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

Free Speech/First Amendment

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

Published: Mon, 24 Apr 2017 00:00:00 -0400

Last Build Date: Mon, 24 Apr 2017 06:33:33 -0400


The Un-Free Speech Movement at Berkeley

Mon, 24 Apr 2017 00:01:00 -0400

There are few prospects in life more appealing than the silence of Ann Coulter. She brings to mind what novelist Mary McCarthy said about playwright and Stalinist Lillian Hellman: "Every word she writes is a lie, including 'and' and 'the.'" If the world never suffered another emission from Coulter's toxic brain, it would be a better place. But she said she would speak at the University of California, Berkeley even though the school administration had canceled the speech she was scheduled to give April 27 at the invitation of two student groups. Faced with that challenge, the university changed its mind, sort of, proposing to let her appear May 2. All I can say is something I never thought I would: It will be a great thing for Ann Coulter to speak. UC Berkeley is an exceptional institution whose history includes the 1964-65 protests that gained fame as the Free Speech Movement. Long known as a hotbed of left-wing activism, it has lately gained attention as a place where right-wingers venture at their peril. In February, the administration abruptly called off a talk by then-Breitbart News troll Milo Yiannopoulos after protesters threw stones and firebombs and smashed windows. In all, they caused $100,000 in property damage and several injuries. The destruction came not from students intolerant of unwanted opinions, according to the university, but from masked self-styled anarchists bent on wreaking havoc. After Yiannopoulos was invited, the administration had issued a ringing statement condemning his views while defending his right to speak. It affirmed the university's commitment to "the principle of tolerance, even when it means we tolerate that which may appear to us as intolerant." The event was canceled only after it became clear that the unexpected violence might prove "lethal," as campus police said. Assistant Vice Chancellor Dan Mogulof offered a plausible excuse: "We have never seen this on the Berkeley campus. This was an unprecedented invasion." Whatever turmoil might attend Coulter's appearance, though, would not be unprecedented, and it would not be impossible to contain. With so much advance notice, the university should be able to mobilize an abundance of police resources to prevent and, if need be, suppress another riot. By deciding to deny her a venue until a time it deems suitable—September was its preference—the administration gave the strong impression that its devotion to intellectual liberty is negotiable. Its partial reversal Thursday may have been a way of avoiding the embarrassment of having Coulter show up in defiant glory. Or it may have stemmed from the greater embarrassment of letting feral troublemakers shut down any event they choose. But Coulter, noting that students will be on break May 2, has vowed to come April 27. At other public institutions, the record of tolerance is mixed. When white nationalist Richard Spencer was invited to Texas A&M, the school defended his right to free speech and deployed riot police to handle any violence—while sponsoring a well-attended counter-event. Conservative writer Heather Mac Donald's talk at UCLA went off as planned but provoked angry yelling from some in the audience, ending with her being escorted out by cops. When Spencer was invited to Auburn, the university said no—only to be overruled by a federal court. Auburn's excuse was the same one offered by UC Berkeley: It couldn't permit an event that might jeopardize safety. That policy defers to what lawyers call the "heckler's veto"—which gives those inclined to violence the privilege of silencing any speech that might upset them. State universities, being organs of government, are bound by the First Amendment. That may be why some of the worst episodes, including the one at Middlebury College when conservative writer Charles Murray was shouted down and physically attacked, have occurred at private institutions, which may ban speech they don't like. But the spirit of free inquiry ought to be upheld at any college or university worthy of the name. For any school to impede speakers because crit[...]

If President Trump’s War on the Press Starts with WikiLeaks, Who Will Rise to Assange’s Defense?

Fri, 21 Apr 2017 12:15:00 -0400

If a vague, politically malleable concept of "hate speech" is all it takes for some Americans to surrender their First Amendment rights to speak out, will the possibility of the prosecution of WikiLeaks be all it takes for some Americans to turn their backs on the free press? CIA Director Mike Pompeo warned last week that neither WikiLeaks nor its founder Julian Assange were safe from what Pompeo believes to be "justice" for the media outlet's role in leaking classified or private information and communications to the public. If the sources who have talked to CNN are telling the truth, Pompeo's threats aren't just bluster: The Department of Justice is mulling over whether to charge Assange with some sort of criminal behavior. And Attorney General Jeff Sessions said on Thursday that the Justice Department will "seek to put some people in jail" over leaks. President Barack Obama's administration famously went after leakers. But they knew to target the people who actually leaked to the press, not the press itself. CNN notes that the Justice Department under Obama did mull over how to possibly get at Assange and WikiLeaks but couldn't figure out a way to do so without implicating other media outlets that also ran leaked classified information. Under Donald Trump's administration, they seem to be less interested in that sort of distinction and are leaning heavily on the idea that Assange is a foreigner and doesn't get the "protection" of the First Amendment. That's not how the First Amendment works or is written and the American Civil Liberties Union is raising alarms at what the administration is considering: Ben Wizner, director of the American Civil Liberties Union's Speech, Privacy and Technology Project, argued that US prosecution of Assange sets a dangerous precedent. "Never in the history of this country has a publisher been prosecuted for presenting truthful information to the public," Wizner told CNN. "Any prosecution of WikiLeaks for publishing government secrets would set a dangerous precedent that the Trump administration would surely use to target other news organizations." A lot of people who supported Hillary Clinton are furious with WikiLeaks these days and blame it and Assange for contributing to her defeat by publishing hacked emails from her campaign. Some even believe Assange is a willing stooge for the Russian government. As such, because some people don't like the consequences of what WikiLeaks has done, they seem more than fine with the idea that they should not have the same protections as media outlets they see as more "mainstream." Note some of the tweets at the bottom of this San Diego Union-Tribune piece. I think I'm most fascinated with the dueling concepts that Assange isn't protected by the First Amendment because he's a foreigner, but he's also a "traitor," even though he's not a U.S. citizen. Allow the government to decide what is a real media outlet and what counts as journalism will only lead to bad places. It is the ultimate example of a slippery slope that decimates the concept of what a "free press" is. Sessions subsequently on CNN refused to rule out the possibility that other media outlets could also face prosecutions for publishing leaked information. People who think WikiLeaks and Assange are bad guys because of what happened to Clinton need to stop for a minute and think about the consequences of an administration led by a man who is openly hostile to the concept of a free press claiming the authority to decide the circumstances by which the protections of the First Amendment applies. That so many people hate WikiLeaks makes it an easy political target. This is a test run. It will not stop here.[...]

If Even One Berkeley Student Wants to Hear Ann Coulter, She Should Speak There

Thu, 20 Apr 2017 10:37:00 -0400

The University of California-Berkeley cancelled conservative author Ann Coulter's upcoming speech on grounds that the police could not guarantee her safety—a damaging blow to free speech on campus. Administrators want to reschedule the event; the Young Americans for Freedom, who invited Coulter in the first place, have vowed to proceed as planned. Conservative students have good reason to continue with the event anyway, although one can hardly blame administrators, at this point, for being concerned. Berkeley has played host to increasing levels of mob violence as a result of invitations to controversial speakers like Coulter and Milo Yiannopoulos. Blame here rests solely on the shoulders of the people promising violence in response to speech they oppose. Student activists and local Berkeley leftists don't want Coulter, who has a history of making vile statements, to bring her right-wing shtick to campus. And of course, they have the right to object to her presence, to protest her, and to criticize those who invited her. That's free speech. But free speech does not include the right to engage in censorship, or to engage in violence, or to threaten violence in order to prevent the university from playing host to a controversial speaker. Is Coulter's perspective worth hearing? While she believes a great many things that I find reprehensible, note that she is one of a handful of high-profile figures on the right who opposes increased military intervention in Syria. (Yes, this is a departure from her full-throated Iraq War cheerleading, though at least she's flip-flopping in the correct direction.) And despite her quasi-religious devotion to President Trump during the campaign, recently she has shown a willingness to criticize him for catering to the neoconservative wing of the Republican Party. But the case for giving Coulter a platform is actually much simpler, and does not require any defense whatsoever of her views. The case is this: the students who invited her would like to meet her and hear her speak. Presumably, a number of less politically active students—who probably dislike Coulter, but would appreciate the opportunity to hear from her anyway—do as well. Students are paying thousands of dollars to attend Berkeley—a public university—for precisely this opportunity: the opportunity to enjoy thought-provoking learning experiences. Groups whose violent tactics force administrators to rescind speaking invitations are essentially forcing student to waste their investment. Those who say that students and local activists have a right to shut down the Coulter event are prioritizing one group's wishes over another's. They are trampling some students' rights in order to please others. They are saying the rights of the offended matter more than the rights of the open-minded. Some have criticized Coulter's own approach to the issue: she demanded that the university expel any student who engages "in violence, mayhem or heckling to prevent an invited speaker from speaking." It's harsh, but I don't fully understand why it's particularly controversial. Yes, people who engage in violence should be arrested, and yes, students who prevents an invited speaker from speaking should be subjected to some kind of disciplinary action, because they are violating the rights of members of campus who are interested hearing a contrary perspective. Students pay good money for such an opportunity. The people taking it away from them are not the good guys.[...]

Portland Resistance Radicals Trying to Disrupt an Anti-Immigration Speaker Thwarted by Lewis & Clark Students

Wed, 12 Apr 2017 17:22:00 -0400

Note: The original version of this article mistakenly stated that John Tanton, founder of the Federation for American Immigration Reform (FAIR) is deceased. He is not and I regret the error. Protests broke out at the International Affairs Symposium at Portland's Lewis & Clark College Tuesday when radicals outside, frustrated at being stymied, started pounding on the door of a debate on immigration, as if trying to break in. But the true hero of the event was a black Muslim student from Sudan, a country included in Trump's travel ban, who heroically grabbed the bullhorn from one of the screaming yahoos and lambasted them for disrupting the event. He told them that because of them, the event ended abruptly, robbing him of an opportunity to ask his question. He pointed out that if they want change and reform, they are going about it the wrong way if they won't even let people talk—showing that, ironically, a foreigner, has a better grasp of free speech, tolerance, pluralism, and open dialogue than the protesters speaking on his behalf. I had been invited to the country's oldest student-run symposium along with former Michigan Republican Rep. Pete Hoekstra to kick off the three-day event with a debate on open borders and immigration. But last night things got "interesting"—as the Chinese would say. That's because the student organizers had invited Center for Immigration Studies' Jessica Vaughan to debate Northwestern University's Gayla Ruffer on the international community's obligations towards refugees. The Southern Poverty Law Center characterizes CIS as a hate group, which may be debatable. But what is not is that it is a crappy outfit and countering its steady stream of misinformation and half-truths accusing immigrants of everything—including raising global greenhouse gas emissions — could keep an army of fact-checkers gainfully employed for a long time. (Its latest scrape with the truth occurred just last week when Harvard University's Robert Putnam accused CIS head Mark Krikorian of "cherry-picking" his work in an anti-immigration piece for The Wall Street Journal.) As I wrote last year, CIS is a spinoff of the Federation for American Immigration Reform (FAIR), a racist organization. Indeed, FAIR founder John Tanton, a tireless anti-immigration crusader, worked to create CIS (along with NumbersUSA, another awful outfit) because his many eye-popping comments over the years had put FAIR on the losing side of the "battle of ideas." For example, he's on record regretting that Hitler had given eugenics a bad name. Tanton was also a member of Zero Population Growth and his broader aim was a planet inhabited by fewer and whiter humans. (He once quipped that the high Latino fertility rates meant that "those with their pants up [whites] are going to get caught by those with their pants down!") Krikorian (whom I have debated) cut his intellectual teeth at FAIR and has been spectacularly successful in whitewashing (so to speak) its link with FAIR. (This is partly because of the writing perch he and other CIS writers have acquired at the National Review which, incidenatlly, suggests that NR's staunchly pro-life editors love the unborn less than they hate immigrants.) So successful in fact that the rather progressive-minded student committee that organized the conference was simply not aware of CIS's nefarious connections and history when it invited Vaughan. However, having extended the invitation, it wanted to go ahead with it. But Lewis & Clark history professor Elliott Young, a campus firebrand, wrote a scathing piece earlier in the week in the Huffington Post chastising the student organizers for providing a "safe space" for those with the radical right. His piece mobilized the local Portland Resistance, a far-left outfit that began planning a protest on Facebook. Campus authorities caught wind of this and, wishing to avoid a Berkley-like situation where outside groups violently stopped Milo Yiannopoulos from speaking, changed the venue o[...]

Should the Feds 'Unmask' Anonymous Political Speech?

Wed, 12 Apr 2017 12:15:00 -0400

Last week the Department of Homeland Security's Customs and Border Protection division demanded that Twitter reveal the identity of the person behind an account that has been criticizing the Trump administration. The agency had no authority to issue such a demand, and quickly retracted it. But you could not have scripted a better incident to confirm the worst fears of Trump administration critics about its neo-fascist tendencies. As a Washington Post story last week noted, Twitter's "primary objection, the company said, is that allowing the government to unmask Twitter critics violates the Constitution's First Amendment right to free speech... That right, the company said, is particularly important when discussing political speech. 'First Amendment interests are at their zenith when, as here, the speech at issue touches on matters of public political life,' [Twitter's court] filing said." Twitter fretted that the demand "may reflect the very sort of official retaliation that can result from speech that criticizes government officials and agencies." Civil libertarians were—quite properly—outraged. Democratic Sen. Ron Wyden (Ore.) called the DHS demand a "witch hunt." In a letter to CPB, he pronounced himself "gravely alarmed" by an apparent attempt to "squelch the exercise of First Amendment rights to comment on U.S. policy, and to make those comments anonymously." The case was "about the broader right to speak anonymously on the internet," said Esha Bhandari, a staff lawyer with the ACLU. In a subsequent statement, she told The Washington Post, "Speaking anonymously about issues of the day is a longstanding American tradition, dating back to when the framers of the Constitution wrote under pseudonyms. The anonymity that the First Amendment guarantees is often most essential when people criticize the government, and this free speech right is as important today as ever." Alex Howard, deputy director of the Sunlight Foundation, praised Twitter's rebuff of the CBP demand: "The choices they made to stand up for their users set important precedents for other companies now and into the future." This is all very good to hear, especially in light of the hand-wringing over "dark money" in political campaigns. Dark money consists of donations to groups such as Americans for Prosperity, the League of Conservation Voters, and the Planned Parenthood Action Fund. Those politically oriented nonprofit groups can use the money for independent expenditures urging the public to vote for or against a political candidate. Dark-money expenditures have increased in recent years, but they still represent only a tiny fraction of total campaign spending. The vast majority of the money—more than 90 percent—gets spent by candidates, political parties, and groups formed to support specific candidates. Nevertheless, "dark money" sounds despicable. It summons images of robber barons twirling their mustaches as they plot world domination—even though it is just as likely to be spent by NARAL Pro-Choice America or the Environmental Defense Action Fund. Because it sounds awful, it has elicited calls for "disclosure." Legislation has been introduced in Congress and in more than half the states that would require such incorporated nonprofits to disclose their donors. One New York proposal would require nonprofits to disclose the identities of anyone who gave them more than $1,000 if they express any opinion about any position taken on any issue by any candidate, legislature, or executive agency. If Friends of the Earth says State Sen. Smith is wrong to support fracking, the group would have to reveal the identity of all its donors, submit internal communications to the government for review, and more. And guess who supports such disclosure? Right: Ron Wyden. The senator says he was proud to sponsor legislation that "would require all entities that engage in election-related activity to report their significant donors." And the Sunlight Foun[...]

The Hypocritical Logic Behind Republican Plans to Ban Online Porn (Unless You Pay $20)

Tue, 11 Apr 2017 15:30:00 -0400

Draft bills in at least 13 state legislatures would require all internet-enabled devices to come installed with an anti-porn filter, which adult consumers could choose to have removed for a fee of $20. They're calling it the Human Trafficking Prevention Act. The Daily Beast does a nice job today of exposing the huckster behind this legislation, a 40-year-old EDM musician and anti-porn crusader named Chris Sevier who tried to marry his computer in protest of same-sex marriage, was released early from an Iraq tour for mental-health issues, sued Apple over the dissolution of his marriage, and has been charged with harassing a teen girl as well as country singer John Rich. Beyond Sevier's questionable and colorful past, however, a bigger question remains: why are so many state lawmakers—overwhelming Republican—supporting this sort of nonsense? A cabal of legislative cheerleaders from Alabama to Wyoming has embraced the idea that we should require manufacturers of computers, tablets, iphones, smart TVs, and the like to equip devices with the anti-porn filters and require consumers to pay to remove the filters from their devices. South Carolina state Rep. Mike Burns, who co-sponsored one bill in his state, told the Beast that they "do not want more taxes. Period. But we are trying to make a statement, and $20 ain't gonna kill anybody." But of course it's not only monetary costs to consumers that are are a concern. The porn-filter proposal would also impose costs on product makers, and even steeper costs on U.S. civil liberties. "The way it's written, it would cover your router. It would cover your modem," said Electronic Frontier Foundation researcher Dave Maass. "Plus, now Best Buy is sitting on a database of people who wanted their porn filters removed." And then there's question of how the filters would decide what is and isn't porn—content filters designed to catch explicit content have historically been harsh on all sorts of sexuality-related content, from educational websites to news to art. Conservative lawmakers seem to support anti-porn proposals like this one because they please certain segments of their electoral base, give people easy fodder against lawmakers who vote in opposition (how does it look at a glance to be against the Human Trafficking Prevention Act?), and aren't generally a political dealbreaker for those who oppose the plans. The porn-filter laws might irk some or seem silly, but like Rep. Burns said, "$20 ain't gonna kill anybody." This justification might make sense if the idea was simply a tax on porn consumers. But the porn-filter bill is explicitly packaged as a response to porn being a "public health hazard" and "cancer on society" that "perpetuates a sexually toxic environment" in America, normalizes violence against women and children, "portrays rape and abuse as if such acts are harmless," promotes "problematic or harmful sexual behaviors," and "increases the demand for sex trafficking, prostitution, child sexual abuse images, and child pornography." If Republican lawmakers really believe that online pornography is a public health crisis that directly contributes to human trafficking, isn't $20 to access an unlimited quantity of it a bit low? Why shouldn't such a scourge just be banned entirely? Much like liberal counterparts who declare Donald Trump a fascist/Nazi/white supremacist and themselves the #Resistance and then demand more government control of broadcast media, arts funding, etc., conservative lawmakers demonstrate an extreme dissonance of rhetoric and response here. It leaves open three possibilities: Republicans really believe that internet porn is a public health crisis that ruins relationships and directly leads to human trafficking—and also that paying $20 absolves one of moral responsibility for such matters. Republicans believe porn is a public health crisis that causes sexual exploitation and the $20 fee proposal is just a ploy [...]

Border Agents Misuse Customs Regs to Try to Unmask ‘Rogue’ Twitter Account (Update: Attempt Withdrawn!)

Fri, 07 Apr 2017 12:20:00 -0400

Agents from U.S. Customs and Border Protection (CBP) are attempting to force Twitter to reveal the real name of an account user. Twitter is taking them to court to try to stop them, and the American Civil Liberties Union (ACLU) has jumped on board to represent the user him or herself to protect their anonymity. Is this somebody accused of human trafficking? Maybe some violent drug smuggler? Some criminal CBP is responsible is trying to take down? No, it doesn't seem so. In fact, CBP doesn't seem to have provided any evidence at all of criminal wrongdoing when it faxed over to Twitter an order to turn over private info from an account. From all appearances they're trying to unmask a trouble-maker (or several of them) claiming to be rebellious immigration officials who oppose President Donald Trump's massive deportation and border control efforts. The account CBP is trying to get the goods on operates under the handle @ALT_uscis and the name "ALT Immigration." It is one of several Twitter accounts that popped up after Trump's inauguration claiming to represent officials at various federal agencies intending to resist Trump's agendas from within. To be clear, though: This doesn't mean these Twitter accounts actually are run by federal employees with inside information. Anybody can claim to be anything on the Internet. Many of these "rogue" accounts are likely to be totally fake. But in the event this Twitter user actually is real, at least two CBP agents are trying to find out who he is. According to a lawsuit filed yesterday in Northern California on behalf of Twitter, the agents didn't even bother to claim that the Twitter account was connected to criminal activity. Instead, they used what is obviously some boilerplate customs text used to examine import records. That's actually the federal regulation they invoke as well—according to the lawsuit, the CBP agent invoked a federal law designed to permit the feds to crack open a business's books to investigate data connected to importing goods as an authority to demand Twitter reveal an account user's name. So Twitter is both resisting to protect the anonymity of its users from unmasking that is tied to no criminal complaint whatsoever and also pointing out that this is not the federal code used when the government does have what it believes to be a legitimate reason. There is, given the circumstances, a desire to want to raise an eyebrow at the Trump administration right now because of its outrage that the identities of members of Trump's transition team may have been unmasked in intelligence reports connected to surveillance of foreign officials. Media coverage of this weird little fight is heavy on emphasizing that Twitter is suing the "Trump administration" in order to suppress the order to reveal the user's identity. But it would not and should not come as a surprise—given the general incompetence in how the demand was administered—if we were to discover that these CBP agents were acting on their own and that this whole effort doesn't actually go that far up the chain of authority. In the end, this feels more reminiscent of petty local government and police officials attempting to reveal the names of people who operate web sites or Twitter accounts that anonymously mock them. Remember how the mayor of Peoria, Illinois, sent out the police to arrest the guy who operated a parody Twitter account that made fun of him back in 2014? He refused to acknowledge he did anything wrong. He was just reelected mayor earlier in the week, incidentally. It wouldn't come as a surprise if a judge struck down the CBP agents demand for information here given the misapplied federal regulations. It also wouldn't come as a surprise if CBP quietly withdraws or drops the order. It is nevertheless a very important reminder of how petty government officials are and exactly why it's important that Americans protect their right to k[...]

Polygamists Singled Out Again in Utah

Wed, 05 Apr 2017 07:28:00 -0400

Under Utah's previous polygamy law, marriage to more than one person—bigamy—was a felony offense punishable by up to five years in prison. A new measure (HB99), signed into law by Utah Gov. Gary Herbert on March 28, doesn't change that. But it does tweak the definition of bigamy and add enhanced penalties for people who commit other crimes in conjunction with plural marriage. The change stems from a lawsuit filed by Kody Brown and his spouses, who starred in the popular reality-TV series Sister Wives. Kody is legally married to his first wife, Meri, and "spiritually married" to three other women. After Utah police began investigating the family, in 2010, the Browns moved out of state to Nevada. They later filed a suit alleging that Utah's bigamy law is unconstitutional, as it doesn't merely prevent people from having multiple state-sanctioned marriages but prescribes what people can call their private relationships and how they can practice their faith. After all, a married couple in Utah can legally bring in myriad long-term lovers to live with them. A polyamorous triad can all live together and be in a joint relationship without state interference. But the moment participants in such arrangements refer to more than one relationship as a marriage, they are suddenly committing a felony. If it isn't unconstitutional, it's at least incredibly silly. The Brown family was initially victorious in their legal challenge, with a federal judge ruling in their favor in 2013. But the U.S. Court of Appeals for the 10th Circuit ruled in 2016 that the Browns had no standing to challenge Utah's law, since they had never actually been prosecuted for bigamy. The Browns appealed to the U.S. Supreme Court, which has declined to hear the case. This year, Utah lawmakers decided to double-down on the state's bigamy statute. Under HB 99, bigamy becomes a second-degree felony if a defendant is also suspected of fraud, domestic abuse, child abuse, sexual assault, human smuggling, or human trafficking; as such, it's punishable by up to 15 years in prison, in addition to any penalties for those separate offenses. Anyone fleeing from abuse in a polygamous relationship is now immune from bigamy prosecution. The law also changes the definition of bigamy by removing references to gender, making it now applicable to women with multiple husbands or same-sex polygamous relationships. And it requires both cohabitation and "purport[ing] to marry" someone when either you or they are already married for bigamy to be committed; before only one or the other was required. There are thought to be about 30,000 polygamists in Utah. What will the new law mean for them? Probably not much, according to The Salt Lake Tribune: Polygamists and some sympathetic attorneys have said HB99 will be unconstitutional if it's applied to consenting adults who choose to live as such a family. Joe Darger, who has three wives and was the most vocal opponent of the bill, has dared prosecutors to charge him. Darger doesn't think that will happen. After Herbert signed the bill Tuesday, Darger said the goal of HB99 appeared to be to keep polygamists silent by making their lifestyles a crime. "This is more for persecution than it ever is intended for prosecution," the polygamist said. The Utah attorney general's office and every county attorney who has been asked has said his or her policies are not to prosecute families like the Dargers. Assistant Attorney General Parker Douglas testified to the Legislature that prosecutors are concerned with polygamists who commit fraud and abuse. In other words, lawmakers seem to know the statute could be unconstitutional but say cool because they don't plan to actually enforce it against anyone but bad people. We've heard similarly from Donald Trump recently with regard to deportations. It hasn't held true for immigration enforcement, however, and it's unl[...]

FDR's War Against the Press

Wed, 05 Apr 2017 06:00:00 -0400

Donald Trump's champions and critics agree: He is rewriting the relationship between the press and the presidency. On the pro-Trump side, Newt Gingrich claims that the president's "brilliant" use of Twitter allows him "very quickly over and over to set the agenda at almost no cost," while Press Secretary Sean Spicer says it gives him a "direct pipeline to the American people." Critics highlight how Trump sidelines the press by bullying his critics, rebuffing hard questions, and favoring sympathetic outlets such as Breitbart. They have expressed alarm about Trump's call to "open up" libel laws as a means to quash "horrible and false" stories. Another president, Franklin Delano Roosevelt, revised the media rules in equally profound ways. Like Trump, he feuded with the mainstream media; like Trump, he used a new medium as a direct pipeline to the people. He also used the government's machinery to suppress unfavorable coverage, a fate we hope to avoid in the age of Trump. Manipulating the Media Roosevelt, like Trump, had a good relationship with the press at the start of his public career. Journalists found him quotable and amusing. But by 1934 this honeymoon had frayed, and a year later it had given way to a war of words. Roosevelt complained constantly about the press's "poisonous propaganda." With a tone of mock sympathy, he reassured reporters that he understood they were not to blame, because publishers told them what to write. In the 1936 election, Roosevelt claimed that 85 percent of the newspapers were against him. In the standard work on the subject, historian Graham J. White finds that the actual percentage was much lower and the print press generally gave FDR balanced news coverage, but most editorialists and columnists were indeed opposed to the administration. Convinced that the media were out to get him, Roosevelt warned in 1938 that "our newspapers cannot be edited in the interests of the general public, from the counting room. And I wish we could have a national symposium on that question, particularly in relation to the freedom of the press. How many bogies are conjured up by invoking that greatly overworked phrase?" Roosevelt's relationship with radio was warmer. The key distinction was that broadcasters operated in an entirely different political context: Thanks to federal rules and administrators, they had to tread much more lightly than newspapers did. At its inception in 1934, the Federal Communications Commission (FCC) reduced the license renewal period for stations from three years to only six months. Meanwhile, Roosevelt tapped Herbert L. Pettey as secretary of the FCC (and its predecessor, the Federal Radio Commission). Pettey had overseen radio for Roosevelt in the 1932 campaign. After his appointment, he worked in tandem with the Democratic National Committee to handle "radio matters" with both the networks and local stations. It did not take long for broadcasters to get the message. NBC, for example, announced that it was limiting broadcasts "contrary to the policies of the United States government." CBS Vice President Henry A. Bellows said that "no broadcast would be permitted over the Columbia Broadcasting System that in any way was critical of any policy of the Administration." He elaborated "that the Columbia system was at the disposal of President Roosevelt and his administration and they would permit no broadcast that did not have his approval." Local station owners and network executives alike took it for granted, as Editor and Publisher observed, that each station had "to dance to Government tunes because it is under Government license." Some dissident radio commentators, such as Father Charles Coughlin and Boake Carter, gained wide audiences. But radio as a whole was firmly pro-Roosevelt—and both Coughlin and Cockran were eventually forced off the air for pushing the env[...]

Chelsea Clinton’s Lead Trial Balloon

Tue, 04 Apr 2017 14:52:00 -0400

Chelsea Clinton and I have quite a few things in common. For instance, we both live in New York City (albeit in not-so-comparable digs). We both have appeared on NBC-family news programming, though her per-minute rate is roughly $26,724 higher than mine. And we both have had critical things to say about Donald Trump, though I'm not friends with the family. Yet somehow I'm never impelled to issue wink-wink nudge-nudge denials about, you know, RUNNING FOR PRESIDENT. "I clearly don't agree with our President but I'm not the right person to run to defeat him in 2020," Norah O'Donnell tweeted out this morning from a Clinton appearance on CBS. As with the target of Clinton's critique, the full context here is considerably worse, starting with the real villain of the piece, CBS This Morning anchor Gayle King. "I feel like déjà vu with your mom all over again," King gushed. "Are you running, are you running, are you running?" "No. No, no, no," an aww-shucks who-me Clinton replied, before quickly turning the corner: Um, but I do think it's important that we be talking about all the different ways that is possible to engage in the world. And I think being a citizen isn't something that just happens in an election year. I think it's something that kinda is a call to action for each one of us, Gayle, every single day. And I think there are lots of ways to get involved; clearly running for public office is one of those. I think to run for public office, though, a few things have to be true. I think you have to have a clear vision of what you would do, kind of, in a given job. I think you have to have a clear sense that you're the best person for that job. And right now, you know, I'm really lucky—I live in a neighborhood here in New York City where I support my city councilwoman, I have a major, not-so-secret girl crush on our Public Advocate, Tish James. I support our mayor, I love my congresswoman, our senators. I clearly don't agree, you know, with our president, but I'm definitely not the right person to run to defeat him in 2020. So right now, the answer is no. But I think we all need to be asking ourselves that question periodically. And I hope that a lot of young people are gonna use the election to think, "Wow, like, should I run for public office? Am I the right person for a given job?" Whether it's a school board or a senator. This excruciating string of political banalities and verbal italics, delivered in support of Clinton's activism-for-kidz primer It's Your World: Get Informed, Get Inspired & Get Going!, is even worse to experience audio-visually. One hopes, despite all leading indicators to the contrary, that the absurdity of Chelsea Clinton answering presidential rumors with "So right now, the answer is no" will put an embarrassed stop to what Commentary's Noah Rothman has described as "the contrived, media-driven campaign to fabricate Chelsea Clinton into a figure of political and cultural relevance." But then again, Rothman wrote those words five weeks ago, and Clinton has been featured since then in at least 10 headlines at The Hill alone (sample: "Chelsea Clinton knocks ObamaCare replacement plan," "Chelsea Clinton plans new children's book: 'She Persisted,'" and "Chelsea Clinton fuels speculation of political run"). The nadir of this puzzlingly persistent genre came in this L.A. Times op-ed by Ann Friedman: "Just like her mother, Chelsea Clinton never gets a break." It's hard out here for a (generously compensated) board member of Expedia and IAC/InterActiveCorp! I don't want to go full Jacobin mag here—I'm not quite prepared to sign off on Matt Bruenig's conclusion that "You could not put together a more unappealing force in the world than what Chelsea Clinton represents, personally or politically." But if enough foolish journalists are insisting on making Chels[...]

Eugene Volokh: Free Speech on Campus

Mon, 03 Apr 2017 10:00:00 -0400

Eugene Volokh has a few things to say about things that aren't supposed to be said. Volokh, a professor of free speech law at U.C.L.A., has seen books banned, professors censored, and the ordinary expression of students stifled on university campuses across the nation.

Volokh believes free speech and open inquiry, once paramount values of higher education, are increasingly jeopardized by restrictive university speech codes. Instead of formally banning speech, speech codes discourage broad categories of human expression. "Hate speech. Harassment. Micro-aggressions," Volokh says. "Often they're not defined. They're just assumed to be bad, assumed they're something we need to ban."

Volokh spoke at Reason Weekend, the annual event held by Reason Foundation.

Edited by Todd Krainin. Cameras by Jim Epstein and Meredith Bragg.

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Proposed Tweak to Internet Law Could Spur Seismic Shifts in Web as We Know It

Sun, 02 Apr 2017 10:32:00 -0400

A draft bill in the House of Representatives would add sex trafficking to the list of crimes excluded from the protection of the Communication Decency Act (CDA), a Geocities-era law with an important provision on internet publishing. That provision—Section 230—would prove crucial to the development of the "World Wide Web" as we know it, allowing for a world in which social networks and participatory media could thrive. The new House proposal is portrayed as a mere tweak to Section 230, one which would make it easier to catch bad guys while having little effect on online communication. Don't believe it. Simply put, Section 230 protects web publishers and platforms—from Facebook and Reddit to The New York Times to—from being legally culpable for things that third parties post or upload, at least when it comes to state crimes and civil lawsuits. (Federal criminal offenses are not afforded Section 230 protection.) If you're found to be criminally harassing someone via Twitter, the company can't be prosecuted for it. If a magazine commenter makes libelous statements, the publication can't be sued for libel. If a 16-year-old meets a 19-year-old on Facebook and they begin a sexual relationship, Facebook can't be charged for statuatory rape. And so on. "It's the reason I can't sue [Snapchat CEO] Evan Spiegel for harassment if a dude sends me unsolicited pictures of his dick on Snapchat," writes Kate Knibbs in this excellent and detailed piece about adult-advertising and Section 230. "This protection has been absolutely essential to the development of the internet in this country and really around the world," the Center for Democracy & Technology's Emma Llansó told Knibbs. Without it, web providers would "be in court all the time. And they'd run up inordinately high legal bills, even if they were ultimately successful in defending a case." The new House measure, sponsored by Rep. Ann Wagner (R-Missouri) and dubbed the "No Immunity for Sex Traffickers Online Act," would carve out an exception to Section 230 for sex-trafficking offenses involving minors. Supporters portray it as a way to "hold sex traffickers accountable," but we already have sufficient penalties—at the state and federal level—for people who force, decieve, or coerce others into prostitution, as well as for anyone directly involved in the prostitution (forced or not) of a minor. And nothing in Section 230 of the CDA, nor in this new proposal, affects the way we treat folks found to be sexually exploiting others. What the change would do is make it possible for states to indict any app, website, or platform that introduces an underage person to a possible sex buyer as a conspirator in sex trafficking. And it would allow any underage person who was paid for sex to subsequently sue any website or web service remotely involved in the transaction. To be very clear, the change would not merely apply to classified-ad sites like Backpage, or to sites and services specializing in escort advertising. Facebook, Snapchat, Instagram, and similar social platforms have all helped introduce underage sex-trafficking victims to perpetrators in recent U.S. cases. Victims often use use popular email providers, messaging apps, and text messaging to communicate with clients (police have been fond of late with charging sex workers with cell phones or laptops for felony possession of the instruments of a crime). Perhaps prosecutors won't go after these sites and services (I have my doubts), but regardless, victims can. With the proposed change, victims will have the right to sue any third-party web service that enabled their participation or exploitation in the sex trade. And in this case, victim means anyone under 18 whom someone paid for sex, regardless of whether [...]

Trump Wants to 'Change Libel Laws' So That Truth Is No Defense

Fri, 31 Mar 2017 07:00:00 -0400

Yesterday on Twitter, President Trump complained about The New York Times (which he had previously identified as an "enemy of the American People") and suggested that its coverage could be improved by making it easier for public figures like him to file successful defamation lawsuits: "The failing @nytimes has disgraced the media world. Gotten me wrong for two solid years. Change libel laws?" The tweet recalled comments Trump made during his presidential campaign last year, when he said, "I'm going to open up our libel laws" so that "when The New York Times writes a hit piece which is a total disgrace or when The Washington Post...writes a hit piece, we can sue them and win money instead of having no chance of winning because they're totally protected." As New York Times legal writer Adam Liptak points out (not for the first time), the president actually has no power to "open up our libel laws," since libel "is a state-law tort, meaning that state courts and state legislatures have defined its contours." Furthermore, the Supreme Court has said the First Amendment limits the ability of politicians and other public figures to recover damages when a journalist makes them look bad: They have to show not only that a reputation-damaging story was false but that the author knew, or at least suspected, it was false. That "actual malice" standard has been the law for more than half a century, since the Court decided New York Times v. Sullivan. "Changing New York Times v. Sullivan would require either the Supreme Court to overrule it or a constitutional amendment," Liptak writes. "Neither is remotely likely." Yesterday's tweet shows that Trump's misunderstanding of libel law goes beyond his ignorance of how it is made and how it is constrained by the First Amendment. His tweet links to a piece in which New York Post columnist John Crudele criticizes the Times for omitting relevant information from its coverage of Trump's widely derided claim that "President Obama was tapping my phones in October." Crudele notes that the Times reported last January, under the print headline "Wiretapped Data Used in Inquiry of Trump Aides," that "American law enforcement and intelligence agencies are examining intercepted communications and financial transactions as part of a broad investigation into possible links between Russian officials and associates of President-elect Donald J. Trump." Trump says that article confirms his claim about Obama. It doesn't, as Crudele concedes. But he argues that the story "does make Trump's accusation look a little less crazy" and should have been mentioned in coverage of the controversy about Obama's alleged wiretapping of Trump Tower. Even if you think Crudele has a point, there is nothing remotely libelous about the articles he is criticizing. They may be incomplete, but they are not defamatory, because they are not false. As evidence of the need to "change libel laws," Trump cites unfavorable press coverage that is accurate but arguably lacks context. Even if New York Times v. Sullivan had never happened, such a complaint would not justify a libel claim, which has to assert that the defendant said something that was verifiably false. Without that threshold requirement, journalism would be financially untenable, because disagreements about its quality would be resolved through litigation instead of criticism and public debate. Trump does not seem to grasp that journalism can be not just negative but unfair, unbalanced, or misleading without being libelous (which helps explain why he threatens to sue people at the drop of a hat). When he complains that the Times has "gotten me wrong for two solid years," he may mean that the paper underestimated him, that it consistently portrayed him in a [...]

SCOTUS Agrees That a Ban on Credit Card Surcharges Regulates Speech

Thu, 30 Mar 2017 08:30:00 -0400

The state of New York forbids merchants to impose a surcharge on customers who use credit cards rather than cash, checks, or debit cards, but it allows them to offer a discount for cash. A cash discount amounts to the same thing economically but not psychologically: Calling the difference in price a surcharge draws attention to the fact that credit card companies charge merchants a fee (typically 2 percent to 3 percent) for each transaction, and it probably is more effective at encouraging cash purchases, since people tend to feel losses more than gains. Since the surcharge ban restricts the way retailers communicate prices, five New York businesses challenged it on First Amendment grounds, and yesterday the Supreme Court gave their case a boost by agreeing that the law regulates speech. In 2015 the U.S. Court of Appeals for the 2nd Circuit dismissed the First Amendment challenge, ruling that New York's law regulates conduct—the prices that merchants charge—rather than speech. But as Chief Justice John Roberts points out in a majority opinion joined by four other justices (Clarence Thomas, Anthony Kennedy, Ruth Bader Ginsburg, and Elena Kagan), New York businesses remain free to set their own prices and even to charge cash and credit customers different amounts. But they are not free to describe those prices the way they prefer: The law tells merchants nothing about the amount they are allowed to collect from a cash or credit card payer. Sellers are free to charge $10 for cash and $9.70, $10, $10.30, or any other amount for credit. What the law does regulate is how sellers may communicate their prices. A merchant who wants to charge $10 for cash and $10.30 for credit may not convey that price any way he pleases. He is not free to say "$10, with a 3% credit card surcharge" or "$10, plus $0.30 for credit" because both of those displays identify a single sticker price—$10—that is less than the amount credit card users will be charged. Instead, if the merchant wishes to post a single sticker price, he must display $10.30 as his sticker price. Roberts notes that the plaintiffs have a strong financial interest in steering customers toward cash, since "they pay tens of thousands of dollars every year to credit card companies." In addition to encouraging cash purchases, the merchants "want to make clear that they are not the bad guys—that the credit card companies, not the merchants, are responsible for the higher prices." Since the plaintiffs "believe that surcharges for credit are more effective than discounts for cash in accomplishing these goals," they are seeking permission to talk about prices in a way the law forbids. Having decided that the ban on surcharges for credit card purchases regulates speech, the Court instructs the 2nd Circuit to consider whether the law passes muster under the First Amendment. "The Court addresses only one part of one half of petitioners' First Amendment challenge to the New York statute at issue here," Justice Sonia Sotomayor says in a concurring opinion joined by Justice Samuel Alito. "This quarter-loaf outcome is worse than none." She agrees that the case should be sent back to the appeals court but says the meaning of the statute is insufficiently clear to go further than that. Sotomayor thinks the surcharge ban can be read in at least three different ways: as requiring the same prices for all customers regardless of how they pay, as banning the kind of signs described by Roberts, or as restricting even the terminology used to describe price differences (surcharge vs. discount). Before conducting a First Amendment analysis, Sotomayor says, the 2nd Circuit should ask the New York Court of Appeals for "a definitive interpretation o[...]

Just What America Needs: A Government Truth Squad

Wed, 29 Mar 2017 12:01:00 -0400

If there's one thing this country needs, it's a Ministry of Truth. Just ask California lawmakers. A lot of fake news has been floating around in the ether during the past few months, as anyone who has read the mainstream press can attest. Some of the stuff is obviously fictional, such as the story reporting that the pope endorsed Donald Trump for president. That was plainly absurd; everybody knows Francis was a Jim Gilmore man all the way. But sometimes it's a little harder to tell. When the satirical news magazine The Onion reports "Military Aides Try To Cheer Up Kim Jong-Un After Failed Missile Launch By Putting On Surprise Execution," you have to wonder. Maybe it's worth Googling, just to be sure. Moreover, a certain segment of the public is satire-impaired. This has led to the creation of sites such as and listicles such as "25 People Who Don't Realize The Onion Isn't A Real News Source," which post social-media reactions from people like Facebook user "T." When The Onion reported, "New Sony Nose Buds Allow Users to Blast Different Smells Into Nostrils," T responded: "Dumbest [expletive] I ever read. Even if they worked who wants to go around with what looks like ear buds in your nose, u would look like a complete idiot." Yes, u would. Not every false thing on the internet is satire, however, and some false stories can do real harm. Example: Pizzagate, in which a family-run Washington pizzeria was accused of running a child-sex ring connected to Hillary Clinton and her former campaign chairman, John Podesta. The story became a nightmare for the owners of the pizzaria, who suffered harassment and death threats for months. Conspiracy-monger Alex Jones has since apologized for his role in spreading the story, but that didn't keep protesters from showing up in D.C. a day later to demand that someone investigate the story anyhow. The Truth Is Out There. Episodes such as that are rare, but false political claims on the internet are ubiquitous, and Serious People consider this a Very Bad Thing. Now a lawmaker in California has determined to do something about it. Assembly member Ed Chau has introduced legislation that—you'd better sit down for this part—would render it illegal to knowingly "make, publish or circulate on an Internet Web site" a "false or deceptive statement" meant to influence the vote on any issue or candidate. Let the government punish people for false statements? What a great idea! That has worked out just splendidly for much of human history, has it not? Note that the measure would outlaw not only the making of false statements, but also the publishing and circulation of them—which presumably means that if you share a false post on Facebook or retweet a link to a false story, then California's speech police could come after you, too. (It's not even clear that you would have to know the story is false: the bill's text makes it illegal "to knowingly ... make, publish or circulate" a false story, not "to circulate a story while knowing it to be false.") Note also that the statement doesn't even have to be false, which can be hard enough to prove. (E.g., "Congressman Jones is an extremist.") You can get crosswise with the law for statements that are merely "deceptive." Hmmm. Is it deceptive to write, "Jones' proposal does little to help the poor"? Do we need a government definition of "little" to settle the matter? Probably. And probably one for "help" and "poor," too. To be fair, having the government dictate what qualifies as true in politics makes a certain amount of sense from a Platonic standpoint. Doctors are trained to heal—but as Socrates points out in the Republic, the result of such traini[...]