "The State's interest in preventing breaches of the peace does not support his conviction because Johnson's conduct did not threaten to disturb the peace. Nor does the State's interest in preserving the flag as a symbol of nationhood and national unity justify his criminal conviction for engaging in political expression." The following year, in U.S. v. Eichman, the same five justices overturned the Flag Protection Act of 1989, which Congress passed in response to Johnson. "Government may create national symbols, promote them, and encourage their respectful treatment," Brennan wrote. "But the Flag Protection Act of 1989 goes well beyond this by criminally proscribing expressive conduct because of its likely communicative impact. We are aware that desecration of the flag is deeply offensive to many. But the same might be said, for example, of virulent ethnic and religious epithets, vulgar repudiations of the draft, and scurrilous caricatures [all of which the Court had deemed protected by the First Amendment]. 'If there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.' Punishing desecration of the flag dilutes the very freedom that makes this emblem so revered, and worth revering." Scalia later cited the flag burning cases to illustrate how his textualist approach to constitutional interpretation sometimes led him to rule against his personal inclinations. "If it were up to me, I would put in jail every sandal-wearing, scruffy-bearded weirdo who burns the American flag," he said in a speech last year. "But I am not king." The idea that justices should not simply vote according to their tastes or policy preferences seems foreign to Trump, who in a debate with Hillary Clinton last month promised that "the justices that I'm going to appoint will be pro-life" and will therefore vote to overturn Roe v. Wade. Not that Clinton, despite her legal training and years in public office, was necessarily preferable to Trump on constitutional grounds. She also seemed to view justices as legislators in black robes, arguing that they have an obligation to "represent all of us," oppose "powerful corporations and the wealthy," and stop "dark, unaccountable money" from "distorting our democracy." Clinton even tried to ban flag burning after the Supreme Court had ruled against such laws twice. Like Trump, she thought a year in jail would be an appropriate punishment. Then again, Clinton did not suggest that flag burners should lose their citizenship—a penalty the Supreme Court has said Congress is not authori[...]
Tue, 29 Nov 2016 09:15:00 -0500
Caudillo-elect Donald Trump got ahold of his phone again this morning:
Nobody should be allowed to burn the American flag - if they do, there must be consequences - perhaps loss of citizenship or year in jail!— Donald J. Trump (@realDonaldTrump) November 29, 2016
In 1989, the U.S. Supreme Court ruled—rightly—that the First Amendment does not allow the government to ban desecration of the flag. It isn't unusual for politicians, especially some of the more nakedly authoritarian politicians, to call for reversing that. But I think this might be the first time one has suggested that flag-burners should lose their citizenship. Flags may be a symbol of national identity, but that's taking things kind of literally.
This doesn't tell us anything new about Trump's character or worldview. We already knew that he's a nationalist, that he's often hostile to civil liberties, that he loves the sort of purely symbolic politics that play well on talk radio, and that he's prone to floating dumb ideas on Twitter. We also know he'd rather be debating the sanctity of the flag than debating whether he should liquidate his assets, so I understand the temptation to treat this as a wag-the-dog gambit and ignore it.
But he's the president-elect now; it isn't practical to just ignore what he says. This might not tell us anything we didn't already know about where Trump is coming from, but it certainly drops a hint about where he's heading. That tweet could be a passing brain-fart; it could also be his next crusade. Be prepared.
Bonus link: The U.S. Flag Code. If you take Trump literally—usually a mistake, I know—he'd outlaw §176(k): "The flag, when it is in such condition that it is no longer a fitting emblem for display, should be destroyed in a dignified way, preferably by burning."
Mon, 28 Nov 2016 09:36:00 -0500At the top of every list (including Reason's) of idiotic and ahistorical eulogies for Fidel Castro is Justin Trudeau's. The Canadian prime minister, himself the son of a former prime minister, filled his encomium with bland phrasing that tap-danced around tbe brutality and terror that characterized Castro's reign: "Fidel Castro was a larger than life leader who served his people for almost half a century.... "While a controversial figure, both Mr. Castro's supporters and detractors recognized his tremendous dedication and love for the Cuban people who had a deep and lasting affection for "el Comandante". "I know my father was very proud to call him a friend and I had the opportunity to meet Fidel when my father passed away. It was also a real honour to meet his three sons and his brother President Raúl Castro during my recent visit to Cuba." For more awful official responses to Castro's death, as curated by Anthony Fisher, go here. Of course, in an age of social media, Trudeau was mocked immediately and for hours, spawning two ironic hashtages, #trudeaueulogy and #trudeaueulogies, which pushed the Candadian's logic to absurdist degrees. A sampling, compiled by Elias Toufexis: We can make too much of the leveling power of a platform that allows the many to speak back to the mighty directly and publicly. Despite having been used in all sorts of incredible ways in tense political situations, Twitter and other forms of social media don't overturn existing power structures in any obvious, clear, and definitive ways. As with most forms of dissent—or, more accurately, most forms of free-er and more-open speech—new platforms create some space and then get appropriated or become domesticated as the existing power structure and its chieftains move in (remember what a big deal it was when Hillary Clinton finally joined Twitter?). Yet as Bill Cosby, whose attempt to generate #CosbyMemes on Twitter just as rape charges against him were coming out ended in disaster, could tell you, the audience is more active, engaged, and empowered then ever. There was a time in the near-past when the audience's power over the messages sent its way was much more limited. Reacting either as a person of a group took a lot more time, energy, coordination, and courage. To that extent that political and social change is predicated upon free speech and free assembly (both in cyber- and meatspace), we're in a much-better place than we were just a few decades ago. About the only public figure that doesn't get a firehose of abuse when they act or speak poorly is the Dalai Lama (give it time, people). In both repressive societies (such as Castro's Cuba) and open ones (such as Canada and the United States) social media has made it far easier to speak to power and throw in a few jokes as well. Such as these from Reasoners: "Saruman, an inventor and humanist, modernized Rohan's economy. A multiculturalist, he improved relations with orcs." #trudeaueulogies — Robby Soave (@robbysoave) November 26, 2016 Yes, Fidel Castro murdered, tortured, and imprisoned thousands, but unlike Donald Trump he never attacked Rosie O'Donnell #trudeaueulogies — Nick Gillespie (@nickgillespie) November 27, 2016 These may be small victories or tiny bubbles of dissent, but it's great that platforms such as Twitter, Facebook, and the web more broadly, are out there. For all their many limitations, more speech is not only better, it's harder and harder to control. For more on "the audience's power over media's message," go here for a view from the late-1990s. Technologies and platforms that disperse control over and access to speech are central to the ongoing Libertarian Moment, in which all of us are increasingly able to individualize and personalize more aspects of our lives and to pursue happiness as we see fit. Read more about that here.[...]
Wed, 23 Nov 2016 08:20:00 -0500Under a little-heralded new Alabama rule, it's illegal to publish the mugshots of people arrested for prostitution. Alabama law now stipulates that these mugshots are "not a public record and may not be published in any printed or electronic media or provided to any person" without special permission from a district judge. "We're trying to look at these women less as criminals and more as victims, and we don't want to see them be revictimized," said Rep. Jack Williams (R-Birmingham), who sponsored the legislation. I've railed many times against the journalistic practice of publishing the mugshots of people arrested for prostitution or solicitation of prostitution. Considering the stigma surrounding prostitution, I think any "public interest" served in seeing the faces of those merely arrested for this misdemeanor offense is generally outweighed by the long-term damage it could do—especially in the Internet era—to the the lives and reputations of these individuals. But the decision whether to publish prostitution mugshots, or any mugshots, should be matter of journalistic ethics, not government mandate. If Alabama lawmakers really believe that all people selling sex are victims, perhaps they should repeal laws that make selling sex a crime. But as long as prostitution is a crime in Alabama, there's no justifying a categorical ban on publishing prostitution-arrest mugshots. As Alabama Press Association lawyer Dennis Bailey said, "It's a very blatant form of prior restraint," which is unconstitutional. What's especially strange here is that law passed the state legislature in May and took effect August 1, but newspaper editors say they are just hearing about the measure now. This seems like a pretty big oversight on both the part of state officials and Alabama journalists, who covered the legislation that the mugshot-ban was part of but apparently failed to notice that particular part. Meanwhile, officials failed to specify what, if any, punishment could come from violating the ban. The main focus of the legislation, known as the Alabama Human Trafficking Safe-Harbor Act, was allowing law-enforcement to decline criminal charges for minors engaged in prostitution, and instead refer them to social services or state custody. Alabama police arrested three minors for prostitution in 2015, according to the Anniston Star, which reviewed statewide arrest data. "It's unclear whether any of the children were actually charged with the crime," the paper reported, "or whether police knew they were underage at the time of the arrest." Not charging juveniles for selling sex, whether on their own or under force or coercion, is certainly a positive step. But the legislation contains a lot of language that suggests, arrest or no arrest, these young people aren't simply being seen as victims. For instance: "Once the sexually exploited child is adjudicated, the juvenile court shall retain jurisdiction over the sexually exploited child and may enforce prior orders requiring payment of court-ordered monies." Beyond that, the "Safe Harbor Act" is packed with worrying components unrelated to minors, in addition to the mugshot ban. Most alarmingly, it allows adults arrested for prostitution to be held for up to 72 hours so law-enforcement can screen them for mental-health issues, financial status, living arrangements, and who knows what else, before deciding whether to bring charges or send them to a pre-trial diversion program. Here's the relevant passage: For the safety and well-being of a person arrested for the crime of prostitution under Division 2, Article 3, Chapter 12, Title 13A, Code of Alabama 1975, he or she may be held in custody for up to 72 hours. The person shall be brought before a court of competent jurisdiction as soon as possible within a 48-hour period to conduct an inquiry into the person's access to resourc[...]
Tue, 22 Nov 2016 04:00:00 -0500
(image) The superintendent of the Lincoln, Nebraska, school system has apologized after administrators told students not to fly the American flag on their vehicles. The students had flown the flags from holders they'd made in class in a joint program with Southeast Community College. Someone took the flag off a truck parked at the college and laid it in the bed of another truck. Administrators said they were afraid allowing the students to fly the flags might lead to a confrontation or property damage.
Mon, 21 Nov 2016 17:45:00 -0500
(image) California's senator-elect, Kamala Harris, staked out the repeal of Citizens United as one of her priorities when she enters office, tweeting that it had to be repealed "because we know Citizens United really means Citizens Divided."
The rhetoric is worthy of President-elect Donald Trump, who has a habit of insisting criticism of him is unfair. Repealing Citizens United would make it more difficult for corporations and other organized groups to exercise their free speech in the political realm.
Liberal opponents of Citizens United should have had enough examples over the last year or so to rethink their reflexive position on the Supreme Court case. From the corporations organizing boycotts and speaking out against North Carolina's LGBT discrimination law to the candy companies that spoke out against Trump, it ought to be clear that corporate free speech doesn't track with the stereotypes peddled by the left. Citizens United also made films like Michael Moore's anti-Trump Trumpland possible to release just weeks before the election—as it should be in a country that says it values free speech.
Hillary Clinton, the subject of the film that was at the center of Citizens United, called the case "tragic," but Trump may not be much better. Some progressives believe he's on their side given his rhetoric about the influence of "big money" on politics. Forget that there's little evidence that campaign spending actually significantly influence electoral results, or that Clinton's failure to win despite a cash advantage provides a compelling anecdote against the idea that money drives electoral results—the presence of Donald Trump in the White House should give progressives who want to limit political speech cause to pause. Campaign spending restrictions are often used by the politicians in power to reinforce the incumbency advantage and squash dissent.
With a president-elect like Donald Trump who doesn't seem to understand freedom of the press, the protections offered by Citizens United, which covers not just large multinational corporations but newspapers and non-profit corporations as well ought to be reinforced, not attacked for perceived short-term political gain.
Thu, 17 Nov 2016 15:35:00 -0500At a joint press conference in Berlin earlier today, President Obama and Germany Chancellor Angela Markel blamed the internet and digitizationon making a "clash of cultures" more direct and instilling uncertainty in people about their identities and economic security. Merkel suggested the internet and digitization would have to be regulated like the printing press or industrialization in order to limit its disruptive effects. "It led to enormous transformational processes within individual societies," Merkel noted. "It took a while until societies learned how to find the right kind of policies to contain this and to manage and steer this," Merkel said. The printing press was easily the most disruptive technology in the history of Western civilization. Since its invention in the 1440s and subsequent widespread use, the ability to mass produce printed material has helped foment social and political revolutions around the world. The printing press created the opportunity for communication on a scale never seen before. It helped populations around the world to self-radicalize—it's hard to imagine how the American revolution could have been sustained without a printing press and the ability that provided for colonists to share stories about imperial outrage and to convince each other of the necessity of revolution through pamphlets like Thomas Paine's Common Sense. When pro-slavery mobs wanted to shut down the work of the abolitionist Rev. Elijah Lovejoy, they destroyed his printing press, not once, not twice, but three times. The fourth time, he was killed trying to defend his newest printing press. The printing press helped movements like abolitionism to build a community organized around them. On a larger scale, printing presses, helped in the process of nation-formation, by making it possible to build imagined communities through the use of national newspapers, literature, and so on, as posited by Benedict Anderson in Imagined Communities. The printing press helped people build connections over vast distances of space, and time, fundamentally altering the pace of change in the world. It's not difficult to see similar forces unleashed by the internet, allowing people separated by long distances to find common cause with each other and build imagined communities of their own. In the aftermath of the presidential election, this gets called a "bubble." But the imagined ideological communities we build are only the most prominent now. I'd argue the rapid progress on gay rights was probably helped along by the internet making it easier for people to learn that they are not alone and better work for change. The same kind of imagined community-building is also happening across the political spectrum. The desire by the political class to control these processes is frightening but, as Merkel admitted, not new. Since the invention of the printing press, governments of all sorts have sought to control its use and influence. The first newspaper in the American colonies, for example, Publick Occurrences Both Foreign and Domestick, was shut down by the British imperial government less than a week after its first issue. After that, the British demanded newspaper publishers receive government permits. This was one of the reasons the framers of the Constitution included freedom of the press in the Bill of Rights. And yet even some of the people involved in drafting the Constitution, like John Adams, ended up pursuing policies when in power that stymied the freedom of speech. This year, both major party presidential nominees, Donald Trump and Hillary Clinton, called for shutting down portions of the internet to stop militant radicals from communicating with each other. Obama noted in the press conference, before Merkel's call for more speech r[...]
Wed, 16 Nov 2016 18:32:00 -0500It looked like the courts would once again save us from prosecutorial overreach aimed at web classified-ad site Backpage—and in so doing, reaffirm the protection under federal law and the First Amendment that's afforded third-party publishers of online content. On Wednesday morning, Sacramento County Superior Court Judge Michael Bowman indicated that he would reject California's case against Backpage CEO Carl Ferrer and two former site owners on charges of pimping, pimping a minor, and conspiracy. In a tentative ruling, Bowman agreed with the defense that the federal Communications Decency Act prohibits the charges aginst Ferrer and co-defendants Michael Lacey and James Larkin, who were all arrested in October. "Congress did not wish to hold liable online publishers for the action of publishing third party speech," he wrote. "Congress has spoken on this matter and it is for Congress, not this court, to revisit." The last sentence was bolded. Although Bowman could not issue a final ruling until after oral arguments, which were scheduled for Wednesday afternoon, he said that the final ruling come as early as that evening. And it did: Bowman now wants more info. According to Cheryl Miller of California legal newspaper The Recorder, the judge has now said he won't dismiss the pimping charges just yet and would like more briefings from both sides before deciding whether to make the tenative ruling final. The case against Ferrer and company was instigated by the California Department of Justice and led by state Attorney General Kamala Harris, who called Backpage "the world's top online brothel." Harris, a Democrat, just won a seat in the U.S. Senate. In October, former Backpage owners Lacey and Larkin accused her of bringing the charges against them as a pre-election publicity stunt. "Make no mistake; Kamala Harris has won all that she was looking to win when she had us arrested," the men alleged in a statement. "She issued her sanctimonious public statement, controlled her media cycle and got her 'perp walk' on the evening news. ... And if the polls are any indication, Harris will be warmly ensconced in the United States Senate by the time her blatant violations of the First Amendment and federal law are finally adjudicated. She won't pay. The taxpayers of California will." As I noted here then, Harris knew the charges she was bringing against Ferrer, Lacey, and Larkin were not permitted under federal law. In 2013, she petitioned Congress to change the law specifically so that she and other state attorneys general could prosecute Backpage owners. Which means her presence now in Congress doesn't bode well for Section 230 of the Communication Decency Act (CDA), the part that protects web publishers and platforms from criminal liability for user-generated content. For now, it looks uncertain whether Backpage—which has emerged victorious in several previous attempts by state prosecutors to go after it in unconstitutional ways—will be afforded the protections guaranteed under Section 230. "The importance of the protection afforded by the First Amendment was the motivating factor behind the creation of CDA," Bowman noted in his tentative ruling earlier today. While government has a legitimate interest in fighting sex trafficking, that interest "is not absolute," wrote Bowman, "and must be constrained by the interests and protections of the First Amendment to the U.S. Constitution." Bowman also pointed out in the tentative ruling that California criminal code defines pimping as living or deriving financial support from the earnings or proceeds of a person's prostitution, and "does not apply to an individual who provides a legitimate professional service to a prostitute even if paid with proceeds earned fr[...]
Wed, 16 Nov 2016 08:00:00 -0500During the presidential campaign, Rudy Giuliani argued (correctly) that Hillary Clinton could be charged with a federal felony for mishandling classified information through her sloppy email practices as secretary of state even if she did not intend to break the law. But there is also a strong case to be made that the former New York City mayor, who reportedly is in the running for attorney general or secretary of state in the Trump administration, committed multiple federal felonies by assisting Mujahedeen-e-Khalq (MEK), an Iranian opposition group that the State Department listed as a terrorist organization until September 2012. "My ties to them are very open," Giuliani, a former U.S. attorney, recently told The New York Times. "We worked very hard to get them delisted." But under the broad understanding of the federal ban on "material assistance" to terrorist groups that the Supreme Court upheld in 2010, that work was pretty clearly a crime punishable by up to 15 years in prison. The "material support" statute, 18 USC 2339B, prohibits the provision of "training," defined as "instruction or teaching designed to impart a specific skill"; "expert advice or assistance," defined as "advice or assistance derived from scientific, technical or other specialized knowledge"; "personnel," which means any person, including oneself, who works under the organization's "direction or control"; or any other "service," which is not defined at all. In Holder v. Humanitarian Law Project, the Supreme Court said the law covers volunteer work aimed at helping listed organizations resolve their grievances through nonviolent means. While such advice and advocacy would ordinarily be protected by the First Amendment, the Court said, "the government's interest in combating terrorism" justifies the speech restrictions imposed by the ban on material support. Notably, the Supreme Court refused to read the law as requiring an intent to further a terrorist organization's illegal activities. As long as someone knows he is assisting a "foreign terrorist organization" (FTO), it is no defense to say he only meant to promote its lawful activities. Giuliani, who "worked very hard to get [the MEK] delisted," obviously knew the group was considered an FTO. Nor is it necessary that someone providing material support to an FTO receive compensation in return, although Giuliani apparently was paid handsomely for his speeches on behalf of the MEK. According to the Court, the difference between protected and prohibited advocacy is not whether money changes hands; it's whether the advocacy is "performed in coordination with, or at the direction of, a foreign terrorist organization." By announcing that "my ties to [the MEK] are very open," then, Giuliani is effectively confessing to a crime. I am not saying Giuliani should go to prison for his efforts to rehabilitate the MEK. The State Department's list is arbitrary and shaped by political considerations, the MEK had a strong argument that it should no longer be considered an FTO, and in any case peaceful advocacy of lawful activities should never be treated as a crime. Knowingly providing material assistance to an FTO (which Giuliani did) is not necessarily the same as knowingly providing material assistance to terrorism. For the sake of fairness and freedom of speech, the law's mens rea requirement should be stronger. The same goes for 18 USC 793, which Clinton arguably broke by allowing classified information to be removed "from its proper place of custody" through "gross negligence," a felony punishable by up to 10 years in prison. A conviction under that law should require more than negligence, because it should not be possible to accidentally commit a crime. Tha[...]
Mon, 14 Nov 2016 07:30:00 -0500Given Donald Trump's well-earned reputation as a thin-skinned bully, it is sadly unsurprising that the president-elect's campaign manager would threaten to sue a political opponent for dissing the blowhard billionaire. That is what Kellyanne Conway seemed to do when she appeared on Fox News Sunday yesterday, even while denying any such intent. Conway was reacting to an overwrought press release in which Senate Minority Leader Harry Reid (D-Nev.) bemoaned Trump's victory, saying it "has emboldened the forces of hate and bigotry in America." In the part of Reid's statement that Fox News Sunday host Chris Wallace read to Conway, the retiring senator called Trump "a sexual predator who lost the popular vote and fueled his campaign with bigotry and hate." Here is the relevant part of Conway's response (emphasis added): I find Harry Reid's public comments and insults about Donald Trump and other Republicans to be beyond the pale. They're incredibly disappointing. Talk about not wanting my children to listen to somebody. And he should be very careful about characterizing somebody in a legal sense. He thinks—he thinks he's just being some kind of political pundit there, but I would say be very careful about the way you characterize it. By "characterizing somebody in a legal sense," Conway, who has a degree from George Washington University Law School and taught there for four years, clearly was referring to the epithet "sexual predator," which arguably implies that Trump is a criminal. Falsely accusing a person of a crime is considered libel per se, meaning that if Trump could prove that someone did so with "actual malice," he would not also have to prove that the statement injured him. One of Trump's lawyers made precisely that argument when he threatened to sue The New York Times for reporting the allegations of women who say he kissed or groped them without their consent. The implication was not lost on Wallace. "When you say 'in a legal sense,'" he asked Conway, "are you suggesting that Donald Trump might sue Harry Reid?" Perhaps realizing how ridiculous that would seem, Conway backtracked. "No, I'm not suggesting that at all," she said. "I'm calling for responsibility and maturity and decency [from] somebody who has held one of the highest positions in our government." Reid's office immediately capitalized on Conway's veiled threat. "It only took five days for President-elect Trump to try to silence his critics with the threat of legal action," Reid spokesman Adam Jentleson said in a statement on Sunday. "This should shock and concern all Americans. Trump has always used threats and intimidation to silence his critics. Now he wants to silence a discussion of the acts of hate and threats of violence being committed in his name across the country. Silencing this discussion normalizes hate and intimidates the victims." Reid is an awful hack, and his claims about a post-election hate crime wave are dubious at best. Yet by responding to his invective with a Trumpesque intimation of litigation, Conway managed to make him look like a brave truth teller.[...]