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Preview: Reason Magazine - Topics > Free Speech/First Amendment

Free Speech/First Amendment



All Reason.com articles with the "Free Speech/First Amendment" tag.



Published: Thu, 19 Apr 2018 00:00:00 -0400

Last Build Date: Thu, 19 Apr 2018 10:25:48 -0400

 



College Republicans Get In Huge Trouble for Posting 'I.C.E. I.C.E. Baby' Signs

Thu, 19 Apr 2018 10:15:00 -0400

The College Republicans at the University of California, Merced advertised their club last month with signs that read "I.C.E. I.C.E. Baby" and provided the phone number for Immigration and Customs Enforcement. Now the student government is considering defunding them and similar organizations, in part because College Republicans might use those funds to attend conservative conferences and spread hateful rhetoric on campus. The initial advertising campaign provoked a response from school administrators several days after the incident. The officials condemned the group's "bigoted and hateful" tactics but reminded students that "as nasty as the club's signs were, they are protected by the First Amendment." When the student legislature got wind of this, it released a statement saying it "would like to apologize to the student body for not taking a definitive stance against the violent actions from the College Republicans sooner." It continued: "Members of the senate believe that we should not tolerate or support any individual or organization that perpetuates hate speech on our campus. Direct endangerment of any kind should be condemned on this campus." If any students saw the I.C.E. phone number on the College Republicans' sign and did, in fact, call it to report an undocumented student who was then deported or questioned, that indeed be direct endangerment. But the reference to "hate speech" takes the statement in a different direction, veering toward the "words are violence" jargon that has become all too common on campuses. On March 21, the legislative branch of the student government released a statement lamenting the fact that another student government division––the Inter Club Council––granted funding to the CRs to attend the California College Republicans state convention, saying that the conference "will enable their organization to network with individuals that share their harmful views" and that those hateful sentiments would be brought back to the Merced campus. The College Fix reports that "Senators asked students to attend an April 4 Senate meeting to discuss 'financial bylaw changes that will prohibit student fees from funding partisan organizations on campus, a policy implemented on other UC campuses.'" This meeting was allegedly coupled with a discussion of the "formal timeline of the violent actions committed" by College Republicans, making it pretty clear that the discussion of withholding funds was related to the conduct of these conservative provocateurs. It's not clear how a prohibition on student fee funding for partisan organizations will be applied, or which organizations will be considered partisan––would a pro-choice group, for example, fall into that category? A genuinely neutral removal of student funds for all political organizations would be constitutionally acceptable, but any discrimination on the basis of a group's point of view could run into First Amendment problems. In an April 16 statement, the California College Republicans say they "view any attempt to defund CRUCM as an explicitly biased attack against conservative values and ideas....Any repercussive action by UC Merced student government or campus administration is an assault on First Amendment rights." They don't say whether they plan to take legal action if they lose their fees, but they're hinting that this issue won't be resolved quietly. This is, after all, the same litigious College Republicans chapter that threatened to sue their school when administrators quoted high security fees for bringing the right-wing pundit Ben Shapiro to campus. Fears of deportation, or of having their Dreamer or Temporary Protected Status (TPS) revoked, are real for many students. A call to I.C.E. from an antagonistic fellow student would be life-altering to some in UC-Merced's student body. But even shitty, loathsome speech is protected by the First Amendment. The more we equate words with violence, the easier it becomes to justify suppressing speech––and who would be in charge of drawing those boundaries for what type of speech is [...]



Fresno State Shouldn't Fire a Professor for Saying She's Glad Barbara Bush Died

Wed, 18 Apr 2018 13:53:00 -0400

In response to death of former First Lady Barbara Bush, a professor of English at Fresno State University tweeted, "I'm happy the witch is dead." Now a whole lot of people—including some occasional critics of political-correctness-run-amok on campus—think the university should fire her. The professor, Randa Jarrar, made the comments shortly after Bush's death at the age of 92. "Barbara Bush was a generous and smart and amazing racist who, along with her husband, raised a war criminal," wrote Jarrar. "Fuck outta here with your nice words." She later said she was "happy" Bush had died and couldn't wait for the rest of her family to "fall to their demise the way 1.5 million Iraqis have." Obviously, that's a loathsome thing to say. You can express opposition to the Iraq war without literally celebrating somebody's death. Nevertheless, Jarrar's comments are constitutionally protected speech. Fresno State is a public university, and its professors enjoy broad free speech protections. Students, other professors, and the broader Twitter community should feel free to vocalize their disapproval of her comments, but Jarrar shouldn't lose her job or be formally sanctioned by Fresno officials. Jarrar also posted a telephone number on Twitter, leading critics to believe it was hers. In reality, it was the line for Arizona State University's crisis hotline. This prank may present a stronger case for disciplinary action than the anti-Bush comment, though the latter is what everybody seems mad about. Fresno President Joseph Castro said in a statement that Jarrar's comments were "made as a private citizen, not as a representative of Fresno State," and "are obviously contrary to the core values of our University, which include respect and empathy for individuals with divergent points of view, and a sincere commitment to mutual understanding and progress." But this statement has not satisfied the many conservatives on Twitter who want Fresno to fire her. Disappointingly, The Daily Wire­—the conservative website run by Ben Shapiro—also seems to want something more from Fresno. The Daily Wire's Ryan Saavedra writes: The key line in Fresno State's statement is: "Her statements were made as a private citizen, not as a representative of Fresno State." That line most likely signals that the university is not going to take a hard stand over the hateful remarks from this professor who mocked the death of an American icon and rejoiced in the suffering of her family. I'm not sure what "hard stand" means, but since the university did in fact already denounce Jarrar's comment, I presume Saavedra wants something more: discipline, perhaps termination. It is incredibly hypocritical for The Daily Wire to encourage a university to fire a professor for saying something nasty and politically incorrect. In the past, Shapiro has rightly called out universities for catering to easily offended students and disinviting controversial speakers. Shapiro himself has occasionally faced angry campus mobs who wish to censor him. But if the offending party is a far-left professor and the offended party is conservatives everywhere, PC censorship is suddenly just fine? It's no wonder some liberals are skeptical of the so-called free speech crisis (a phenomenon I think is very real, even if it's sometimes overhyped). Too many conservatives act as if they're the only victims of campus censorship—and when someone on the left does something un-patriotic, they grab their own pitchforks.[...]



CUNY's Law Dean Is Wrong About the Attempted Shutdown of Josh Blackman

Tue, 17 Apr 2018 09:01:00 -0400

CUNY School of Law Dean Mary Lu Bilek called the recent student-led protest against conservative law professor Josh Blackman "limited and reasonable" and maintained that it did not violate university policy. The dean is dead wrong. She's wrong about the protest, and she's wrong about university policy. As I reported last week, Blackman—an associate professor at the South Texas College of Law—was attempting to speak to students at CUNY when a group of activists crashed the event, surrounded him, and heckled. They accused Blackman of a litany of unfounded crimes, labeling him a white supremacist, a racist, and an oppressor. The professor's controversial opinion is that he believes President Donald Trump was correct to end the Deferred Action on Childhood Arrivals (DACA) program, which permitted some illegal immigrants to remain in the country without fear of deportation. Blackman believes that DACA was enacted in a way that violated the rule of law, though he supports the DREAM Act, which would install a similar system in a different way. The student-activists made it impossible for Blackman to speak for about eight minutes, and after that they left. Bilek told Inside Higher Ed that since Blackman was only disrupted for the first 10 minutes of a 70-minute speech, his rights were not violated: "For the first eight minutes of the 70-minute event, the protesting students voiced their disagreements. The speaker engaged with them. The protesting students then filed out of the room, and the event proceeded to its conclusion without incident," Bilek said. "This non-violent, limited protest was a reasonable exercise of protected free speech, and it did not violate any university policy," she added. "CUNY Law students are encouraged to develop their own perspectives on the law in order to be prepared to confront our most difficult legal and social issues as lawyers promoting the values of fairness, justice, and equality." As The Volokh Conspiracy's David Bernstein points out elsewhere on this site, the dean is wrong—the students' behavior clearly violates university policy: Let's take a look at page 85 of the law school's student handbook: "II. Rules of the university (1-11) and law school (12). 1. A member of the academic community shall not intentionally obstruct and/or forcibly prevent others from the exercise of their rights. Nor shall she/he interfere with the institution's educational process or facilities, or the rights of those who wish to avail themselves of any of the institution's instructional, personal, administrative, recreational, and community services." Also this: "5. Each member of the academic community or an invited guest has the right to advocate his position without having to fear abuse—physical, verbal, or otherwise from others supporting conflicting points of view." The disruption didn't violate any university policy, Dean Bilek? Have your read the student handbook? Bilek also failed to note a key detail: The protest came to an abrupt end only because a university administrator stood up and said, in no uncertain terms, "You may not keep anyone from speaking. If you do, I have other things to do, I will be back. Or you can resolve this yourselves. Or you can have me resolve it." This provides more evidence for my thesis: When students, administrators, and professors stand up to hecklers and implore them to be quiet, an event can be saved.[...]



CUNY Students Tried to Shout Down Josh Blackman. Here's Why They Failed.

Thu, 12 Apr 2018 17:01:00 -0400

If you want to see a nearly perfect example of everything that's wrong with campus call-out culture these days, watch this video of Josh Blackman's attempt to deliver remarks at CUNY School of Law. Blackman, an associate professor at the South Texas College of Law in Houston, supported Donald Trump's decision to rescind Deferred Action for Childhood Arrivals (DACA), agreeing that Barack Obama exceeded his legal authority when he set up the program, which allows some immigrants who came to the country illegally as children to avoid deportation. But Blackman supports the DREAM Act, which would grant residency status to many of these same people. That distinction mattered little to the student activists who crashed Blackman's event last month, calling him a racist and white supremacist. Blackman was merely "gaslighting" them, they said. They accused CUNY of giving a platform to an oppressor. They tweeted, "My existence > your opinion." They heckled Blackman, making it impossible for him to deliver his prepared remarks. A productive conversation was possible only after the activists left the room, furious that the administration had threatened to discipline them. That's according to video footage and Blackman's write-up of the event for National Review. The entire post is worth reading. Instead of attempting to recap it, I will note a few aspects of the episode that will be familiar to readers who follow the debate about political correctness on campus: 1. "Hate speech isn't free speech" was one of the activists' mantras. Ironically, Blackman had intended to discuss free speech and the law. It's a shame students who are confused on this topic—who wrongly believe that the First Amendment does not protect hate speech, or that it shouldn't—were unwilling to be educated by a legal scholar. But this is an attitude I encounter on college campuses all the time. 2. Activists thought CUNY should have prevented the event from taking place for reasons of safety. Never mind that the only person whose safety was threatened by Blackman's presence was Blackman himself, who prior to the event formulated an exit strategy at the urging of a public safety administrator. The student activists believed the airing of an opinion with which they disagreed was tantamount to physical violence against marginalized communities. 3. A student of color in the audience who disagreed with Blackman nevertheless wanted the event to proceed and was looking forward to asking tough questions. For saying that, the student was branded a traitor to the revolution. "Why are you here?" one activist asked him. "Why aren't you with us?" The same thing happened at the University of Michigan when Charles Murray attempted to speak there last October: Murray's presence was deemed an attack on marginalized persons, although some of the people in his audience were marginalized persons who didn't feel attacked by the speech and in fact wanted to hear it. 4. Students showed remarkable contempt for the thing they are ostensibly studying: the law. This exchange was noteworthy: There were audible gasps in the room. "This might surprise you. I think the DREAM Act is a good piece of legislation." Someone yelled out "Gaslighting." I continued, "Were I a member of Congress..." Someone interrupted me. I said, "Let me speak, please." A number of students shouted out, "Nah." I continued, "Were I a member of Congress, I would vote for the DREAM Act. My position is that the policy itself was not consistent with the rule of law. Which teaches a lesson." Someone started snapping and booing. "The lesson is you can support something as a matter of policy." Someone shouted, "What about human rights?" I continued, "but find that the law does not permit it. And then the answer is to change the law." A student shouted out "F**k the law." This comment stunned me. I replied, "F**k the law? That's a very odd thing. You are all in law school. And it is a bizarre thing to say f**k the law when you are in law school.[...]



Bernie Sanders and Elizabeth Warren Want the FCC to Revoke Sinclair's Broadcast Licenses

Thu, 12 Apr 2018 14:40:00 -0400

How stupid is the panic over Sinclair Broadcast Group's hamfisted, "must-run" promotional video decrying "fake news"? This stupid: Yesterday 12 senators, including reported presidential aspirants Bernie Sanders (I-Vermont), Elizabeth Warren (D-Mass.), and Cory Booker (D-N.J.), officially requested that the Federal Communications Commission (FCC) "investigate Sinclair's news activities to determine if it conforms to the public interest." If such an inquiry were to uncover "distorted news reports," the senators reckoned, that "could disqualify Sinclair from holding its existing licenses" and put the kibosh to its proposed purchase of Tribune Co. television stations. "Multiple news outlets report that Sinclair has been forcing local news anchors to read Sinclair-mandated scripts warning of the dangers of 'one-sided news stories plaguing our country,' over the protests from local news teams," states the letter, authored by Sen. Maria Cantwell (D-Wash.). "As strong defenders of the First Amendment guarantees of free speech and freedom of the press, we are alarmed by such practices....Must-run dictates from Sinclair harm the freedom of the press guaranteed in the First Amendment by turning local journalists into mouthpieces for a corporate and political agenda." FCC chair Ajit Pai this afternoon responded with a curt thanks-but-no-thanks. "In light of my commitment to protecting the First Amendment and freedom of the press, I must respectfully decline," Pai wrote. "I have repeatedly made clear that the FCC does not have the authority to revoke a license of a broadcast station based on the content of a particular newscast. I understand that you disliked or disagreed with the content of particular broadcasts, but I can hardly think of an action more chilling of free speech than the federal government investigating a broadcast station because of disagreement with its news coverage or promotion of that coverage." The full text of Pai's letter is below: Dear Senator Cantwell: Thank you for your letter requesting that the Commission investigate a broadcaster based on the content of its news coverage and promotion of that coverage. In light of my commitment to protecting the First Amendment and freedom of the press, I must respectfully decline. A free media is vital to our democracy. That is why during my time at the Commission I have consistently opposed any effort to infringe upon the freedom of the press and have fought to eliminate regulations that impede the gathering and dissemination of news. Most relevant here, I have repeatedly made clear that the FCC does not have the authority to revoke a license of a broadcast station based on the content of a particular newscast. I understand that you disliked or disagreed with the content of particular broadcasts, but I can hardly think of an action more chilling of free speech than the federal government investigating a broadcast station because of disagreement with its news coverage or promotion of that coverage. Instead, I agree with Senator Markey that "[a]ny insinuation that elected officials could use the levers of government to control or sensor [sic] the news media would represent a startling degradation of the freedom of the press." I also take this opportunity to reaffirm the commitment I made to several members of the Senate Commerce Committee last year that the Commission under my leadership would "not act in a manner that violates the First Amendment and stifles or penalizes free speech by electronic media, directly or indirectly." Thank you for your interest, and let me know if I can be of further assistance. Ajit V. Pai Pai was quoting there from a letter Sen. Ed Markey (D-Mass.) wrote to him in October, urging the chairman to pledge that the FCC would not follow up on President Donald Trump's suggestion to challenge and possibly revoke the broadcast licenses of network news providers. Pai swatted away the notion of content-related license challenges both before[...]



Ben Sasse Asked Mark Zuckerberg Whether He Defines Hate Speech Like College Students Do

Wed, 11 Apr 2018 11:15:00 -0400

One of the most interesting moments of yesterday's Senate committee hearings on Facebook privacy issues came when Sen. Ben Sasse (R–Neb.) asked Mark Zuckerberg to define hate speech.* Zuckerberg immediately suggested violent speech as a category of content that would always be impermissible on Facebook. But Sasse cut him off. Everybody agrees about violent speech, he said. What about "psychological" harm? Here's a transcript of the exchange, with especially noteworthy sentences bolded: Sasse: I think regulation over time will have a hard challenge. You're a private company so you can make policies that may be less than First Amendment full-spirit embracing, in my view. But I worry about that. I worry about a world where when you go from violent groups to hate speech in a hurry. In one of your responses to one of the opening questions, you may decide or Facebook may decide it needs to police a whole bunch of speech that I think America might be better off not having policed by one company that has a really big and powerful platform. Can you define hate speech? Zuckerberg: Senator, I think that this is a really hard question. And I think that's one of the reasons that we struggle with it. There are certain definitions that we have around calling for violence. Sasse: Let's just agree on that. If someone is calling for violence, that shouldn't be there. I'm worried about the psychological categories around speech. You used language of safety and protection earlier. We see this happening on college campuses all across the country. It's dangerous. Forty percent of Americans under age 35 tell pollsters they think the First Amendment is dangerous because you might use your freedom to say something that hurts someone else's feelings. Guess what? There are some really passionately held views about the abortion issue on this panel today. Can you imagine a world where you might decide that pro-lifers are prohibited from speaking about their abortion views on your platform? Zuckerberg: I certainly would not want that to be the case. Sasse: But it might really be unsettling to people who have had an abortion to have an open debate about that. Zuck: It might be, but I don't think that that would fit any of the definitions of what we have. But I do generally agree with the point that you're making, which is that as we are able to technologically shift toward especially having AI proactively look at content, I think that that's going to create massive questions for society about what kinds of obligations we want to require companies to fulfill and I do think that that's a question that we need to struggle with as a country. Because I know other countries are, and they are putting laws in place, and America needs to figure out a set of principles that we want American companies to operate under. Sasse: I wouldn't want you to leave here today thinking there's a unified view in the Congress that you should be moving toward policing more and more speech. I think violence has no place no your platform, sex traffickers and human traffickers have no place on your platform. But vigorous debates, adults need to engage in vigorous debates. I'm not sure precisely which poll Sasse was referencing, but 53 percent of students told the Knight Foundation that diversity and inclusion were more important than free speech. YouGov found that 58 percent of students supported banning intolerant and offensive ideas—and half of all students who correctly said that hate speech is currently protected by the First Amendment nevertheless opined that it should not be. Current students were more likely than other groups to say offensive speech should be restricted, according to the Cato Institute, and New Criterion found that 21 percent of people 30 and younger thought the First Amendment was outdated and should be changed. (72 percent said faculty members who make offensive statements should be disciplined.) The data are clea[...]



Handing Out Pamphlets Is Not a Crime

Wed, 11 Apr 2018 00:01:00 -0400

Brian Thiede, the prosecuting attorney for Mecosta County, Michigan, wants to put Keith Wood in jail for handing out pamphlets. Yet Thiede says the pamphlets are perfectly legal, and so is handing them out. The solution to this riddle lies in Thiede's interpretation of Michigan's jury tampering statute, which he says turns constitutionally protected speech into a crime. If the Michigan Court of Appeals agrees, it will be giving officials like Thiede a versatile tool to censor and punish people who offend them. The pamphlet at the center of this case, which Wood obtained from the Fully Informed Jury Association (FIJA) and distributed in front of the Mecosta County Courthouse on November 24, 2015, argues that jurors can and should judge the law as well as the facts, which may lead them to acquit a technically guilty defendant in the interest of justice. That principle, known as jury nullification, is venerable but controversial, especially among judges and prosecutors. The FIJA pamphlet "just says ignore the law, ignore the facts, do what your conscience wants," Thiede declared at a preliminary hearing. "I'm thinking, 'Oh my goodness, we could have the jury who thinks that jihad is righteous, and if the San Bernardino shooters had not been killed, they'd say, 'Let's acquit.'" Thiede believes FIJA is advocating lawlessness. "The jury's violation of their oath is illegal, even though we don't have a remedy for it," he said while opposing Wood's motion to dismiss. "The pamphlet was set up to instruct and encourage the jury to go in one direction and one direction only—to favor the defendant." Arguing against Wood's appeal, Thiede likewise complains that "the content of the pamphlet was clearly anti-government." Officially, however, Wood was not prosecuted for promoting a message Thiede considers dangerously subversive. He was prosecuted for promoting that message near the courthouse on the day when the trial of Andy Yoder, a local man accused of illegally filling wetlands on his own property, was scheduled to begin. Wood concedes he took an interest in Yoder's case and knew it was scheduled for trial that day. But he says he expected the case to end with a plea bargain (which it did) and picked that day because he thought the courthouse would be busy. Wood was convicted of violating a state law that says "a person who willfully attempts to influence the decision of a juror in any case by argument or persuasion, other than as part of the proceedings in open court in the trial of the case, is guilty of a misdemeanor." Yet Wood did not discuss the Yoder trial with anyone at the courthouse, and none of the people who received a FIJA pamphlet from him was a juror in that case or any other, since no jurors were selected that day and Yoder ended up pleading guilty. "Wood was charged with tampering with a jury that did not exist," says his attorney, David Kallman. "There is no such crime in Michigan." The Cato Institute, in a brief it filed last week on Wood's behalf, argues that his conviction "strikes at the core of the First Amendment." It notes that he was "convicted for engaging in classic political advocacy (peacefully distributing pamphlets) in the quintessential public forum (the sidewalk in front of a courthouse) on a matter of public concern more ancient than Magna Carta, and at the heart of Anglo-Saxon law (the rights, duties, and independence of citizen jurors)." If the jury tampering law is understood to cover Wood's leafleting, the American Civil Liberties Union of Michigan warns in another brief filed last week, "it would criminalize a vast amount of protected speech." That might include, for example, holding rallies or passing out literature in support of tort reform, women's rights, or drug decriminalization, depending on whether those causes were arguably related to a pending case. Thiede, in other words, may be inadvertently strengthening the case for [...]



A Bunch of Senators Just Showed They Have No Idea How Facebook Works. They Want to Regulate It Anyway.

Tue, 10 Apr 2018 18:35:00 -0400

On Tuesday, the Senate Judiciary and Commerce, Science, and Transportation committees grilled Facebook CEO Mark Zuckerberg about the company's insufficient efforts to protect users' personal data. In doing so, many of the senators betrayed a general lack of knowledge about how Facebook operates. Imagine trying to explain social media to your grandparents—this was essentially Zuckerberg's task. Sen. Roy Blunt, (R–Mo.), for instance, didn't seem to understand that Facebook lacks a means of accessing information from other apps unless users specifically opt in. The same was true of Sen. Roger Wicker (R–Miss.), who needed a lot of clarification on how Facebook Messenger interacts with cellular service. Zuckerberg had to carefully explain to Sen. Brian Schatz (D–Hawaii) that WhatsApp is encrypted, and Facebook can't read, let alone monetize, the information people exchange using that service. Zuckerberg had to explain to multiple senators, including Dean Heller (R–Nev.), that Facebook doesn't technically sell its data: The ad companies don't get to see the raw information. Sen. Patrick Leahy (D–Vt.) brought along a poster on which his office had printed out images of various Facebook pages. Leahy asked whether these were Russian propaganda groups. "Senator, are you asking about those specifically?" Zuckerberg asked. He of course had no way of knowing what was going on with those specific pages, just from looking at pictures of them. "I'm not familiar with those pieces of content," Zuckerberg finally conceded. Sen. Amy Klobuchar (D–Minn.) offered this metaphor to explain Facebook's recent troubles: "the way I explain it to my constituents is that if someone breaks into my apartment with a crowbar and takes my stuff, it's just like if the manager gave them the keys." But that metaphor doesn't quite work—Facebook didn't willfully assist in a crime. Meanwhile, Sen. Debbie Fischer (R–Neb.) didn't understand, at a fundamental level, that if you're using Facebook, you have agreed to let Facebook know a lot of information about you. Sen. Lindsey Graham (R–S.C.) asked whether Facebook had any major competitors. Zuckerberg tried to explain that the company competes across different categories related to Facebook's several main functions—as a tech giant, against Google, as a social media site, against Twitter, and so on—which led Graham to fret about Facebook being a monopoly and thus incapable of self-regulation. Nevertheless, Graham asked Zuckerberg whether the CEO would be willing to propose regulations that Facebook might like the government to impose on it. Some senators, including Sen. John Cornyn (R–Texas) and Richard Blumenthal (D–Conn.), asked perceptive questions about Facebook's data collection practices. Even so, Blumenthal also asked whether users should be able to access all the information Facebook has on them—prompting Zuckerberg to point out that Facebook already lets users download their data. Throughout the hearing, Zuckerberg maintained that he wasn't against regulation, "if it's the right regulation." However, he expressed concern that regulations aimed at preventing Facebook from functioning as a monopoly might backfire and simply make it more difficult for smaller firms to compete. But senators on both sides of the political aisle were clear about their concerns—and more than willing to step in. "If Facebook and other online companies will not or cannot fix their privacy invasions, then we are going to have to," said Sen. Bill Nelson (D–Fla.). "We, the Congress." What Nelson and his colleagues largely failed to do was demonstrate that "we, the Congress" possess the requisite knowledge to regulate Facebook, or that those regulations would improve upon the policies Facebook would like to implement on its own. Ignorance breeds bad policy: consider the terrible Fight Online Sex Trafficking Act (F[...]



Americans Can’t Stand Each Other, So Let’s Stop Forcing Our Preferences on One Another

Tue, 10 Apr 2018 00:01:00 -0400

As a display of Americans' seemingly growing intolerance for one another, last week presented something of a perfect storm. The flash career of a prominent conservative writer at The Atlantic, the seeming endorsement by several tech executives of one-party rule, and the president waging war against businesses to punish media companies that criticize him provide the latest suggestions that some Americans don't play well together and should probably withdraw to separate corners. Kevin Williamson's mayfly tenure at The Atlantic represented a rare and aborted effort by a mainstream media organ to connect with ideas with which many of its readers are unfamiliar. Williamson is "an excellent reporter who covers parts of the country, and aspects of American life, that we don't yet cover comprehensively," editor-in-chief Jeffrey Goldberg told staffers in an internal email. But maybe people prefer that some things remain mysteries. At least, that seemed to be the case once the blunt and provocative Kevin Williamson was revealed to actually believe that aborting a pregnancy should be treated as homicide, and subject to the applicable penalties—potentially including capital punishment. When Goldberg discovered that Williamson's hard-core social conservative opinions "did, in fact, represent his carefully considered views," Williamson was fired. Exposure to opposing views can be scary for some—so scary, in fact, that prominent tech gurus think perhaps we should sideline them entirely somehow. "We can't have one step forward, one step back every time an administration changes. One side or the other has to win," Peter Leyden, CEO of Reinvent Media, insisted recently. Leyden puts forward California, where the GOP has collapsed and been swept aside by a nearly one-party state, as the ideal outcome for "the new American civil war." Leyden doesn't fret that the disappearance of one of America's two major parties would turn democracy into a sham, because in the California primary system "the voters still got a choice between, say, a more progressive candidate and a moderate candidate…who almost all operate within a worldview that shares much common ground." The rest of the country should follow California's lead on embracing one-party rule, Leyden opined. Evan Williams, cheif executive at Medium and the former head of Twitter, called this an "interesting take." Current Twitter chief Jack Dorsey named it a "great read." Sure—if you're into creepy bedtime stories. While we're on creepy, let's talk about President Trump's battle against the Washington Post via Amazon. By all accounts, the nation's chief executive has declared war against the online retail giant to punish the company's CEO, Jeff Bezos, for his ownership of the Trump-critical Washington Post. "Mr. Trump sees Mr. Bezos's hand in newspaper coverage he dislikes and is lashing out at Amazon as a proxy," according to the Wall Street Journal. Given my own family's long experience with Trump's thin skin (he threatened to destroy my father over the publication of an unauthorized biography), it's easy to imagine the guy acting on his own intolerance of criticism (as well as the example set by his White House predecessors) to attack his political opponents. And why shouldn't we attack and try to sideline one-another at this point in our mutual loathing? Americans increasingly want very different things from their political system. "[I]n recent years, the gaps on several sets of political values in particular—including measures of attitudes about the social safety net, race and immigration—have increased dramatically," Pew Research Center reported last October. Just two weeks ago, Pew added that while Democrats and Republicans embrace their political loyalties out of support for their preferred policies, "sizable majorities in both parties cite the other party's [...]



Beware Censorship by Proxy

Mon, 09 Apr 2018 09:59:00 -0400

This article originally appeared in the Los Angeles Times. YouTube is worried you might believe too much of what you see on its website. Amid the clamor for someone, somewhere to do something about "fake news," the company plans to attach "information cues"—excerpts from Wikipedia—to videos that touch on "a list of well-known internet conspiracies." When YouTube, Facebook or Twitter cracks down on some form of expression—conspiracy theories, radical rants, terrorist propaganda—some of the targets inevitably complain that their freedom of speech is under attack. (This feeling of victimhood may be what sent Nasim Aghdam to YouTube headquarters, gun in hand.) There is a strong retort to this: These are private platforms with a right to decide what they publish. It is no more a violation of the First Amendment for YouTube to muzzle a channel it finds offensive than it is for this newspaper to refuse to run a column calling for Minnesota to invade Wisconsin. But what if a private platform suppresses speech because it's afraid the government might otherwise step in? Just as one effective end-run around the Fourth Amendment is to ask private companies for data they slurped up on their own, the First Amendment can be sidestepped when officials pressure the private sector into self-censorship. The end result can be rules more restrictive than the companies would impose on their own—and more intrusive than the government could get away with if it tried to impose them directly. It's happened before. The Supreme Court ruled in 1915 that free-speech protections did not apply to the movies, a decision rightly reversed in 1952. In the interim, the industry opted to stave off federal regulation by establishing a series of self-censorship systems. The most powerful of these was the Production Code, which was created in 1930 but didn't really grow teeth until 1934, when Congress was mulling several bipartisan bills to tone down motion picture content. Hollywood got the message. Under the code, seduction was "never the proper subject for a comedy," plots couldn't involve "sex relationships between the white and black races," and the drug trade "should not be brought to the attention of audiences," among other tight constraints. Some filmmakers found ways to subtly subvert the restrictions. Many others threw up their hands and let their films be bowdlerized. The Federal Communications Commission directly regulates much of what can and cannot be said over the "public" airwaves. But private radio and television networks also have created their own internal Standards and Practices departments that control content, sometimes at absurd levels of caution. (Early network censors objected to terms as mild as "bloody," "bollixed" and "the W.C.") Broadcasters are not eager to offend their audiences, so some version of Standards and Practices would probably exist even without the FCC. But the desire to stay on regulators' and legislators' good side has clearly been at work in those departments' decisions as well. You can tell because the self-imposed rules eased up when federal content controls were relaxed in the 1980s. The comic book industry adopted a Comics Code after the Senate Subcommittee on Juvenile Delinquency held a hearing in 1954 on their products' alleged role in fostering crime. The immediate effect was to infantilize the industry, forcing a range of popular horror titles into the dustbin. The "parental advisory" labels affixed to CDs were invented following another Senate circus, the "porn rock" hearings of 1985. The stickers kept some records out of certain stores, and prompted some producers to edit songs or change album lineups to avoid the restrictions. In 1993, another set of Senate hearings inspired a comparable ratings system for video games. Those moves haven't had as much forc[...]



Newspapers Care Much More About Bashing Sinclair Than Criticizing an Unconstitutional Attack on Free Speech

Fri, 06 Apr 2018 13:59:00 -0400

If Jesus was right about how ye shall know them by their fruits, then we might have a good test case for gleaning what the journalism establishment (such as a thing exists) considers an important threat to a free press. In one corner we have a must-run cookie-cutter anti-"fake news" promotional video ordered up by the conservative-leaning Sinclair Broadcast Group to its most-in-the-nation 193 local-TV-news outlets, at a time when the company's controversial merger with Tribune Co. is being held up by anti-trust regulators at the Justice Department. In the other we have a Sex Trafficking Act passed overwhelmingly by Congress (388-25 in the House, 97-2 in the Senate) despite being vociferously opposed on free speech grounds by the American Civil Liberties Union, the Electronic Frontier Foundation, and reliable civil libertarians such as Sen. Rand Paul (R-Ky.) and Sen. Ron Wyden (D-Oregon), the latter of whom warned that "Civic organizations protecting their right to free speech could be [ruined] by their more powerful political opponents" and that subsequently there could be "an enormous chilling effect on speech in America." So: The act of an individual company possibly flattering its regulator while mandating politically tinged content, versus the act of the federal government knowingly limiting speech in such a way the Justice Department has warned might be unconstitutional, and that has already prompted some prominent websites to self-censor. The choice seems clear to me. As a stand-in for what the journalism class prioritizes, I'll use newspaper editorials. Searching both Nexis and Google News on "editorial" and "sex trafficking act" and "Sinclair," here is what I found over the past couple of months: * Sex Trafficking Act: 3 4* newspaper editorials, 2 of them in favor. * Sinclair Broadcast: 15 newspaper editorials, 14 of them critical of Sinclair, 5 supporting federal government intervention, and exactly 1 criticizing Sinclair while telling the feds to back off. Let's reward the good behavior first. Here is an Orange County Register editorial concluding that the Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA) is "well-meaning" but "wrong." Sample: FOSTA's penalties not only use the precautionary principle to justify a sweeping suppression of consensual communication, they also force private online companies like Craigslist to unwillingly shoehorn the precautionary principle into their business model. On top of these flaws, FOSTA commits one more sin. Now that websites face a one-strike-you're-out law on precautionary grounds, the door is open to more laws doing the same. In a free society, that's impermissible. FOSTA is a big mistake. That's it! There's your one American newspaper* editorial criticizing a probably unconstitutional clampdown on free speech. By contrast, this Kansas City Star mastheader does not even mention that a free-speech objection exists, instead exulting in the "bipartisan win" and how "this fight was worth it": Ever since the wildly lucrative world of sex trafficking moved from the streets to the internet, market leaders in commercial sex advertising like Backpage have hidden behind an antiquated section of the Communications Decency Act. The act provided Backpage with what [Sen. Claire] McCaskill called "complete and total immunity from being held accountable for their bad behavior." As for the Sinclair dogpile, I previously pointed out the Boston Globe's remarkably shortsighted conclusion that political slant itself is one good reason for the federal government to block the company's expansion. But don't sleep on the St. Louis Post-Dispatch: "In reality, the eerily Orwellian video, which quickly went viral, makes the case against the Sinclair-Tribune deal," the paper wrote. "Trump told a verified av[...]



Gawker Was Killed for Publishing Embarrassing Truths. That's Bad News.

Fri, 06 Apr 2018 12:50:00 -0400

The old-fashioned belief that free expression is the best way to buttress political freedom, further the quest for truth, and sharpen civic and personal mental acuity is being increasingly abandoned, from thought-leader popular magazines to prominent daily newspaper beat reporters. Such speech skeptics believe—and they are not wrong!—that free expression can harm either specific people or the culture at large, and thus deserves to be squashed in some circumstances. That idea animates a fascinating though infuriating new book that tells the story of a publication forced to recant, then be utterly financially ruined, for publishing something true: Conspiracy: Peter Thiel, Hulk Hogan, and the Anatomy of Intrigue (Portfolio Penguin) by marketing guru Ryan Holiday. This is not a First Amendment story, but it is a story about the power of U.S. government to suppress speech via its tort system. The web publication Gawker was destroyed via lawsuit for invasion of privacy and infliction of emotional distress on wrestler Hulk Hogan (real name Terry Bollea). Gawker published something true—a 1:41 portion of a video of Hogan having sex with his best friend's wife (at said friend's invitation) that Hogan did not know was being shot—and he sued over it. A Florida court in March 2016 granted Hogan $141 million in compensatory and punitive damages against the publication, its publisher, and one of its writers. (While Gawker could not afford to appeal because a quirk of Florida law requires putting up a bond for the full award pending appeal, the parties eventually settled for smaller amounts that still annihilated Gawker.) A detail not made public until after Hogan's paralyzing bodyslam to Gawker: Hogan's suit was financed by controversial tech billionaire Peter Thiel. He had his reasons, as Holiday explains via long exclusive interviews with the often press-shy Thiel; mostly, he was mad Gawker outed him as gay in 2007. Thiel was, Holiday concluded from his interviews, consumed with "anger at the unfairness of it...the needless impoliteness of it." Thiel was, says Holiday, a man who "venerated privacy" and considered Gawker literal terrorists for regularly publishing facts about famous (and sometimes not famous) people that those people were embarrassed by. Was Thiel's righteous anger sincere? It seems unlikely, given that Palantir, a company Thiel founded, happily sells its data-mining services to help the government deport people; or to harass short-term apartment renters; or help cities do "predictive policing." Holiday's central polemical point doesn't rely on Thiel's sincerity; it is merely that Gawker's publishing the video shamed and hurt Hogan. "No civil society would allow something like this to go unpunished," Holiday concludes. Was Hogan harmed? Most humans with a hint of empathy would agree he was. Does that settle it? No. Many harms we permit to go legally unpunished. Going into competition with someone's business can harm them. Choosing to start, or leave, a romantic partnership can harm both prospective partners and third parties. Doing something with your own property that violates expectations built around them, even as simple as enjoying it aesthetically, can harm. Deciding to go to the same beach as someone else can harm their enjoyment of that beach. As foes of "political correctness" (which Thiel considers himself) recognize, speaking certain truths or sincerely held opinions related to gender roles or politics, can, in the perception of those who hear them, harm. But a post-Enlightenment westerner should not be quick to think the harm of "violating privacy" should equal "sued out of existence." It's conceptually untenable to claim a fact (even a fact like "what it looked like while you had sex with a friend's w[...]



Open Season on Russian Oligarchs, Prison Porn Ban Heads to Court, How the Media Got the Pulse Massacre Wrong: Reason Roundup

Thu, 05 Apr 2018 09:30:00 -0400

Russia's business elite become latest target of Mueller investigation, sanctions. A new twist in the great election-meddling caper: Special prosecutor Robert Mueller is stopping Russian tycoons at the border to search their digital devices. Mueller has been looking for links to illegal Trump-campaign contributions by showing up with search warrants to greet "at least two Russian oligarchs whey they arrived at US airports," according to Mother Jones. "One oligarch, according to sources who spoke to CNN, had his electronic devices searched after his private jet landed at a New York airport." Hopefully there's more to Mueller's game here than we know, because this—"investigators are asking whether wealthy Russians illegally funneled cash donations directly or indirectly into Donald Trump's presidential campaign and inauguration" (via CNN)—does not seem like the most effective strategy. That isn't the kind of information that people tend to just offer up willy-nilly. But maybe Mueller's team has some leverage. Or maybe they're trying the same strategy that trapped Alex van der Zwaan, the London-based lawyer sentenced earlier this week to 30 days in federal prison. The feds got van der Zwaan not because of any underlying criminal activity, but because he withheld information about the last time he had talked with "Person A" and with Rick Gates, who was Trump's deputy campaign manager. Although the reason for van der Zwaan's omission may not have been related to the underlying investigation—he says he was worried about getting in trouble with his law firm if they found out he had recorded a call between him one of the firm's principals, and in any event the recordings showed all of van der Zwaan's contact was related to work he had done in 2012-13 related to Ukraine—the lie provided an opportunity for investigators to get more data on folks who were more closely related to Russia or the Trump campaign. Meanwhile, the Trump administration "plans to sanction Russian oligarchs this week under a law targeting Moscow for meddling in the 2016 U.S. election," reports Reuters. Sources told the news agency that the sanctions would be brought under bipartisan 2014 legislation known as the "Countering America's Adversaries Through Sanctions Act." Pascal-Emmanuel Gobry at The Week thinks we might be going a bit overboard with the Russian scapegoating right now. "From Putin's perspective, the Trump administration is probably a wash, if not a net negative," writes Gobry. But the election of Trump has given Putin one major benefit: fear. The West used to see Russia as a joke; now the West sees Russia as a dangerous threat. Putin wins not by actually swinging the U.S. presidential election but because Americans believe that he did. Americans are now (once again) convinced that Russians hate us for our freedom, which gives ideological oomph to previously less charged conflicts. ... if there is a "new Cold War," it is not because Russia sends bombers dangerously close to NATO airspace, but because this confrontation between states, as old as humanity itself, now has a component of global ideological combat. FREE MINDS Prison "porn ban" extends to explicit letters and yoga magazines. A federal judge is considering whether South Dakota's statewide ban on porn in prisons is constitutional. The case arose from an inmate, Charles Sisney, who says all sorts of non-pornographic content got caught up in porn prohibition, including a yoga magazine, images of Michaelangelo's work, and Japanese comics. The American Civil Liberties Union (ACLU) of South Dakota and the National Coalition have filed briefs in support of Sisney's case. Even when things like fitness magazines aren't getting caught up in South Dakota's prison p[...]



Can You Guess How Much Butt This Town Will Let You Show?

Tue, 03 Apr 2018 13:10:00 -0400

So, what part of the butt is the ass crack, really? As a legal matter. You see, a fight over scantily clad baristas in one Washington State community hinges partly on whether the average person can objectively tell which part of the bottom counts as the "anal cleft" and whether police could (or would) objectively be able to measure whether one is exposed or not. The city of Everett, Washington, is trying to get rid of its "bikini barista" stands with an ordinance that forces the ladies there to wear more coverage. The city claims that these tiny stands where scantily clad women serve coffee are incubators of prostitution, public lewdness, and crime. They're trying to shut them down by forcing the women to button up. The stands are fighting back and won an initial injunction against the ordinance's enforcement in December. A U.S. district judge determined that Everett's ordinance was too vague in its description of what needed to be covered and thereby risked arbitrary enforcement issues. And the judge further determined that the law likely violated the First Amendment free expression rights of the women who worked there. Everett is now fighting back itself against the injunction, submitting a legal brief arguing that the judge erred on both counts. Its appeal calls for the judge to be overruled and the injunction dissolved. You'll never read a more boring 66-page document about butts. It includes four pages listing all the federal court cases used to bolster its claim that there's no real confusion about what counts as an "anal cleft" and that there's no evidence that the women are actually expressing anything in particular in their clothing choices. Below the fold, butts: The Everett brief says anybody who is confused about the anal cleft can just consult a dictionary on what the two words mean. Wikipedia and Wiktionary both have pages for the gluteal cleft and intergluteal cleft. Embedded are what somebody apparently thinks are helpful pictures. To the right is the image included for the Wiktionary article. As you'll note, it's really just a picture of a naked butt. A perfectly lovely one. But how much of it counts as the cleft? Where does the asscrack end and the butt cheek begin? As for the evidence in the brief itself, Everett does provide examples of other court rulings upholding ordinances and laws that control how much butt or butt crack a person can expose in public, including others that use the term "anal cleft." Let it not be said that Everett skimped on the amount of time, effort, and probably money to justify to the court why it wanted to ban butts. In the end … But … However, it's worth examining more closely why the city is so determined to hide the rear cleavage. The lawsuit insists that the city has been unsuccessful in stopping other criminal activity happening around the coffee stands—prostitution, lewd conduct, drug abuse, and sexual assault—so a new ordinance was necessary. Even though these other laws were already on the books, the sight of a woman's butt crack apparently deprived customers of all capacity to decide for themselves whether to follow the law. I'm not even kidding here. At one point, the brief accuses one stand owner of corrupting "Snohomish County Deputy Darrell O'Neill by trading sexual favors in return for law enforcement information." He apparently was helpless to resist in the face of all that sweet lady butt. While I'm not blind to complaints by the neighbors about all the public lewdness happening (these are frequently walk-up stands, not indoor locations) and any actual victimization that may have occurred, the city here has focused on bans as a solution, which just makes a black market for butts. And that's just silly.[...]



New Backpage Ruling Lays Bare Some of the Lies Undergirding FOSTA

Mon, 02 Apr 2018 16:31:00 -0400

Does a new federal court ruling in Massachusetts show the bankruptcy of recent congressional sex trafficking legislation? Yes and no. The ruling, from U.S. District Judge Leo Sorokin, allows a civil suit against the classified-ads website Backpage to proceed for one of the case's three plaintiffs, referred to in court documents as Jane Doe 3. For the other two plaintiffs, the judge granted Backpage's motion to dismiss the case. The plaintiffs allege they were victims of sex trafficking, that their traffickers posted (or required them to post) ads on Backpage in order to advertise their services, and that Backpage is thus responsible for their exploitation and abuse. They further allege that in at least one instance, Backpage edited an ad to make it appear that Doe 3 was an adult when it should have been obvious that she was a minor. Coming just a few weeks after Congress passed a measure related to prostitution advertising (known as FOSTA), the ruling has sparked debate over whether the new law is actually needed in order to hold sites accountable for knowingly facilitating sex trafficking. FOSTA declares that the Communications Decency Act's Section 230, which protects digital platforms from certain legal liabilities for the things that third parties post, doesn't apply in matters relating to sex trafficking or prostitution. Notably, Section 230 does not apply if the content in question was created by the platform "in whole or part." In his May 29 decision, Sorokin stressed that if Backpage employees had edited Doe's ads in a substantial manner, the site would not be protected from liability for contributing to Doe's prostitution as a teenager. Opponents of FOSTA say Sorokin's ruling shows that one of the major stated rationales for FOSTA—to allow civil suits against Backpage—can be done without a new federal mandate. This is true, but only insofar as Backpage actually made substantial edits to the offending ads. In other words, if Backpage is the monstrous "online brothel" that politicians claim it is, and it knowingly changed content to obscure the sex trafficking of minors, than victims can sue and Section 230 doesn't apply. But so far, nothing in the Massachusetts case, in previous federal cases against Backpage, or in a year-long Senate investigation into Backpage's practices has shown that this is the case. If Backpage is not the monster—and content creator—that its critics say it is, that means holding it "accountable" for user-generated content does require the government to roll back Section 230. It also means it's a myth that FOSTA is only going to harm "bad" sites. As lawyer Eric Goldman wrote on Friday, "Backpage has been the poster child for Section 230's purported failings" under the argument that "(1) Backpage facilitates sex trafficking, (2) Section 230 protects Backpage, so (3) Section 230 is evil." A court ruling that Section 230 doesn't preclude prosecution of Backpage would destroy the whole premise for the law. That premise has always been bunk to those paying close attention. (Crucially, "Section 230 does not provide Backpage—or anyone else—absolute immunity, and it never has," notes Goldman.) But the general pitch for FOSTA has been offered on hold-Backpage-accountable grounds. Particulars were "ignored" in "legislative developments, leading Congress to eviscerate a crucially important and brilliantly visionary law (Section 230) for what may be minimal or no real gains to benefit victims of sex trafficking," writes Goldman. Behind the scenes, forces including the Senate Judiciary Committee and all sorts of scholars, lawyers, and tech folk had urged legislators to hold off on advancing the bill until a ruling i[...]